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LOUISE CRIVELLARO v. PENNSYLVANIA POWER & LIGHT COMPANY DEBORAH BERN D/B/A EMPLOYEE CONSULTATION SERVICE AND A.D. GOSMAN D/B/A SPOFFORD HALL V. SALOMON BENSIMHON (04/04/85)

filed: April 4, 1985.

LOUISE CRIVELLARO, APPELLANT,
v.
PENNSYLVANIA POWER & LIGHT COMPANY DEBORAH BERN D/B/A EMPLOYEE CONSULTATION SERVICE AND A.D. GOSMAN D/B/A SPOFFORD HALL V. SALOMON BENSIMHON, M.D.



NO. 02327 Philadelphia, 1982, Appeal from the Order of June 29, 1982, in the Court of Common Pleas of Lehigh County, Civil, No. 81-C-3324.

COUNSEL

Paul F. McHale, Jr., Bethlehem, for appellant.

Lynn S. Palenscar, Philadelphia, for appellee.

McEwen, Olszewski and Hoffman, JJ.

Author: Mcewen

[ 341 Pa. Super. Page 175]

We here consider an appeal from an order which sustained the preliminary objections in the nature of a demurrer filed by appellee A.D. Gosman, d/b/a Spofford Hall (appellee), to two counts of appellant's seven count amended complaint.*fn1 Appellant raises two issues in this appeal: (1) whether appellant's amended complaint properly pleads a cause of action for negligent infliction of emotional distress and (2) whether appellant's amended complaint

[ 341 Pa. Super. Page 176]

    properly pleads a cause of action for "professional malpractice". We are constrained to reverse the order.

The facts of the instant case are quite ably summarized in the earlier ruling and opinion of the distinguished Judge James N. Diefenderfer upon the demurrer of appellee to the original complaint:*fn2

"Since March 24, 1975, [appellant] has been employed as a secretary by PP & L. [Appellant] alleges that on September 22, 1980, at approximately 11:00 A.M., she was called into Mr. C.D. Caliendo's office, one of the attorneys in the legal department at PP & L for whom she worked, and he informed her that an appointment had been scheduled for 11:30 A.M. the same day for her with defendant Bern, a social worker employed by the Employee Consultation Service (ECS). ECS is an employee assistance program sponsored by PP & L to provide free professional and confidential counseling to employees concerning problems affecting their job performance. ECS is alleged to be an agent, servant, and employee of PP & L. Further, defendant Bern is alleged to be an agent, servant and employee of PP & L.

When [appellant] met with defendant Bern, it is alleged that Ms. Bern told her that she was "on the verge of being fired" and repeatedly indicated that if [appellant] did not submit to counseling, her employment with PP & L would be terminated. ([appellant's] complaint, paragraphs 24, 25, hereinafter C.P.). Between September 22 and September 30, 1980, [appellant] met with defendant Bern on four separate occasions throughout which [appellant] claims defendant Bern said [appellant] was suffering from chronic drug dependency which would require treatment at a "psychiatric care facility known as Spofford Hall." (C.P. 29). It is further alleged that defendant Bern told [appellant] that her continued employment

[ 341 Pa. Super. Page 177]

    at PP & L was dependent upon her completion of a thirty day residential counseling program at Spofford Hall.

During her stay at Spofford Hall, [appellant] claims that she did not receive the treatment that was promised her by defendant Bern, in that she never received any type of professional psychiatric help, but rather was subject to an intensive and abusive alcohol and drug detoxification program. Also, [appellant] alleges she was told by the agents, servants, and employees of Spofford Hall that her failure to complete the program would result in termination of her employment with defendant PP & L, and that as a result, [appellant] remained there for thirty-three days. [Appellant] maintains that she is currently free from any sort of drug use or dependency and has never been subject to the influence of any addictive drugs.

Appellant first asserts that the trial court erred when it sustained appellee's demurrer to the allegation of negligent infliction of emotional distress. Our scope of review of such a claim is described in Banyas v. Lower Bucks Hospital, 293 Pa. Super. 122, 124, 437 A.2d 1236, 1237 (1981):

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a ...


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