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

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 ...


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