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KENNETH AND DOROTHY WINTERHALTER v. WEST PENN POWER COMPANY (06/26/86)

filed: June 26, 1986.

KENNETH AND DOROTHY WINTERHALTER, INDIVIDUALLY, AND AS PARENTS AND NATURAL GUARDIANS OF SHERRI T. WINTERHALTER, A MINOR
v.
WEST PENN POWER COMPANY, AND ASPLUNDH TREE EXPERT COMPANY, INC. APPEAL OF SHERRI T. WINTERHALTER



Appeal from the Order Entered on July 15, 1985, in the Court of Common Pleas of Washington County, Civil division, at No. 129 July Term, 1983 A.D.

COUNSEL

Thomas G. Michalek, Pittsburgh, for appellant.

Kathleen Smith-Delach, Washington, for appellees.

Brosky, Montgomery and Hester, JJ.

Author: Hester

[ 355 Pa. Super. Page 19]

In this appeal, appellants argue that the lower court improperly granted a motion to amend in order to plead a new defense, and a motion for summary judgment filed by appellee Asplundh Tree Expert Company, Inc. (hereinafter "Asplundh"). Appellants contend that the pleadings were closed and, alternatively, that the defense of scope of employment asserted in the motion to amend had been waived.*fn1 The entry of summary judgment, which was

[ 355 Pa. Super. Page 20]

    based on that defense, must therefore be reversed, according to appellants. Having reviewed the arguments we affirm in part and reverse in part.

This case arose from an incident which occurred on June 17, 1982. West Penn Power allegedly directed appellee to cut down and remove trees along the property line of appellants Kenneth and Dorothy Winterhalter. The trees in question had provided a visual barrier between the public roadway and appellants' residence.

Prior to cutting down the trees, appellee sought permission from the homeowner to perform the work. On that day, the only family members at home were appellants' two minor daughters. Sherri T. Winterhalter, who was sixteen, allegedly granted limited permission to trim the trees, but refused to permit appellee to cut down the trees. When appellants' minor daughter observed appellee's employees actually cutting down the trees, she demanded that they stop immediately. At that time, the employees of Asplundh began to harass and verbally abuse her. They made loud and obscene comments about her and otherwise humiliated and embarrassed her.

Appellants on their own behalf and on behalf of their minor daughter instituted legal proceedings demanding compensation for the damages to their property and for the intentional infliction of emotional distress to their daughter. The original complaint was filed against West Penn Power on July 13, 1983; no preliminary objections were filed. Appellants subsequently filed an amended complaint to join Asphundh on April 17, 1984. Preliminary objections were filed on behalf of Asphundh on May 31, 1984, alleging that appellants' count for intentional infliction of emotional distress failed to state a cause of action upon which relief could be granted. These preliminary objections were granted

[ 355 Pa. Super. Page 21]

    and appellants were allowed forty-five days to amend their complaint, which they did. Following its filing of an answer and new matter, appellee filed a motion for partial summary judgment on February 5, 1985, alleging insufficient facts to ...


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