No. 2543 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 2399 April Term, 1981.
Allen L. Feingold, Philadelphia, for appellant.
Jay S. Ruder, Philadelphia, for appellee.
Cavanaugh, Wieand and Cirillo, JJ.
[ 333 Pa. Super. Page 614]
This is an appeal from an order sustaining preliminary objections in the nature of a demurrer to a counterclaim. The counterclaim was filed by a tenant in response to her landlord's action for accelerated rent which became due when the tenant vacated the apartment prematurely.
Gloria Passen was tenant and Rittenhouse Regency Affiliates, a limited partnership, was lessor under the terms of a written apartment lease having a term of two years. The tenant discontinued the payment of rent when she vacated the apartment at the end of the first year. The lessor thereupon commenced an action in assumpsit to recover the balance of rent due under the terms of the lease. The
[ 333 Pa. Super. Page 615]
tenant responded by filing a counterclaim. After preliminary objections thereto had been sustained, the tenant filed an amended counterclaim. She alleged therein that the lessor had failed to return a rental deposit. She also alleged that the lessor had intentionally inflicted emotional distress by refusing to abide by an oral agreement to accept an alternate tenant if one were found by appellant-lessee. For breach of this oral agreement, Passen demanded compensatory and punitive damages.
The trial court properly observed that a tenant cannot maintain a cause of action for punitive damages or for compensatory damages because of emotional distress allegedly caused by a lessor's failure to abide by the terms of an oral agreement. As a general rule, punitive damages are not recoverable in an action for breach of contract. Reliance Universal, Inc. of Ohio v. Ernest Renda Contracting Co., 308 Pa. Super. 98, 107, 454 A.2d 39, 44 (1982); Daniel Adams Associates, Inc. v. Rimbach Publishing Inc., 287 Pa. Super. 74, 77, 429 A.2d 726, 728 (1981); DeLuca v. Fidelity Bank, 282 Pa. Super. 365, 368, 422 A.2d 1159, 1161 (1980). Similarly, damages for emotional distress are not ordinarily allowed in actions for breach of contract. There are only two exceptions. The first is where the emotional distress accompanies bodily injury. This usually takes the form of an action in tort. The second exception occurs where the breach is of such a type that serious emotional disturbance is a particularly likely result. Restatement (Second) of Contracts § 353 (1981).*fn1 See: Carpel v. Saget Studios, Inc., 326 F.Supp. 1331, 1334 (E.D.Pa. 1971); Emerman v. Baldwin, 186 Pa. Super. 561, 572, 142 A.2d 440, 447 (1958). See also: Gefter v. Rosenthal, 384 Pa. 123, 119 A.2d 250 (1956). The counterclaim in the instant case does not contain even a whisper of bodily harm. The oral agreement alleged, moreover, was not one whose
[ 333 Pa. Super. Page 616]
breach is recognized as being particularly likely to ...