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CUCINOTTI v. ORTMANN. (03/22/60)

March 22, 1960

CUCINOTTI, APPELLANT,
v.
ORTMANN.



Appeals, Nos. 208, 209 and 210, Jan. T., 1959, from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1955, No. 5342, in case of Nicholas Cucinotti et al. v. Edward Ortmann et al. Order affirmed.

COUNSEL

Norman Shigon, for appellants.

Alan R. Howe, with him Edward Davis, for appellees.

Before Jones, C. J., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Cohen

[ 399 Pa. Page 27]

OPINION BY MR. JUSTICE COHEN.

Plaintiffs instituted an action in trespass in the Court of Common Pleas No. 5 of Philadelphia County against defendants on the following complaint:

"2. On or about November 20, 1955, and at other divers times, the Defendants threatened the Plaintiffs by threats of violence that unless the Plaintiffs left the premises at 440 East Girard Avenue, Philadelphia, forthwith, that said Defendants would assault the Plaintiffs with great force and violence and would hit, beat and strike the Plaintiffs.

"3. As a result of said assault, the Plaintiffs were put in fear that a battery might be committed against them, and the Plaintiffs did suffer great emotional distress and are so suffering now and may continue so to suffer for a long time in the future. As a result thereof, the Plaintiffs have had to expend sums of money for medicine and medical attention and may continue to have to do so for a long time in the future."

Defendant Ulrich filed preliminary objections which the court below properly sustained on the ground that the complaint failed to state a cause of action in assault.

Generally speaking, an assault may be described as as act intended to put another person in reasonable apprehension of an immediate battery, and which succeeds in causing an apprehension of such battery. See 1 Harper & James, Law of Torts § 3.4 (1956). Words in themselves, no matter how threatening, do not constitute an assault; the actor must be in a position to carry out the threat immediately, and he must take some affirmative action to do so. Bechtel v. Combs, 70 Pa. Superior Ct. 503

[ 399 Pa. Page 28]

(1918); 1 Restatement, Torts § 31; Harper & James, supra, § 3.5 As the lower court correctly pointed out, the allegation in the original complaint amounted to nothing more than threats of violence and was, therefore, legally insufficient to support a cause of action in assault. The court, in its opinion, went on to say: "... to convert a threat into an assault... [requires] some act eo instanti to indiciate that the battery or other undesirable result will ensue immediately. Plaintiffs have not pleaded any such battery; indeed, we do not apprehend at this time whether or not plaintiffs are capable ...


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