IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MELISSA ANSPACH, KURT A. :

ANSPACH, KAREN E. ANSPACH, :

:

Plaintiffs, :

:

v. : CIVIL ACTION

:

: No. 05-810

CITY OF PHILADELPHIA, :

DEPARTMENT OF PUBLIC :

HEALTH, et al, :

:

Defendants. :

:

MEMORANDUM AND ORDER

JOYNER, J. June 20, 2005

Via the motion now pending before this Court, Defendant

Jitendra N. Shah, M.D. moves to dismiss Counts VII, VIII, IX and

X of the Plaintiffs’ Complaint pursuant to Fed. R. Civ. P.

12(b)(6). For the reasons outlined below, the motion shall be

DENIED in part and GRANTED in part.

Factual Background

Plaintiff Melissa Anspach brings suit against Defendant

Jitendra Shah, M.D. for negligent supervision of the Pediatric

Ward of Philadelphia Health Care Center No. 10 (hereinafter, “the

Center”)(Count VII), negligent infliction of emotional distress

(Count VIII), and intentional infliction of emotional distress

(Count IX). Plaintiff’s parents, Kurt and Karen Anspach, also

Case 2:05-cv-00810-JCJ Document 17 Filed 06/20/05 Page 1 of 8
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bring suit against Defendant Shah for intentional infliction of

emotional distress (Count X).

On January 26, 2004, Plaintiff, then 16 years old, visited

the Center to request a pregnancy test. After that request was

denied, Plaintiff requested the “morning after pill.” Upon her

request for the medication, Plaintiff spoke with a social worker

and saw a nurse, who provided a quantity of pills. While it is

undisputed that Plaintiff received the pills without consulting

Defendant Shah, Plaintiff avers that Defendant Shah was the

person in charge of the Center’s pediatric ward. 

After taking her second dosage of pills as advised by the

social worker and nurse, Plaintiff experienced an allergic

reaction, which caused vomiting, severe stomach pain and subconjunctive hemorrhaging. Plaintiff asserts that her reaction

required emergency medical care and that she suffered emotional

distress in the form of anxiety and fear of death.

Legal Standard for Motion to Dismiss

In considering a motion to dismiss filed pursuant to Fed. R.

Civ. P. 12(b)(6), a court must consider only those facts alleged

in the complaint and accept all of the allegations as true. ALA,

Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3rd Cir. 1994). A motion

to dismiss may only be granted where the allegations fail to

state any claim upon which relief could be granted. Morse v.

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Lower Merion Sch. Dist., 132 F.3d 902, 906 (3rd Cir. 1997).

Discussion

Certificate of Merit Requirement

Defendant first argues that Count VII of the Plaintiff’s

complaint must be dismissed for failure to file a certificate of

merit. Under Pennsylvania law, “any action based upon an

allegation that a licensed professional deviated from an

acceptable professional standard” requires a certificate of merit

to be filed with the complaint or within sixty days thereafter.

Pa. R. Civ. P. 1042.3. For the purposes of this Motion to

Dismiss, Rule 1042.3 may be applied as controlling state

substantive law. Scaramuzza v. Sciola, 345 F. Supp. 2d 508, 510

(E.D.Pa 2004). 

Pennsylvania courts have not yet decided whether Rule 1042.3

requires a certificate of merit to be filed in cases alleging

negligent supervision of a medical ward. However, in New Jersey,

a similar affidavit of merit has been held to apply to all

malpractice actions except for "common knowledge cases when an

expert will not be called to testify that the care, skill or

knowledge of the defendant fell outside acceptable professional

or occupational standards or treatment practices." Hubbard v.

Reed, 774 A.2d 495, 497 (N.J. 2001). Similarly, New York courts

have determined that an affidavit of merit is needed in medical

Case 2:05-cv-00810-JCJ Document 17 Filed 06/20/05 Page 3 of 8
1 The certificate of merit erroneously referred to Count

VIII, the claim for negligent infliction of emotional distress, 

instead of Count VII, the claim for negligent supervision. 

Plaintiff is granted leave to correct this error.

4

malpractice actions "except as to matters within the ordinary

experience and knowledge of laypersons." Mosberg v. Elahi, 605

N.E.2d 353, 354 (N.Y. 1992) (citing Fiore v Galang, 478 N.E.2d

188, 189 (N.Y. App. Div. 1985)). Additionally, both New Jersey

and New York courts have concluded that an affidavit is required

in cases involving medical judgment. See Darwin v. Gooberman, 772

A.2d 399, 408 (N.J. Super. 2001); Caracci v. State, 577 N.Y.S.2d

925, 926 (N.Y. App. Div. 1991). Because Plaintiff contends that

Defendant negligently supervised the administration of birth

control pills at a health clinic, and supervision involves

medical judgment beyond the knowledge of laypersons, a

certificate of merit is required.

