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decided: December 29, 1978.


No. 390 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Civil Action, Law, of Delaware County, at No. 77-8286.


Joel S. Robbins, Philadelphia, for appellant.

Timothy B. Barnard, Media, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. An opinion per curiam in support of affirmance is filed in which Price, Van der Voort and Hester, JJ., join. Hoffman, J. did not participate in the consideration or the decision in this case. Spaeth, J., files an opinion in support of reversal in which Cercone, J., joins. Jacobs, President Judge, joins in Part I of the opinion in support of reversal and would reverse.

Author: Per Curiam

[ 262 Pa. Super. Page 332]

The six Judges who decided this appeal being equally divided, the order is affirmed.

[ 262 Pa. Super. Page 333]

PER CURIAM opinion in support of affirmance:

This is an appeal from an order of the Court of Common Pleas, Civil Division, of Delaware County which sustained appellee's preliminary objection in the nature of a demurrer to Count Two of appellant's complaint.

Appellant, Anthony E. D'Ambrosio, Jr., was an insured of appellee's whereby a boat owned by the appellant was covered by the appellee-company. The boat allegedly was damaged in a storm and a claim was filed under the policy. After investigation by an adjuster, the claim was denied. The reason for denial does not appear in the record.

The appellant filed his action on the policy in assumpsit in Count One of the complaint, and in Trespass in Count Two, alleging the denial of the claim to be outrageous, malicious and oppressive, and as a result of this behavior, that appellant suffered severe mental distress, anxiety, embarrassment and humiliation. He further alleged that appellee's breach of the contract amounted to a willful, wanton and malicious tort, claiming punitive damages.

Appellant relies on Section 46 of the Restatement of Torts which states:

"(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."

Pennsylvania courts have recognized mental distress or emotional distress without physical injury or impact, but in very narrow and clear factual situations and never in a simple breach of contract situation. See Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970); Bowman v. Sears Roebuck & Co., 245 Pa. Super. 530, 369 A.2d 754 (1976).

To overrule the demurrer in this case would be to place insurance companies into a situation wherein they would be risking a tort action every time they denied insurance coverage no matter how frivolous the claim. Such a situation would ultimately result in ever-increasing insurance premiums

[ 262 Pa. Super. Page 334]

    to the benefit of no one. We cannot see how a refusal by an insurance company to pay an $832.23 claim can justifiably give rise to a cause of action for intentional infliction of mental distress or any other cause of action for mental distress. Because we find no authority for the tort action under Pennsylvania law we hold that the court below was correct in its dismissal of that cause of action.

Order affirmed.

SPAETH, Judge, in support of reversal:

This action arose because the defendant-insurer refused to pay a claim filed by the plaintiff-insured for damages to the plaintiff's boat. The complaint is in two counts, one in assumpsit, the other in trespass. The count in assumpsit alleges that the damages to the boat were covered by an insurance policy issued to the plaintiff by the defendant and demands damages in the amount of $832.23 as the cost of repairing the boat. The count in trespass alleges that the defendant denied the plaintiff's claim, refused to tell the plaintiff why, refused to pay the claim even after the plaintiff had conducted his own investigation and had informed the defendant that it was in error, and insinuated that the plaintiff was submitting a fraudulent claim. This count further alleges that the defendant's actions were outrageous, malicious, and constituted oppressive behaviour, and that as a result of them the plaintiff suffered severe emotional distress and undue worry about his credit standing and professional reputation as a police officer, and has

[ 262 Pa. Super. Page 335]

    been subjected to repeated demands for payment from the party who repaired the boat. The court below sustained a demurrer to the count in trespass. I should reverse.

It is established that a demurrer should be sustained only where it appears with certainty that upon the facts averred the law will not permit the plaintiff to recover. Papieves v. Kelly, 437 Pa. 373, 381, 263 A.2d 118, 122 (1970). All well-pleaded facts, and all inferences that may fairly be deduced from those facts, must be taken as true. City of Philadelphia v. Penn Plastering Corp., 434 Pa. 122, 253 A.2d 247 (1969). Any doubt must be resolved in favor of refusing to sustain the demurrer. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Here, while not a model pleading, the count in trespass alleges that the insurer breached the contract, refused to tell the plaintiff why it did, and refused to consider the plaintiff's own independent investigation. Taken as true, these allegations ...

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