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filed: August 17, 1984.


No. 199 Harrisburg, 1982, Appeal from the Order of May 10, 1982 in the Court of Common Pleas of York County, Civil Division, No. 80-S-3753


Steven M. Carr, York, for appellant.

Daniel W. Shoemaker, York, for appellee.

Wickersham, Wieand and Cercone, JJ. Wieand, J., filed a dissenting opinion.

Author: Cercone

[ 333 Pa. Super. Page 11]

At the time of trial in this case, appellee Jeanne E. Little was forty-three years old and an employee of the phone company in York County. Her employer withheld her wage tax every year and there is no dispute that Little was in no way delinquent in the payment of her local wage tax. Contrary to her previous practice of engaging H & R Block to prepare her tax returns, Little accepted the offer of her friend to do her taxes with her for the 1978 tax year. Little had moved in the middle of 1978 from Spring Grove to Red Lion School District. She had not received a form in the mail for the filing of her local taxes, so, finding the telephone number of appellant York County Earned Income Tax Bureau in the phone book under tax information, she called the Bureau. (The Bureau was described at trial as a non-governmental, profit-making tax collection service for certain municipalities and school districts.) An employee of the bureau spoke with her on the phone and told her that she would send Little the necessary form. She informed Little that she should fill out one form and that her move from one district to the other should be entered on the back

[ 333 Pa. Super. Page 12]

    of the form. Little was erroneously told to return the completed form to the Bureau. What she actually should have done was to send a return also to Spring Grove School District. Little sent the return to the Bureau, but, unknown to Little, Spring Grove district was not serviced by the Bureau and that district never received a copy of her return. So, to Spring Grove, Little appeared to be in default of the local tax laws which required her to file a tax return, even though the proper amount of tax monies had been withheld by her employer.

Then, in early April of 1980, Little was at home with her son and some friends when she was arrested for failure to pay her taxes. She was made to go to Magistrate Sam Hill's office. When she was asked how she pleaded, she said she entered no plea, although she had explained to the constable at her home that all her taxes had been withheld and returns filed. The Magistrate set her bond at $500.00 cash bail and required that it be paid that night in cash. As neither Little or her friends had that much cash on them, Little was committed to the County Jail. Her brother retained a lawyer for her and the lawyer visited her at the jail the next evening. That was the day before Good Friday, which was a court holiday, and the lawyer informed Little that he could not get her released until Monday. Little was released on Monday evening, after having spent five days in jail. She described her experience as outrageous, uncalled for, and something that was "more likely to happen in Russia." She testified to being denied her allergy medication, to being made to share space with women who had been charged with felonies, to inadequate food, clothing and sleeping quarters, to mistreatment by jail matrons, and to other indignities. The charges were eventually dismissed against her.

Little brought suit against the York County Earned Income Tax Bureau in both contract and tort. The court sustained the demurrer as to the contract cause of action, but submitted the case to the jury on a theory of negligent representation on the part of the Bureau. It instructed the

[ 333 Pa. Super. Page 13]

    jury that they were to decide whether the Bureau caused the incarceration of Little, or whether Little herself acted unreasonably in the course of events.*fn1 Under the Restatement of Torts, 2d, § 905, the court instructed the jury that they could award Little damages for humiliation. The jury returned a verdict in favor of Little in the amount of $20,361.05. Twenty thousand ($20,000.00) represented damages for her humiliation, and $361.05 included attorney's fees and court costs. After denial of motions for judgment N.O.V. and/or a new trial, judgment was entered.

On appeal, the Bureau argues that the lower court erred in refusing its post-verdict motions because Little failed to prove that her experience in the York County Jail was proximately caused by the Bureau; that Little was not entitled to damages for her mental distress; and that the verdict was excessive. We affirm.

Appellant compares the chain of causation in this case to a Rube Goldberg contraption. It cites the Restatement of Torts, 2d, § 435(2) that essentially states that when it appears to the court highly extraordinary that the harm should have been caused by the actor's conduct, that, it is then not the legal cause of the harm. Appellant asserts that the trial judge ignored the

"separate, independent and unforeseeable events that plaintiff would fail to receive the first class mail notice from Spring Grove that she had not filed the requisite return, that she would not pick up the certified letter at the Post Office containing the same important notice, and that no one in her family had time to pick it up either. These events can hardly be said to have been set in motion as natural or probable consequences of appellant's negligence, nor can the highly extraordinary event that

[ 333 Pa. Super. Page 14]

    she was not able to post bail on the evening of April 2, 1980, when she was arrested. It is totally unforeseeable that a woman of mature age, good reputation, steady employment, and solid property, arrested on such a trivial charge, would not be released on her own recognizance or unable to post in short order such a modest bail, or unable to at least obtain a bail bond."