Attached to Plaintiff’s Memorandum in Opposition to the

Motion to Dismiss (Document No. 16) is a certificate of merit.1

Although Plaintiff failed to file the certificate within the

sixty-day period required under Rule 1042.3, Count VII will not

be dismissed now that the certification has been filed. 

Dismissal is not warranted because Plaintiff could re-file within

the two year statute of limitations provided by 42 Pa.C.S. §

5524. See Scaramuzza, 345 F.Supp. 2d. at 511 n.6 (citing Moore v.

Luchsinger, 862 A.2d 631 (Pa. Super. Ct. 2004)) (noting ability

Case 2:05-cv-00810-JCJ Document 17 Filed 06/20/05 Page 4 of 8
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to re-file under statute of limitations as a reason not to

dismiss). Thus, Defendant’s motion to dismiss for failure to

file a certificate of merit is denied.

Negligent Infliction of Emotional Distress

Defendant moves to dismiss Count VIII on the grounds that

negligent infliction of emotional distress is available only for

bystanders. Historically, this was the case, but Pennsylvania

courts have recently held that a cause of action for negligent

infliction of emotional distress may be sustained when “a

plaintiff sustains bodily injuries, which are accompanied by

fright or mental suffering directly traceable to the peril in

which the defendant’s negligence placed the plaintiff.” Long v.

Yingling, 700 A.2d 508, 516 (Pa. Super Ct. 1997), appeal denied,

Long v. Yingling, 725 A.2d 182 (Pa. 1998); see also Giannone v.

Ayne Inst., 290 F. Supp. 2d 553, 569 (E.D. Pa. 2003). Thus,

Plaintiff’s allegations, when viewed in the most favorable light,

may support a claim for negligent infliction of emotional

distress. Defendant’s motion to dismiss Count VIII is denied.

Intentional Infliction of Emotional Distress

Defendant moves to dismiss Counts IX and X on the grounds

that Defendant’s alleged acts or omissions do not rise to the

level of outrage required for a claim of intentional infliction

Case 2:05-cv-00810-JCJ Document 17 Filed 06/20/05 Page 5 of 8
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of emotional distress. Pennsylvania courts typically refer to

Restatement (Second) of Torts § 46 as establishing the “minimum

requirements” for a claim of intentional infliction of emotional

distress. See e.g. Taylor v. Albert Einstein Med. Ctr., 754 A.2d

650, 652 (Pa. 2000)(citing Kazatsky v. King David Mem’l. Park,

Inc., 527 A.2d 988 (Pa. 1987); Chuy v. Philadelphia Eagles

Football Club, 595 F.2d 1265, 1273 (3rd. Cir. 1979). Thus, an

action for intentional infliction of emotional distress requires

that (1) the conduct be extreme, (2) the conduct be intentional

and reckless, (3) the conduct cause emotional distress, and (4)

the distress be severe. Chuy, 595 F.2d at 1273. The degree of

outrageousness required is at least comparable to that required

to support an award of punitive damages. Wisiniewski v. JohnsManville Corp., 812 F.2d 81, 86 n.3 (3rd. Cir. 1987).

Plaintiff’s complaint, even when viewed in the most

favorable light, does not sufficiently allege that Defendant’s

acts or omissions rise to the level of outrageousness required

under Pennsylvania law. See e.g. Papieves v. Lawrence, 263 A.2d

118 (1970) (mishandling of a corpse); Hackney v. Woodring, 622

A.2d 286 (1993) (sexual assault). Moreover, while Plaintiff’s

allegations that the Defendant was aware of Plaintiff’s presence

at the Center may be enough to support a negligence claim, they

do not sufficiently allege that Defendant acted with the desire

and certainty necessary for intent, or with conscious disregard

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of a high probability that emotional distress would result. See

Kazatsky, 527 A.2d at 1275. Thus, Defendant’s motion to dismiss

Counts IX and X will be granted.

An appropriate Order follows.

Case 2:05-cv-00810-JCJ Document 17 Filed 06/20/05 Page 7 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MELISSA ANSPACH, KURT A. :

ANSPACH, KAREN E. ANSPACH, :

:

Plaintiffs, :

:

v. : CIVIL ACTION

:

CITY OF PHILADELPHIA, : No. 05-810

DEPARTMENT OF PUBLIC :

HEALTH, et al, :

:

Defendants. :

ORDER

AND NOW, this 20th day of June, 2005, upon consideration of

Defendant Jitendra N. Shah’s Motion to Dismiss Plaintiff’s

Complaint (Document No. 8) and Plaintiffs’ response thereto

(Document No. 16), it is hereby ORDERED that the Motion is DENIED

in part and GRANTED in part, as follows:

(1) The Motion to Dismiss Count VII for failure to file a

certificate of merit is DENIED;

(2) The Motion to Dismiss Count VIII is DENIED;

(3) The Motion to Dismiss Counts IX and X is GRANTED.

It is further ordered that Plaintiff amend the certificate

of merit to reflect Count VII.

BY THE COURT,

s/J. Curtis Joyner 

J. CURTIS JOYNER, J.

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