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GERALDINE JONES v. NISSENBAUM (12/15/76)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 15, 1976.

GERALDINE JONES, TRUSTEE AD LITEM AND ADMINISTRATRIX, AND CARRIE TAYLOR, APPELLANTS,
v.
NISSENBAUM, RUDOLPH & SEIDNER, ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Philadelphia County of April 12, 1976 at No. 2688 of January Term, 1976. Trial Division, Law. No. 1594 October Term, 1976.

COUNSEL

H. David Kraut, Philadelphia, with him Ira Silverstein, Philadelphia, for appellants.

Frank H. Griffin, III, Philadelphia, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring and dissenting opinion, in which Spaeth, J., joins.

Author: Jacobs

[ 244 Pa. Super. Page 379]

This is an appeal from the sustaining of preliminary objections to the appellants' complaint in trespass and wrongful death against the above-named appellees alleging a cause of action for intentional infliction of mental distress. The plaintiffs were given leave to amend their complaint but failed to do so. This appeal followed.

Normally an order merely sustaining preliminary objections in the nature of a demurrer, without taking further action such as dismissing the complaint is not a final appealable order. Cherry v. Empire Mut. Ins. Co., 417 Pa. 7, 208 A.2d 470 (1965); International Union of United Brewery Workers v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965); Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954). However, where a party is so restricted in his ability to amend his complaint that he is virtually put out of court, such a ruling is not interlocutory and is appealable. Hudock v. Donegal Mutual Insurance Co., 438 Pa. 272, 264 A.2d 668 (1970); Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203

[ 244 Pa. Super. Page 380]

A.2d 796 (1964); International Union of United Brewery Workers v. Watkins, supra. In the instant case, the lower court ruled that the factual allegations raised in appellant's complaint did not constitute the outrageous conduct required for the tort of intentional infliction of mental distress. The appellants were, therefore, put out of court since the record reveals no new facts that could be alleged in order to comply with the lower court's requirement of a more specific pleading. We therefore are empowered to decide the case. And it is equally true that the only facts before this court are the averments of the complaint, and for present purposes the demurrer admits every well-pleaded material fact set forth in the pleading to which it is addressed and the inferences reasonably deducible therefrom but not conclusions of law. Commonwealth by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974); Buchanan v. Brentwood Federal Sav. & Loan Ass'n, 457 Pa. 135, 320 A.2d 117 (1974); Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970).

Turning to appellants' complaint it is apparent that it refers to two unrelated credit transactions. The first transaction between Johnnie Mae Harvey and Allied Consumer Discount Company (hereinafter called ALLIED) concerned the financing of an automobile on or about March, 1969. Sometime after Allied made the loan Mr. Harvey became disabled and lost his job. The car was then repossessed, judgment was confessed and execution proceedings were instituted on the basis of the confessed judgment. These proceedings were abandoned due to the United States District Court's decision in Swarb v. Lennox, 314 F.Supp. 1091 (E.D.Pa.1970), aff'd, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972).*fn1 On

[ 244 Pa. Super. Page 381]

August 2, 1974, appellees Nissenbaum, Rudolph & Seidner, through their law clerk Gary A. Rochestie sent a letter on behalf of their client Allied to the Harveys which stated that the Harveys' house was to be sold at a September 9, 1974 sheriff's sale and that they should contact their office in order to stay the sale.*fn2 The appellants' complaint also alleged that sometime in the summer of 1974 and unidentified agent of Allied's came to the Harvey's house and in the presence of one of the Harveys' neighbors told him that their house was to be sold and that "they would have 30 days in order to get their junk out." The Harveys then visited the law firm of Nissenbaum, Rudolph & Seidner, where they were again informed that their house was to be sold. It is alleged that this course of conduct by the appellees was the proximate cause of the subsequent deaths of the Harveys, in that the severe emotional distress caused them to suffer a stroke and heart failure.

The second transaction involves appellant Carrie Taylor who co-signed a note given to Allied by her son for

[ 244 Pa. Super. Page 382]

    the purchase of an automobile. Some time later Allied confessed judgment and on April 4, 1969 the car was stolen. It was later recovered and Allied collected $277.00 for damages under the insurance policy. Carrie Taylor made the payments on the loan after her son stopped doing so and continued to do so for a few months after Allied repossessed the automobile. She was sent a letter by the law firm identical to that sent the Harveys*fn3 and now alleges that this action of the appellees make out an action for intentional infliction of mental distress.

Any inquiry into this tort must begin with a reference to the Restatement (Second) of Torts § 46 (1965) which provides inter alia:

"(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."

