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JOHN L. RODGERS AND DELORES M. RODGERS v. NATIONWIDE MUTUAL INSURANCE COMPANY AND JOHN F. LEWIS (08/02/85)

filed: August 2, 1985.

JOHN L. RODGERS AND DELORES M. RODGERS, APPELLANTS,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY AND JOHN F. LEWIS



Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 2489 Dec. Term 1979.

COUNSEL

Jerome H. Ellis, Philadelphia, for appellants.

Bruce W. McCullough, Philadelphia, for appellee.

Wickersham, Beck and Cercone, JJ.

Author: Wickersham

[ 344 Pa. Super. Page 313]

In this appeal, appellants ask us to consider whether they can recover, in either a trespass or an assumpsit action, damages for emotional distress allegedly caused by the bad faith conduct of their insurer. We hold that, pursuant to D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981), appellants are not permitted to recover the requested relief in a trespass claim, and that further, appellants failed to establish a sufficient claim for damages for emotional distress in their assumpsit action. Thus, we affirm the order of the lower court.

John L. Rodgers was a Nationwide insured and was involved in an accident with a pedestrian, William Irons, Sr., on October 17, 1977. Mr. Irons and his wife commenced suit against Rodgers; Rodgers was served with the Irons' complaint on December 12, 1978. Rodgers sent said complaint to Nationwide on the following day. No action was taken on Rodgers' behalf, and on January 8, 1979, a default judgment was entered against him for failure to timely enter an appearance or to answer the complaint. On January 10 or 11, 1979, John F. Lewis, house counsel for

[ 344 Pa. Super. Page 314]

Nationwide, entered his appearance on Rodgers' behalf. Counsel then filed a petition to open judgment alleging that Rodgers' "failure to timely enter an appearance or respond to [the Irons'] complaint was due to mistake, inadvertance, and oversite of the United States Postal Service, his insurance company and/or his attorney and further was in no way caused by any action or inaction on his part." See Petition to Open Default Judgment at 2, reproduced in Supp.R.R. for Appellees at 379A. The petition to open judgment was subsequently denied.*fn1

The default judgment was recorded and a lien was entered against Rodgers' real estate. Appellants claim that the judgment and the resulting lien rendered them unable to obtain refinancing of their home, to consolidate their debts, and to pay their debts as they became due, and that they were therefore forced to file a petition in bankruptcy.

Appellants filed the instant complaint in December, 1979, alleging that the conduct of appellees Nationwide and John Lewis caused various injuries to both Mr. and Mrs. Rodgers. On behalf of Mr. Rodgers an assumpsit count was filed, averring that Nationwide's breach of its contractual obligations resulted in irreparable damage to his credit and caused him great personal humiliation, embarrassment, and emotional distress. Two trespass counts averred that appellees' negligence and/or recklessness similarly caused Mr. Rodgers to suffer the above-listed damages; one of the trespass counts also demanded that punitive damages be imposed upon appellee Nationwide. The complaint also contained identical assumpsit and trespass counts on behalf of Mrs. Rodgers.

Following discovery, appellees filed a motion for partial summary judgment, contending that, as a matter of law, appellants are not entitled to recover damages for emotional distress or punitive damages. Appellants then filed an answer to appellees' motion. After oral argument, the lower court granted the motion for partial summary judgment.

[ 344 Pa. Super. Page 315]

On July 12, 1984, the Honorable Lawrence Prattis issued an opinion and order dismissing appellants' trespass counts, and those portions of the assumpsit counts seeking damages for emotional distress.*fn2 Appellants filed this timely appeal.

Appellants state the issues presented for our consideration as follows:

I. Whether an insured may recover in assumpsit the damages for emotional distress caused by an insurer's reckless and willful breach of its contractual ...


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