J-A08034-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

JOHN VINCENZI                                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

ROBERT M. MORGAN AND MORGAN
COMPANY AND SELECTIVE INSURANCE

                                                     No. 2108 EDA 2015


                   Appeal from the Order Entered June 11, 2015
              In the Court of Common Pleas of Northampton County
                  Civil Division at No(s): C-0048-CV-2013-11855


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 18, 2016

       John Vincenzi appeals pro se from the June 11, 2015 order granting

summary judgment in favor of Robert M. Morgan.1 After thorough review,

we affirm.2

       On November 30, 2011, Mr. Morgan was driving a truck owned by his

employer Morgan Company. The truck left the roadway, struck a concrete

pillar, three parked vehicles, one of which was a truck owned by Mr.
____________________________________________


1
   Defendants Morgan Company, Robert Morgan’s employer, and Selective
Insurance, his insurer, were previously dismissed as parties. Trial Court
Opinion, 6/11/15, at 1 n.1.
2
   Also pending before us is Mr. Vincenzi’s petition seeking permission to
append documents to his brief and reproduced record concerning post-
traumatic stress disorder. See Petition to Append Documents to Appellant’s
. . . Brief and Reproduced Record . . . and Appellant’s . . . Reply to Appellee
Brief. We deny the petition.



* Retired Senior Judge assigned to the Superior Court.
J-A08034-16



Vincenzi, and propelled the truck and pillar into the wall of Mr. Vincenzi’s

first floor kitchen. No one was injured in the apartment. At the time, Mr.

Vincenzi was returning to bed after using the bathroom, and he was located

in his bedroom on the second floor of the apartment directly above the

kitchen. He heard the impacts, felt the building shake, and “feared that an

earthquake had occurred.”    Opposition to Motion for Summary Judgment,

4/15/15, at ¶15. Mr. Vincenzi “knew that something had hit in the front of

the building and caused some serious destruction.”    Id.   According to Mr.

Vincenzi, “When I looked out the front window, my fears were confirmed.”

Id.

      Mr. Vincenzi commenced this action seeking recovery for negligent

infliction of emotional distress and for damage to his personal property

caused by Mr. Morgan’s negligence.       He sought damages in excess of

$50,000 for “trauma, traumatic stress, psychological trauma, post[-]

traumatic stress disorder, and emotional distress,” Amended Complaint,

3/21/14, at ¶3, and $2,703.99 in personal property damages. Id. at ¶¶6-7.

Summary judgment was granted in favor of Mr. Morgan on the property

damage claim as Mr. Vincenzi signed a release of that claim in exchange for

the sum of $3,212.74, and Mr. Vincenzi does not challenge that ruling on

appeal. Trial Court Opinion, 6/11/15, at 4-5; Order, 6/11/15.

      After the close of the pleadings, Mr. Morgan filed a motion for

summary judgment and brief in support on the remaining claim for negligent

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infliction of emotional distress.   He alleged that Mr. Vincenzi, who was

located in his second floor bedroom at the time of the accident, was not

injured, did not witness the incident, and did not know what had occurred

until he looked out his bedroom window.     Motion for Summary Judgment,

3/23/15, at ¶¶ 14-16. Based on those facts, he claimed that Mr. Vincenzi

could not, as a matter of law, recover damages for negligent infliction of

emotional distress because he was not in the zone of danger. Id. at ¶¶17-

18, 22.

      In opposition to summary judgment, Mr. Vincenzi claimed that he was

in the zone of danger based on his location and perceptions during the

accident. Opposition to Motion for Summary Judgment, 4/15/15, at ¶¶14-

16. Specifically, he alleged that, since his bedroom was located above the

kitchen, he heard the impacts and felt the building shake. Id. at ¶¶14-15.

He was terrified and worried that he might have a heart attack as he felt

chest pressure. Id. at ¶16.

      The trial court granted Mr. Morgan’s motion for summary judgment on

the claim for negligent infliction of emotional distress, concluding that Mr.

Vincenzi was not within the zone of danger. Furthermore, the court found

that, since Mr. Vincenzi did not see the crash, he did not know what

happened until the incident was over, and thus, could not have feared that

he would be impacted by the truck. Trial Court Opinion, 6/11/15, at 7.




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       Mr. Vincenzi filed a motion for reconsideration of the court’s order

granting summary judgment, which was denied on June 22, 2015.             He

timely appealed to this Court and challenges the trial court’s grant of

summary judgment on his negligent infliction of emotional distress claim.

Specifically, he maintains that he was awake, heard every sound in the

sequence of events, felt the building shake, knew the front of the building

had been impacted, and feared for his life, and thus he can maintain this

action for negligent infliction of emotional distress.3

       In reviewing the trial court’s entry of summary judgment, our scope of

review is plenary. Basile v. H & R Block, Inc., 761 A.2d 1115, 1118 (Pa.

2000).    “Our standard of review is clear: the trial court’s order will be

reversed only where it is established that the court committed an error of

law or clearly abused its discretion.” Id.

