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GENE REUBEN v. JAMES L. O'BRIEN AND LAWRENCE ROSENWALD (05/14/82)

filed: May 14, 1982.

GENE REUBEN, APPELLANT,
v.
JAMES L. O'BRIEN AND LAWRENCE ROSENWALD, A/K/A LAWRENCE WM. ROSENWALD AND AETNA CASUALTY AND SURETY CO.



No. 2120 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 80-4555.

COUNSEL

Louis Lipschitz, Philadelphia, for appellant.

Robert Morris Cohen, Wyncote, for appellees.

Spaeth, Wieand and Johnson, JJ.

Author: Wieand

[ 299 Pa. Super. Page 374]

In this trespass action, in which the complaint contained counts of libel and negligent infliction of emotional distress, it was alleged that Lawrence Rosenwald, a constable, had posted a notice for the judicial sale of Gene Reuben's property after the underlying judgment had been paid. Rosenwald filed preliminary objections to Reuben's complaint, including a demurrer which asserted, inter alia, that the actions were barred by the six month statute of limitations contained in 42 Pa.C.S. § 5522(b)(1). The trial court agreed and entered judgment for Rosenwald. Reuben appealed.*fn1

"Because the lower court sustained [appellee's] preliminary objections in the nature of a demurrer to [appellant's] complaint, '[f]or purposes of appellate review, we must regard the allegations in [appellant's] complaint as true and accord them all the inferences reasonably deductible therefrom.' National Building Leasing, Inc. v. Byler, 252 Pa. Super. 370, 372, 381 A.2d 963, 964 (1977)." Brockett v. Carnes, 273 Pa. Super. 34, 36, 416 A.2d 1075, 1076 (1979).

[ 299 Pa. Super. Page 375]

The complaint contains allegations as follows: On November 18, 1978, Eric Klein (not a party to the instant action) filed a complaint in assumpsit against Reuben in Magistrate's Court 38-1-02 in Elkins Park, Montgomery County, to recover the sum of $138.00 allegedly due and owing for dry cleaning services. On December 6, 1978, judgment was entered by District Justice James L. O'Brien against Reuben for the amount of the claim. Thereafter, on March 29, 1979, Klein filed a Request for an Order of Execution, and this was issued the same day by District Justice O'Brien. On the following day, Lawrence Rosenwald, the Constable of Cheltenham Township, served appellant with the Order of Execution and a "Schedule of Property Levied Upon and Set Aside." On April 3, 1979, Reuben went to the office of the District Justice and paid the entire amount of the judgment, plus costs. Despite this payment, on April 7, 1979, Rosenwald posted a notice of Constable's Sale on Reuben's mailbox. Appellant's complaint alleged further that appellant had suffered mental distress and embarrassment as a result of the constable's posting of her property and requested general and punitive damages. The complaint was filed on March 17, 1980. Preliminary objections in the nature of a demurrer challenged the existence of a cause of action for negligent infliction of emotional distress and asserted that, in any event, appellant's causes of action were barred by the statute of limitations contained in 42 Pa.C.S. § 5522(b)(1).

The relevant portion of 42 Pa.C.S. § 5522 provides:

(b) Commencement of action required. -- The following actions and proceedings must be commenced within six months:

(1) An action against any officer of any government unit for anything done in the execution of his office, except an action subject to another ...


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