Appellant also argues that the advice of Little's attorney that he could not get her out of prison until after the weekend must be regarded as a superseding cause of her injury, relieving the Bureau of any liability.

We are guided in our review by certain well-established principles of tort law. Initially, a distinction is traditionally drawn between foreseeability as appellant has argued it and proximate cause. Foreseeability is not an element to be considered in determining whether negligent conduct was the proximate cause of an accident, but it is an element of determining whether an actor's conduct was negligent. Fredericks v. Castora, 241 Pa. Superior Ct. 211, 360 A.2d 696 (1976). In Lerro v. Thomas Wynne, Inc., 451 Pa. 37, 301 A.2d 705 (1973), an oil company was found to be liable to plaintiffs who bordered a stream into which oil had seeped because of the Company's failure to inspect its underground oil tanks. Our Supreme Court found that reasonable care would have included such inspections, and, thus, the remote harm to plaintiffs was caused by the negligent conduct of the defendant. It found that the harmful consequences could reasonably have been foreseen and thus prevented by reasonable care.

Appellant relies on Restatement of Torts, 2d, 435(2), Foreseeability of Harm or Manner of Its Occurrence; § 2 states that an actor's conduct may be held not to be a legal cause of harm . . . [when] it appears to the court highly extraordinary that it should have brought about the harm. However, § 1 of that same Section 435 states that "if the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner

[ 333 Pa. Super. Page 15]

    in which it occurred does not prevent him from being liable."

"[T]he court, knowing that such a force has intervened may see nothing extraordinary either in its intervention or in the effect which it has upon the future development of the injurious results of the defendant's conduct. This is particularly important where the intervening force is supplied by the act of a human being or animal, which is itself a reaction to the stimulus of a situation for which the actor is responsible."

In the instant case, the Bureau's former director testified that its volume of "taxables" and employers precluded any notice to Little that she filed with Spring Grove for the months that she lived there. He admitted that the name, "York County Earned Income Tax Bureau" did cause some confusion, in that taxpayers erroneously considered it was an arm of the local government. Thus, a filing with the Bureau could reasonably be assumed by a taxpayer to satisfy his duty to file his tax returns, regardless of what district he resided in. It was also established at trial that it was general knowledge that failure to file a tax return could result in fines and imprisonment. Reasonable care in this case would have made appellant cognizant of the public trust it engendered by its very name; that those employees dealing with the public be extremely accurate in the advice given to taxpayers; and that some effort be made by appellant to see that a copy of a return erroneously filed with them be forwarded to the non-serviced school district. Thus, for want of appellant's reasonable care in this case, a series of unfortunate events was set in motion that reasonably could have been foreseen.

However, whether the negligent conduct proximately caused Little's harm must be considered.

Proximate cause is a term of art denoting the point at which legal responsibility attaches for the harm to another arising out of some act of defendant, Flickinger Estate v. Ritsky, [452 Pa. 69, 305 A.2d 40 (1973)] W. Prosser, Law of Torts, § 41 (4th ed. 1971); and it may be

[ 333 Pa. Super. Page 16]

    established by evidence that the defendant's negligent act or failure to act was a substantial factor in bringing about the plaintiff's harm. Flickinger Estate v. Ritsky, supra; Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970) (plurality opinion); Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965); Diakolios v. Sears Roebuck & Co., 387 Pa. 184, 127 A.2d 603 (1956); Simon v. Hudson Coal Co., 350 Pa. 82, 38 A.2d 259 (1944); Frangis v. Duquesne Light Co., 232 Pa. Super. 420, 335 A.2d 796 (1975). The defendant's negligent conduct may not, however, be found to be a substantial cause where the plaintiff's injury would have been sustained even in the absence of the actor's negligence. Majors v. Brodhead Hotel, supra; DeAngelis v. Burns, 404 Pa. 230, 171 A.2d 762 (1961); Frangis v. Duquesne Light Co., supra; Restatement, § 432.

It is the plaintiff's burden to prove that the harm suffered was due to the conduct of the defendant. As in many other areas of the law, that burden must be sustained by a preponderance of the evidence. Cwiakala v. Paal, 427 Pa. 322, 235 A.2d 145 (1967); Zeman v. Canonsburg Boro, 423 Pa. 450, 223 A.2d 728 (1966); Amon v. Shemaka, 419 Pa. 314, 214 A.2d 238 (1965). Whether in a particular case that standard has been met with respect to the element of causation is normally a question of fact for the jury; the question is to be removed from the jury's consideration only where it is clear that reasonable minds could not differ on the issue. Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 180 A.2d 414 (1962); Restatement § 434; W. Prosser, Law of Torts, § 45 (4th ed. 1971); F. Harper and F. James, The Law of Torts, Vol. 2 § 20.2 (1956). In establishing a prima facie case, the plaintiff need not exclude every possible explanation of the accident; it is enough that reasonable minds are able to ...

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