Our Supreme Court in Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963), recognized the tort of intentional infliction of mental distress as stated in section 46 of the revised first Restatement of Torts and in Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) the court indicated that when presented with the proper case it would adopt the formulation of Section 46 of the Restatement (Second) of Torts. The paucity of Pennsylvania cases in this area reveals that the scope of this tort has yet to be defined in the case law of our state.

"The law has only recently recognized that the freedom from mental distress directly caused by wanton or outrageous conduct is entitled to legal protection independent of any other cause of action, and recent years have seen many legal developments in this regard." 437 Pa. at 378, 263 A.2d at 121.

[ 244 Pa. Super. Page 383]

    one of their neighbors that their house was to be sold, and that they had 30 days in which to get their junk out, although insulting and embarrassing, was not extreme or outrageous within the context of Section 46. Plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Restatement (Second) of Torts § 46, Comment d (1965). Nor can each of the appellee's conduct considered as a whole be characterized as within the type of the extreme dunning practices illustrated in cases in which other courts have found collecting creditors liable. See George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915 (1971); LaSalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424 (1934); Barnett v. Collection Service Co., 214 Iowa 1303, 242 N.W. 25 (1932).

Appellants further allege that the conduct was "extreme and outrageous" in that the appellees knew that execution proceedings could not be completed absent a hearing pursuant to Swarb v. Lennox and absent a revival of the judgment, as over five years had passed without a revival. Assuming this to be true,*fn5 appellants still have not shown the requisite conduct that is necessary to sustain an action under § 46 of the Restatement (Second) of Torts. These contentions may very well be valid defenses to any execution that would have been sought by the appellees, but they do not elevate the conduct of the appellees in pursuing their legal rights to "extreme and outrageous conduct."*fn6

[ 244 Pa. Super. Page 385]

The appellants have failed to plead all the elements of their case by the proper standards, and as such the lower court properly sustained the appellee's preliminary objections, for it was the duty of the court to determine, in the first instance, whether the appellee's conduct could reasonably be regarded as so extreme and outrageous as to permit recovery.

Order affirmed.

HOFFMAN, Judge, concurring and dissenting.

I concur in the Majority's conclusion that our Court has jurisdiction over this appeal, even though the lower court did not dismiss appellants' complaint without an oportunity to amend. However, I must dissent from the Majority's holding that appellants have failed to state a cause of action for intentional infliction of emotional distress. Therefore, I would reverse the order of the lower court sustaining appellees' preliminary objections to appellants' complaint.

Restatement of Torts (Second) § 46 (1965) provides, in pertinent part: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress, to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Comment d elaborates upon the standard enunciated by § 46: ". . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" Cf. Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970).

[ 244 Pa. Super. Page 386]

The Majority states that appellees' conduct was not "extreme and outrageous" within the meaning of § 46 of the Restatement (Second) of Torts, even if we assume that appellees knew that execution proceedings could not be completed absent a hearing pursuant to Swarb v. Lennox, 314 F.Supp. 1091 (E.D.Pa.1970), aff'd 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972), and a revival of judgment. See at pg. 383 of 244 Pa. Super., at pg. 773 of 368 A.2d. I believe, however, that it would be outrageous and unconscionable for appellees to threaten an imminent sheriff's sale of appellants' property without further notice if they knew that the sale could not possibly be held or completed.*fn1 Appellants allege that appellees knew that Swarb v. Lennox, supra, precluded execution on appellants' property absent a prior hearing on the merits of appellees' claim.*fn2 Appellants also allege that

[ 244 Pa. Super. Page 387]

    appellees knew that a sheriff's sale could not be held until appellees complied with the requisite procedures, including notice to appellants, for reviving confessed judgments.*fn3 Nevertheless, appellee, according to appellants' complaint, threatened an immediate sheriff's sale which could only be delayed by contacting appellee law firm or by paying the alleged debt; appellants would receive no other notice or opportunity to prevent the sale. In short, appellants aver that appellees intentionally used the threat of an immediate execution as a means of intimidation and harassment, despite the knowledge that such an execution would not be available unless appellees further complied with procedures designed to safeguard appellants' rights.*fn4 Assuming that all of appellants' above allegations are true, Eckborg v. Hyde-Murphy Co., 442 Pa. 283, 276 A.2d 513 (1971); Shumaker v. Lear, 235 Pa. Super. 509, 345 A.2d 249 (1975), I believe that such an abuse of the legal system is outrageous and extreme conduct, actionable under § 46 of the Restatement (Second) of Torts, if it proximately causes severe emotional distress.

I find additional support for my position in Comment h to § 46 which provides as follows: ". . . It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct

[ 244 Pa. Super. Page 388]

    has been sufficiently extreme and outrageous to result in liability." At the very least, reasonable people may differ as to whether appellees' conduct has been sufficiently extreme and outrageous to result in liability. The order of the lower court should be reversed.


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