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MARIE REIMER v. PAUL S. TIEN (08/20/86)

filed: August 20, 1986.

MARIE REIMER, APPELLANT,
v.
PAUL S. TIEN, IND. AND IN THE CAPACITY AS PRESIDENT OF THE AMERICAN UNIVERSITY OF THE CARIBBEAN, AND AMERICAN UNIVERSITY OF THE CARIBBEAN, APPELLEES



Appeal from the Judgment Entered February 27, 1986 in the Court of Common Pleas of Montgomery County, Civil No. 81-20618.

COUNSEL

Catherine Miraglia-Lecky, Norristown, for appellant.

Olena S. Hendler, Jenkintown, for appellees.

Olszewski, Hoffman and Roberts, JJ.

Author: Olszewski

[ 356 Pa. Super. Page 195]

This appeal comes to us as the result of the judgment of the trial court granting a compulsory non-suit, on all counts, as to appellee Paul S. Tien ("Tien"), a directed verdict as to appellee American University of the Caribbean ("AUC") on three counts, and from the jury award of $3,500 against appellee AUC.

[ 356 Pa. Super. Page 196]

The pertinent facts are as follows. After reading an advertisement in a local paper, appellant contacted AUC for information regarding its medical program. At the appropriate time she applied for admission and was subsequently accepted. In conjunction with this, she paid all applicable fee requirements. In addition, she paid her tuition and room fee. Through this time, appellant continued contact with appellee AUC's Miami office, frequently to gain additional information.

In September, appellant traveled to Montserrat to begin medical school. She remained only eleven days. During this time, she found the conditions most dissatisfying. Many of her experiences became the basis of her complaint. She then left.

After arriving home, appellant made several attempts to contact the school to receive her refund. These attempts proved fruitless. As a result, a lawsuit was filed. At this time, AUC stipulated that appellant was due $2,200 in refunds. Appellees were granted a compulsory non-suit in favor of appellee Tien and a directed verdict on counts II, III, and IV at the close of appellant's case. The jury was allowed to deliberate only as to count I, breach of contract. A verdict was entered in appellant's favor for $3,500. Posttrial motions were filed and later denied. This appeal followed.

I

We now begin with appellant's contention that the trial court improperly granted a compulsory non-suit as to appellee Tien.

In West Mountain Poultry Co. v. Gress, 309 Pa. Super. 361, 455 A.2d 651 (1982), the standard for a compulsory non-suit was enunciated.

[ 356 Pa. Super. Page 197]

"A judgment of non-suit can be entered only in clear cases and plaintiff must be given the benefit of all evidence favorable to him together with all reasonable inferences of facts arising therefrom, and any conflict with the evidence must be resolved in his favor." Engel Page 197} v. Spino, 425 Pa. 254, 256, 228 A.2d 745, 746 (1961 [1967]). When a compulsory non-suit is entered, "lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement." McAuliffe v. Constantine, 228 Pa. Superior Ct. 52, 54, 323 A.2d 158, 159 (1974). "When an issue of credibility is raised on motion for compulsory non-suit, it is not within the province of the trial judge to determine the believability of the plaintiff's testimony." Scott v. Purcell, 490 Pa. 109, 113, 415 A.2d 56, 58 (1980). "Unless there are no conflicting inferences to be drawn it is far better to hear the defense so that the appellate court may have the benefit of findings of fact and conclusions of law." Shechter v. Shechter, 366 Pa. 30, 32-33, 76 A.2d 753, 755 (1950). Finally, a non-suit may only be entered where "the facts and circumstances lead unerringly to but one conclusion." Paul v. Hess Bros., 226 Pa. Superior Ct. 92, 94-95, 312 A.2d 65, 66 (1973).

After a conscientious review of the record, we are compelled to agree with the trial court's decision. Appellant clearly did not make out a cause of action against appellee Tien. The worst that can be said about Tien was that he was not available to speak with appellant when she so desired and was remiss in answering her letters. This lack of communication does not amount to breach of contract, fraudulent misrepresentation, intentional infliction of emotional distress or negligent infliction of emotional distress. Indeed, appellant admitted on cross-examination that Tien did not personally harass her, verbally abuse her, nor physically attack her. (R.R. 223a). In light of the evidence produced, compulsory non-suit was properly granted according to existing law.

II.

Appellant next argues that the trial court improperly granted a directed verdict on count II, fraudulent misrepresentation; count III, intentional infliction of emotional distress; and count IV, negligent infliction of emotional distress.

