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EVELYN MULLEN v. PAUL SUCHKO (08/08/80)

filed: August 8, 1980.

EVELYN MULLEN, APPELLANT,
v.
PAUL SUCHKO



No. 57 April Term, 1979, Appeal from Order of the Court of Common Pleas of Westmoreland County, Civil Division-Law No. 9861 of 1978.

COUNSEL

C. James Kutz, Greensburg, for appellant.

Thomas R. Ceraso, Greensburg, for appellee.

Spaeth, Hoffman and Van der Voort, JJ. Spaeth, J., files a concurring opinion.

Author: Hoffman

[ 279 Pa. Super. Page 501]

Appellant contends that the lower court erred in sustaining appellee's preliminary objections and dismissing her complaint in assumpsit and trespass. We agree and, accordingly, reverse the order of the court below and remand for further proceedings.

The facts as set forth in appellant's complaint are as follows: Appellant and appellee began seeing each other socially in late 1977. In early 1978, appellee took appellant with him on several overnight trips to cities in the United States and Mexico. Appellee repeatedly requested that appellant quit her job in order to be available to go on more trips with him. He promised that in exchange he "would take care of her for the rest of her life." In reliance upon appellee's promise, appellant quit her job of 33 years and embarked on various trips with appellee. In April of 1978, appellee moved into appellant's home and began paying many of appellant's expenses as well as giving her $500.00 per month. In July of 1978, appellee left appellant's home permanently and stopped assisting her financially.

Based upon these facts, appellant instituted suit against appellee in assumpsit and trespass. The assumpsit count alleged that, as a result of appellee's breach of his agreement to take care of her, appellant had suffered damages including: lost wages, lost employee benefits, and indebtedness to her family for support. Appellant sought judgment on this count of $108,143.17. The trespass count alleged that, as a result of appellee's conduct, appellant had suffered severe emotional distress for which she demanded judgment in excess of $10,000. Appellee filed preliminary objections in the nature of a demurrer to the complaint. With respect to the assumpsit count, appellee alleged that the contract asserted by appellant was contrary to public policy and void because appellee at all relevant times has been a married man. The lower court concluded that the assumpsit count did not set forth a valid cause of action because it was contrary to the public policy against contracts in consideration of sexual intercourse and against contracts facilitating

[ 279 Pa. Super. Page 502]

    divorce. Similarly, the court found that appellant had not made out a cause of action for intentional infliction of emotional distress because appellee's actions could not be deemed "outrageous." Appellant now appeals from the court's order dismissing her complaint.

In the case of Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976), our Supreme Court summarized the law to be applied in ruling on preliminary objections as follows:

The standards for sustaining preliminary objections in the nature of a demurrer are quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974); Borden v. Baldwin, 444 Pa. 577, 281 A.2d 892 (1971); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). In order to sustain the demurrer, it is essential that the plaintiff's complaint indicate on its face that his claim cannot be sustained and the law will not permit recovery. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Schott v. Westinghouse Electric Corp., 436 ...


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