       Summary judgment is appropriate only in those cases where the
       record clearly demonstrates that there is no genuine issue of
       material fact and that the moving party is entitled to judgment
       as a matter of law. The reviewing court must view the record in
       the light most favorable to the nonmoving party, resolving all
       doubts as to the existence of a genuine issue of material fact
       against the moving party. When the facts are so clear that
       reasonable minds cannot differ, a trial court may properly enter
       summary judgment.


____________________________________________


3
   Mr. Vincenzi’s statement of the questions presented in his pro se brief
does not comport with our appellate rules. Nonetheless, we can discern his
argument and we will address it on its merits.



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Atcovitz v. Gulph Mills Tennis Club, 812 A.2d 1218, 1221-1222 (Pa.

2002) (internal citations omitted).

      At issue is a claim for negligent infliction of emotional distress.

      [T]he cause of action for negligent infliction of emotional distress
      is restricted to four factual scenarios: (1) situations where the
      defendant had a contractual or fiduciary duty toward the
      plaintiff; (2) the plaintiff was subjected to a physical impact; (3)
      the plaintiff was in a zone of danger, thereby reasonably
      experiencing a fear of impending physical injury; or (4) the
      plaintiff observed a tortious injury to a close relative.

Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 217 (Pa.Super. 2012)

(citations omitted).   The parties agree that the third scenario, the zone of

danger, is implicated herein.    The zone of danger rule affords a cause of

action for negligent infliction of emotional distress where “the plaintiff was in

personal danger of physical impact because of the direction of a negligent

force against him and where plaintiff actually did fear the physical impact.”

Schmidt v. Boardman Co., 11 A.3d 924, 948 (Pa. 2011) (quoting

Niederman v. Brodsky, 261 A.2d 84 (Pa. 1970)).

      Mr. Vincenzi maintains that he is entitled to recover for his post-

traumatic stress syndrome and inability to sleep as he was in the zone of

danger based on his location. Additionally, he cites Neff v. Lasso, 555 A.2d

1304 (Pa.Super. 1989), in support of his contention that, although he did

not see the impact, his fear of injury stemmed from his contemporaneous

observance of the impact through his other senses.




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J-A08034-16



      The threshold question is whether Mr. Vincenzi was in the zone of

danger. The trial court found that “there were no facts of record to indicate

that Vincenzi was ever in danger of physical impact.” Trial Court Opinion,

6/11/15, at 7.    We agree.     Mr. Vincenzi offered no evidence that the

negligent force was aimed at him or placed him in personal danger of

physical injury. Had he been located in the front yard, the kitchen, or even

the first floor of his home when the vehicle crashed into the building, he

could plausibly maintain that he was in danger from the impact of the

vehicle. Viewing the evidence in the light most favorable to Mr. Vincenzi, as

we must, there is simply no proof that he was in the zone of danger.

      The trial court concluded that Mr. Vincenzi “could not have been afraid

that he was going to be struck by the force of the truck because he did not

know that the incident occurred until after it was over.” Trial Court Opinion,

6/11/15, at 7. Mr. Vincenzi argued, based upon Neff, supra, that although

he did not see the impact, his fear stemmed from his contemporaneous

observation of the impact through his other senses. We find Mr. Vincenzi’s

underlying argument persuasive although Neff is factually and legally

inapposite.

      Neff was a bystander case. A bystander, one who is not within the

zone of danger himself, can recover for the shock sustained from his

contemporaneous observation of an impact upon a close family member.

Therein, wife was washing dishes and looking out the window. She saw her

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J-A08034-16



husband’s vehicle stopped in preparation for turning into their driveway,

observed a second vehicle approaching from the rear at a high rate of speed,

glanced away briefly, and then heard the vehicle crash into her husband’s

vehicle.    The issue therein was whether wife contemporaneously observed

the impact.      We held that wife’s aural perception of the impact, when

considered together with her visual observations both before and after

impact, produced sufficient direct and immediate awareness of the impact to

her husband to foreseeably result in emotional injury.     Wife’s awareness

from all individual senses and memory were determinative of whether the

shock resulted from a “sensory and contemporaneous” observance of the

accident involving her husband.

         In this zone of danger case, contemporaneous observance is not the

issue.     Had Mr. Vincenzi been in the zone of danger, the question would

have been whether he feared injury from impact.      Mr. Vincenzi contended

that due to the noise associated with repeated vehicle collisions and the

shaking from the truck’s impact into the front of his home, he feared he was

in danger of physical injury from impact. We disagree with the trial court

that Mr. Vincenzi could not fear impact because he did not know what

occurred, i.e., did not see what happened, until it was over.         As we

recognized in Neff, aural and other sensory perceptions of an impact, not

just visual observance, may cause or contribute to fear and emotional injury.

Whether Mr. Vincenzi feared physical injury from impact was not dependent

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J-A08034-16



on his knowledge or observance of the precise instrumentality of impact.

His other sensory impressions of the collisions may have supported a finding

that he feared injury from impact. Absent evidence that Mr. Vincenzi was in

the zone of danger, however, we do not reach this issue.

     Order affirmed.

     Judge Olson joins the Memorandum.

     Judge Strassburger files a Dissenting Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2016




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