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JOSEPH BARTANUS v. BERNARD V. LIS AND BERTHA LIS (07/27/84)

filed: July 27, 1984.

JOSEPH BARTANUS, SR., APPELLANT,
v.
BERNARD V. LIS AND BERTHA LIS, HIS WIFE AND SANDRA LIS MARSHALL



No. 250 Pittsburgh, 1982, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Washington County, August Term, 1981, No. 65.

COUNSEL

Edward Morascyzk, Washington, and B. Vandenburg Hall, Fairfax, Va., for appellant.

Roger J. Ecker, Washington, for appellees.

Rowley, Wieand and Hester, JJ. Wieand, J., files a concurring opinion.

Author: Rowley

[ 332 Pa. Super. Page 52]

This is a direct appeal from an order sustaining appellees' preliminary objections to appellant's complaint in trespass and entering judgment in favor of appellees. Appellant's complaint alleged that appellees, his sister and brother-in-law and their daughter, enticed and persuaded appellant's son to stay away from his father and that, as a result, appellant suffered severe emotional stress and physical disorders for which he is entitled to recover damages. Appellees filed preliminary objections to the complaint in the nature of a demurrer and also raising the bar of the two year statute of limitations. The trial court sustained the preliminary objections and entered judgment in favor of appellees, stating that the "definitive nature" of the objections precluded further pleading. This appeal followed.

Appellant contends that the facts averred in his complaint support causes of action for (1) alienation of his son's affections, (2) harboring, and (3) the intentional infliction of emotional distress. We affirm the trial court's order insofar as it sustained the demurrer to the purported causes of action for alienation of affections and harboring. However, we find that the complaint alleges sufficient facts to sustain a potential cause of action for the intentional infliction of emotional distress and, thus, insofar as the trial court's order entered judgment against appellant regarding that claim for relief, we reverse.

In considering preliminary objections in the nature of a demurrer, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 503-504, 267 A.2d 867, 868 (1970). A

[ 332 Pa. Super. Page 53]

    demurrer admits every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, but not conclusions of law. Sinn v. Burd, 486 Pa. 146, 149-150, 404 A.2d 672, 673-674 (1979); Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976); Chorba v. Davlisa Enterprises, Inc., 303 Pa. Super. 497, 500, 450 A.2d 36, 37 (1982). The law does not provide a "magic formula" to determine the sufficiency of a plaintiff's complaint, however, the law is clear that a demurrer can only be sustained in a case free from doubt. Hoffman v. Misercordia Hospital of Philadelphia, supra; Chorba v. Davlisa Enterprises, Inc., 303 Pa. Super. at 500, 450 A.2d at 38; Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 135, 396 A.2d 677, 681 (1978).

In the instant case, the trial judge sustained appellees' demurrer to the complaint upon his determination that, in Pennsylvania, a parent has no cause of action against a third party for the alienation of the affections of a minor child. We agree.

The question whether a parent may recover from a third party for the alienation of the affections of his or her child appears to be a matter of first impression in our Commonwealth. At one time, Pennsylvania recognized a commonlaw cause of action for alienation of the affections of a husband or wife, see Keath v. Shiffer, 37 Pa. Super. 573 (1908). However, all such causes of action were abolished by statute in 1935. 48 Pa.C.S.A. § 170; see Antonelli v. Xenakis, 363 Pa. 375, 69 A.2d 102 (1949). In general no cause of action for the alienation of the affections of a child was recognized at common law. See Miles v. Cuthbert, 122 N.Y.S. 703 (1909); Pyle v. Waechter, 202 Iowa 695, 210 N.W. 926 (1926); Schuppin v. Unification Church, 435 F.Supp. 603, 608 (D. Vermont) aff'd 573 F.2d 1295 (2 Cir. 1977). The RESTATEMENT (SECOND) OF TORTS § 699 (1977) provides:

One who, without more, alienates from its parents the affections of a child, whether a minor or of full age, is not liable to the child's parents.

[ 332 Pa. Super. Page 54]

In accordance with the position expressed in the Restatement, the majority of jurisdictions that have considered this question have refused to recognize a cause of action by a parent for alienation of a child's affections. See Hyman v. Moldovan, 166 Ga.App. 891, 305 S.E.2d 648 (1983); Scholz v. Scholz, 177 N.J.Super. 647, 427 A.2d 619 (1980); Edwards v. Edwards, 43 N.C.App. 296, 259 S.E.2d 11 (1979); Bock v. Lindquist, 278 N.W.2d 326 (Minn. 1979); McGrady v. Rosenbaum, 62 Misc.2d 182, 308 N.Y.S.2d 181 (1970), aff'd 37 A.D.2d 917, 324 N.Y.S.2d 876 (1971); Ronan v. Briggs, 351 Mass. 700, 220 N.E.2d 909 (1966); Pyle v. Waechter, 202 Iowa 695, 210 N.W. 926 (1926); see also, Orlando v. Alamo, 646 F.2d 1288 (8th Cir. 1981) (applying Arkansas law); Schuppin v. Unification Church, supra. Most courts have refrained from embracing an action for alienation of a child's affections, "in the absence of either seduction or removal from home." Prosser, THE LAW OF TORTS, § 124 at 883 (4th ed. 1971); The RESTATEMENT (SECOND) OF TORTS § 699, comment a (1977). Our research has disclosed only one modern case wherein a state court has recognized such a cause of action. See Strode v. Gleason, 9 Wash.App. 13, 510 P.2d 250 (1973) (intermediate appeals court held that a parent has a cause of action for compensatory damages against a third party who maliciously alienates the affections of a minor child, however, action was barred by statute of limitations).

Indeed, sound policy reasons militate against judicially creating a cause of action for the alienation of a child's affections. We find the Minnesota Supreme Court's reasoning in Bock v. Lindquist, 278 N.W.2d 326 (Minn. 1979) (en banc) persuasive. In that case, the court articulated the following reasons in support of its refusal to sanction this cause of action:

The circumstances under which the right has been asserted demonstrate the potential for grave abuses, in which a child becomes the object of intra-family controversy, and, indeed, a pawn in disputes over monetary matters. In the more usual case of marriage dissolution resulting in

[ 332 Pa. Super. Page 55]

    deteriorated relationships, a cause of action by one parent against another for alienation of a child's affections would exacerbate the unhappy relationships and become a strategic tool for advantageous use of one family member over another.

Id. at 327-328.

Accordingly, we hold that a cause of action by a parent for the alienation of a child's affections is not cognizable in Pennsylvania.*fn1

Appellant also argues that his complaint avers facts sufficient to set forth a cause of action for "harboring" a minor child. We are aware of no case in Pennsylvania that deals specifically with an action for harboring. Other jurisdictions, however, have recognized a cause of action for enticing or inducing a child to remain away from home. See e.g. Hinton v. Hinton, 436 F.2d 211 (D.C.Cir. 1970) aff'd 492 F.2d 669 (D.C.Cir. 1974); RESTATEMENT (SECOND) OF TORTS § 700 (1977). According to the Restatement, § 700, in order to establish that a third party has "harbored" a child, the facts must show an interference with the interests of the child's parents or other lawful custodian. Furthermore, the facts must demonstrate that the actor induced or enticed the child to remain away from home with knowledge that the parent or other lawful custodian did not consent.

Even if Pennsylvania were to recognize a cause of action under Restatement, § 700 for haboring a child, the facts averred in the instant complaint would be insufficient to satisfy the elements of such an action. The complaint herein does not aver that appellant had lawful custody of his son at the time of appellees' ...


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