[ 356 Pa. Super. Page 198]

Although the law to be applied is identical in each count, we shall deal with each charge separately.

A judge may direct a verdict for a plaintiff only if there are no facts upon which a jury could properly find for the defendant. Highland Tank and Mfg. Co. v. Duerr, 423 Pa. 487, 225 A.2d 83 (1966). If there is a conflict of evidence, and the conflict provides a basis upon which a jury could possibly render a verdict for the party against whom the directed verdict is sought, the case must go to the jury. Cox v. Equitable Gas Co., 227 Pa. Super. 153, 324 A.2d 516 (1974). However, the conflict must be real. If there is no more than a scintilla of evidence on the side ruled against, and a jury could not base its verdict upon that evidence, a directed verdict may still be proper.

Krupa by Krupa v. Williams, 316 Pa. Super. 408, 463 A.2d 429 (1983).

Count II. Fraudulent Misrepresentation

The elements of a fraud and deceit action . . . may be said to consist of: 1) a false representation of an existing fact, Fidurski v. Hammill, 328 Pa. 1, 195 A. 3 (1937); 2) if the misrepresentation is innocently made, then it is actionable only if it relates to a matter material to the transaction involved; while, if the misrepresentation is knowingly made or involves a non-privileged failure to disclose, materiality is not a requisite to the action, DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644, affirming 11 D. & C.2d 447 (1958); 3) scienter, which may be either actual knowledge of the truth or falsity of the representation, reckless ignorance of the falsity of the matter, or mere false information where a duty to know is imposed on a person by reason of special circumstances, 16 P.L.E., Fraud Sec. 7; 4) reliance, which must be justifiable, so that common prudence or diligence could not have ascertained the truth; and, 5) damage to the person relying thereon.

Shane v. Hoffman, 227 Pa. Super. 176, 324 A.2d 532 (1974).

In suing for fraudulent misrepresentations, appellant alleged that appellees knowingly misrepresented to her that

[ 356 Pa. Super. Page 199]

    drugs were not a problem when the truth was that drugs and alcohol were openly pushed; that the school had high standards when the truth was that it allowed her to be harassed and security was lax; that student orientation would be September 14 when it was held September 16 instead; that she would be given a single room; and that class size was approximately thirty students yet while knowing that most classes contained two hundred students. We have studiously reviewed each of these allegations and find them meritless. The directed verdict, then, must stand.

Appellant presented no evidence to substantiate her drug and alcohol claim. Not only did she not prove that drugs and alcohol were rampant and openly used, but she did not prove scienter on appellee's part nor reliance and damage on her part. Next, a two-day delay in student orientation is not a false representation of a material fact and clearly is not a fact relied on when picking a school. In addition, we can ascertain no damage to appellant. Since appellant received the single room, albeit with some difficulty, represented as available, she cannot use it as the basis for misrepresentation. Last is the "misrepresentation" as to class size. Testimony revealed that this was a misunderstanding, lab classes contained approximately thirty students while lectures were closer to two hundred. (R.R. 381-382.). Since appellant received brochures of the school and she noted that the classrooms "showed a lot of chairs, like an instruction room," even if she had been told that class size was thirty students, she should have realized the discrepancy. It is not enough for fraudulent misrepresentation.

Count III. Intentional Infliction of Emotional Distress

According to the Restatement (Second) of Torts Sec. 46 (1965), liability for this tort is allowed against "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another . . . ." It is clear that the crucial element is extreme and outrageous

[ 356 Pa. Super. Page 200]

    conduct. Dawson v. Zayre Dept. Stores, 346 Pa. Super. 357, 499 A.2d 648 (1985); Jones v. Nissenbaum Rudolph & Seidner, 244 Pa. Super. 377, 368 A.2d 770 (1976). Further, it is for the court to determine, in the first instance, whether the actor's conduct can reasonably be regarded as so extreme and outrageous as to permit recovery. Dawson, supra; Restatement (Second) of Torts Sec. 46, comment (h) (1965).

Conduct which does not meet the requisites for liability is described in comment (d) of the Restatement (Second) of Torts Sec. 46:

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialties. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.

The conduct recited in appellant's complaint does not meet the burden of extreme and outrageous. Banging on her room door and being given pornography are surely annoying and possibly even insulting, but annoying and insulting are not extreme and outrageous. A large class may be inconvenient, but inconvenient is not extreme and outrageous. ...


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