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September 14, 1976

DONNA J. WAUGH, Individually, and CHARLES WAUGH, In His Own Right
GAUDIO BROS., INC., a Subsidiary of PENN FRUIT CO., INC.

The opinion of the court was delivered by: BECHTLE



 Presently before the Court is defendant's motion seeking summary judgment *fn1" in its favor upon the claim of Charles Waugh in this diversity action. For the reasons stated below, the Court will dismiss the claim of Charles Waugh set forth in Count II of the complaint.

 The facts, as alleged in the complaint, are as follows: Charles Waugh is the father of Donna Waugh. In October, 1973, Donna Waugh was employed as a cashier at a hotel. At that time, she was subjected to a series of "interrogations" conducted by supervisory personnel at the hotel concerning her honesty and integrity. In December, 1973, conversations were held between management personnel of the hotel and management personnel of defendant, presumably her former employer, which resulted in the termination of Donna Waugh's employment at the hotel. The complaint alleges that defendant's personnel defamed her character by informing the hotel that she was a thief, although they knew that the charge was untrue when they "falsely and maliciously" made it. Charles Waugh alleges that "as a direct and immediate result" of learning of defendant's defamation of his daughter, he became so upset and distraught that a prior coronary condition was aggravated and he suffered a coronary attack of a disabling nature, resulting in his great emotional distress and economic hardship.

 The question presented to the Court is whether Charles Waugh has stated a cause of action under Pennsylvania law. Although it is admitted that there is no Pennsylvania authority squarely holding that a parent has a cause of action for emotional distress resulting from the intentional defamation of a child, Waugh argues that such a result is suggested by Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) and Restatement (Second) of Torts § 46 (1965). *fn2" We disagree.

 In Papieves, plaintiffs alleged that they had suffered emotional disturbance and mental anguish as a direct consequence of the defendants' intentional acts of withholding the body of their slain son from them and burying it without authorization. The Supreme Court of Pennsylvania held that these allegations stated a cause of action sufficient to withstand a demurrer and recognized "the right of a decedent's nearest relatives to protection against intentional, outrageous or wanton conduct which is peculiarly calculated to cause them serious mental or emotional distress." 437 Pa. at 378, 263 A.2d at 121. The Papieves court acknowledged the developing line of authority holding that freedom from mental distress directly caused by wanton or outrageous conduct is entitled to legal protection independent of any other cause of action, but, at the same time, recognized that "the law cannot serve to guarantee all men's peace of mind" and that "any extension of legal liability to acts with cause emotional distress is not without its problems." Id. at 378-379, 263 A.2d at 121.

 We believe that sustaining Charles Waugh's claim in this case would result in an unwarranted extension of Pennsylvania law beyond its present state. Assuming, arguendo, that Section 46 of the Restatement (Second) of Torts has been adopted in its entirety as the law of Pennsylvania and that the defamation alleged here would qualify as extreme and outrageous conduct "beyond all possible bounds of decency" and "utterly intolerable in a civilized community" within the meaning of comment d to that section, we do not believe that this is one of those rare situations in which the plaintiff's presence at the time of defendant's conduct is unnecessary. See Restatement (Second) of Torts § 46(2)(a) and comment i. *fn3"

 There may possibly be a set of facts which would justify the recognition of a cause of action in favor of persons who suffer severe emotional distress due to the defamation of a member of their immediate family which comes to their attention sometime after it occurs. We only hold that to create such a new class of potential plaintiffs based on the facts in this case would not be a proper elaboration of current Pennsylvania law. Cf. Conway v. Spitz, 407 F. Supp. 536 (E.D.Pa. 1975). *fn4"

 An appropriate Order will be entered.


 AND NOW, TO WIT, this 14th day of September, 1976, IT IS ORDERED that Count II of the complaint, setting forth the claim of Charles Waugh, is dismissed.


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