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CAUTILLI v. GAF CORP.

January 12, 1982

Philip CAUTILLI
v.
GAF CORPORATION



The opinion of the court was delivered by: BECKER

OPINION AND ORDER

This memorandum considers the sufficiency of a pleading alleging a claim for intentional infliction of emotional distress. The question arises on the Rule 12(b)(6) motion of defendant GAF Corporation, former employer of plaintiff Philip Cautilli to dismiss the fifth count of the above-captioned complaint. We turn first to a description of the plaintiff's well-pleaded facts, all of which we take as true for the purpose of ruling on the motion.

 Sometime around October 1, 1978, plaintiff entered the employ of defendant as a chemist in the defendant's Latex Group. He was assigned to defendant's laboratory in Wayne, New Jersey, to which he commuted from his home in Feasterville, Pennsylvania. *fn1" About one year later, plaintiff received a salary increase, but no promotion. Dissatisfied, plaintiff immediately began to seek other employment. In the meantime, he continued to work in GAF's Latex Group.

 In September 1980, plaintiff learned that defendant was engaged in selling its Latex Group to Polysar Latex, a division of Polysar, Inc. ("Polysar"). Plaintiff learned that in the event of the contemplated sale, all latex research at the Wayne laboratory would be discontinued and that plaintiff, in the event that Polysar chose to retain him, would be required to move to one of several distant, and perhaps even foreign cities. The sale to Polysar became effective December 1, 1980. Plaintiff subsequently left his job rather than relocate his home and family in another city. This suit followed.

 On the basis of the incidents we have related, plaintiff sued GAF for (1) breach of contract; (2) unjust enrichment; (3) fraud; (4) common law conspiracy; and (5) intentional infliction of emotional distress. As we have noted, defendant has moved to dismiss the fifth cause of action for failure to state a claim upon which relief can be granted.

 Plaintiff's fifth cause of action is based upon allegations that prior to April 1980, and prior to seeking plaintiff's commitment to remain in its employ, defendant had determined to sell the Latex Group. Plaintiff alleges that he was intentionally induced to commit himself to defendant's employ in order to raise the sale price of the Latex Group. Furthermore, alleges plaintiff, defendant's officials and employees knew that the proposed sale would be detrimental and harmful to plaintiff, disregarded plaintiff's welfare, and in order to further defendant's goals, intentionally inflicted great emotional distress upon plaintiff.

 In considering defendant's motion, we are faced with a choice between Pennsylvania and New Jersey law. The choice of law question could be significant because Pennsylvania law appears to be more hospitable to plaintiff's claim than does New Jersey law. We need not, however, choose between the laws of these states because, as defendant correctly argues, under the law of either state, plaintiff has failed to state a claim for the intentional infliction of emotional stress.

 The Restatement (Second) of Torts ยง 46(1) (1965) sets forth elements of the tort of intentional infliction of emotional distress and the liabilities of a tortfeasor:

 
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 has adopted this definition of the tort. See, e.g., Lekich v. International Bsns. Mach. Corp., 469 F. Supp. 485 (E.D.Pa.1979) (Lord, C. J.); Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963); Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976). The only New Jersey court explicitly to recognize this tort also follows this definition. See Hume v. Bayer, 178 N.J.Super. 310, 428 A.2d 966 (1981).

 The Restatement's commentary sheds some light on the type of "extreme and outrageous conduct" which will give rise to a claim for the intentional infliction of emotional distress. The Restatement reserves liability for those whose behavior is extraordinarily despicable.

 
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 the fact to an average member of the ...

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