J-A01036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOYCE MIKOLAWSKI AND DENNIS              :   IN THE SUPERIOR COURT OF
 MIKOLAWSKI                               :        PENNSYLVANIA
                                          :
                    Appellants            :
                                          :
                                          :
              v.                          :
                                          :
                                          :   No. 1721 EDA 2018
 CURTIS ANTHONY YOUNG, JAROD              :
 BROWN, WELLINGTON MAYO AND               :
 YOUTH SERVICES AGENCY OF                 :
 PENNSYLVANIA                             :

             Appeal from the Judgment Entered June 8, 2018
  In the Court of Common Pleas of Carbon County Civil Division at No(s):
                                12-2311


BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED MAY 14, 2019

      Joyce and Dennis Mikolawski (“the Mikolawskis”) appeal from the

judgment entered in favor of the Youth Services Agency of Pennsylvania

(“YSA”). The Mikolawskis maintain that the trial court erred in granting YSA’s

Motion for Summary Judgment because it “misconstrued the issue raised by

YSA and, in turn, raised a completely different issue sua sponte.” Mikolawskis’

Br. at 23. We affirm.

      Three juveniles housed at a placement facility escaped and burglarized

the Mikolawskis’ home. The facility was controlled by YSA. During the

burglary, one of the juveniles brandished a log of firewood over Dennis

Mikolawski’s head in the presence of Mrs. Mikolawski. They then demanded

the Mikolawskis’ money and car keys. The juveniles then fled with the
J-A01036-19



Mikolawskis’ money and car. The Mikolawskis sustained no physical impact or

injury.

      The Mikolawskis subsequently filed this lawsuit against YSA and the

juvenile offenders. As against YSA, the Mikolawskis asserted claims of

negligent infliction of emotional distress (“NIED”). As the litigation progressed,

YSA filed a motion for summary judgment arguing that the Mikolawskis “failed

to produce sufficient evidence to support a negligence claim.” YSA’s Motion

for Summary Judgment (“MSJ”), filed 3/31/16, at ¶ 8. YSA argued that the

Mikolawskis failed to satisfy any of the four scenarios under which liability may

attach for NIED because its alleged negligence “did not result in any physical

impact” to the Mikolawskis. See YSA’s MSJ at ¶ 7; Brief in Support of MSJ,

filed 3/31/16, at 3.

      At argument on the motion, the Mikolawskis argued that “but for” YSA’s

alleged negligence, the Mikolawskis “would not have been placed in the ‘zone

of danger.’” N.T., Motion Hearing, 6/16/16, at 27. The court responded that

the question “becomes a proximate cause issue then.” Id. at 28. The

Mikolawskis’ counsel agreed that it was an issue of proximate cause, but

argued that proximate cause was for the jury, and even if it was not,

proximate cause was met. Id.

      The trial court granted YSA’s motion. It then held a bench trial on the

Mikolawskis’ claims against the juveniles and entered a verdict “in favor of

each Plaintiff in the amount of $50,000.00 and against the [j]uvenile

[d]efendants jointly and severally for a combined verdict of $100,000.00 in

                                      -2-
J-A01036-19



favor of Plaintiffs.” 1925(a) Op. at 3. The Mikolawskis filed a Motion for Post-

Trial Relief, which the trial court denied. This timely appeal followed.

      The Mikolawskis raise three issues for our review:

      I.     Whether the trial court abused its discretion by granting
             defendant Youth Services Agency of Pennsylvania’s Motion
             for Summary Judgment based on an issue that the court
             raised sua sponte that was different than the issue raised
             by Youth Services Agency of Pennsylvania and responded to
             by plaintiffs when the issue raised by Youth Services Agency
             of Pennsylvania was clear and unambiguous by its own
             terms and ripe for disposition.

      II.    Whether the trial court abused its discretion by granting
             defendant Youth Services Agency of Pennsylvania’s motion
             for summary judgment based on an issue that the court
             raised sua sponte when it was clear from the record that the
             issue raised by the court was premature.

      III.   Whether plaintiffs were prejudiced in that they were not
             given and full and fair opportunity to supplement the record
             to address the issue raised by the trial court sua sponte.

Mikowlawskis’ Br. at 4 (suggested answer).

      In their first issue, the Mikolawskis argue that the trial court erroneously

granted summary judgment based on an issue that it raised sua sponte. They

maintain that YSA’s motion for summary judgment raised only the issue of

the “impact rule.” Mikolawskis’ Brief at 26. They argue that the trial court

nonetheless sua sponte raised the issue of proximate cause. Id. at 28.

      “[S]ummary judgment is only appropriate in cases where there are no

genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. Pa.R.C.P. 1035.2(1).” Nicolaou v. Martin, 195 A.3d 880,

891 (Pa. 2018). “When considering a motion for summary judgment, the trial


                                      -3-
J-A01036-19



court must take all facts of record and reasonable inferences therefrom in a

light most favorable to the non-moving party and must resolve all doubts as

to the existence of a genuine issue of material fact against the moving party.”

Id. at 892. We reverse a grant of summary judgment if there has been an

error of law or an abuse of discretion. Id. Because the issue of whether there

is a genuine issue of material fact is a question of law, our standard of review

is de novo and our scope of review is plenary. Id.

      A cause of action for NIED may arise in any of four scenarios: (1)

situations where the defendant had a contractual or fiduciary duty to the

plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff

was in a zone of danger; or (4) the plaintiff observed a tortious injury to a

close relative. Toney v. Chester County Hosp., 961 A.2d 192, 197-98

(Pa.Super. 2008), affirmed by evenly divided court, 36 A.3d 83 (Pa. 2011);

see also Niederman v. Brodsky, 261 A.2d 84, 85 (Pa. 1970) (holding that

“recovery may be had from a negligent defendant, despite the fact that

appellant’s injuries arose in the absence of actual impact,” i.e., within the zone

of danger).

      Here, the Mikolawskis argued they were in the zone of danger. A claim

that the plaintiff was within the zone of danger is a question of proximate

cause. See Mazzagatti v. Everingham by Everingham, 516 A.2d 672, 679

(Pa. 1986). The Mikolawskis’ counsel conceded that such is the case during

oral argument before the trial court. Their claim that the trial court improperly

raised proximate cause sua sponte does not hold water.

                                      -4-
J-A01036-19



      The Mikolawskis’ second and third issues are likewise meritless. They

argue that the trial court’s ruling on proximate cause was premature because

discovery was not complete they therefore did not have a full and fair

opportunity to supplement the record on summary judgment. The difficulty

the Mikolawskis face is that in the trial court, they never identified any

discovery that was incomplete or any evidence or information that would have

refuted the trial court’s application of the “impact rule.” Although the

Mikolawskis did move for reconsideration of the summary judgment order, the

only evidence they produced at that time related to the alleged foreseeability

to YSA of the juveniles’ crimes. They at no time have identified any evidence

bearing on the impact rule. We affirm the entry of summary judgment in YSA’s

favor and against the Mikolawskis.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/19




                                     -5-
