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decided: June 15, 1987.


Appeal from 31, 1985 of Superior Court at 02857 Philadelphia 1984, affirming the Judgment of the Court of Common Pleas of Bucks County at 83-1144-09-5 entered March 15, 1984. Pa. Super. , 496 A.2d 858 (1985).


William Goldstein, Philadelphia, for appellants.

Brenden E. Brett, Doylestown, Nelson Romisher, Philadelphia, for appellee.

Nix, C.j.,*fn* and Larsen, Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ. Larsen, Hutchinson and Papadakos JJ., file concurring opinions.

Author: Nix

[ 515 Pa. Page 185]


In this appeal we have agreed to decide whether a compulsory non-suit was appropriately entered in a trespass action seeking recovery for intentional infliction of severe emotional distress by outrageous conduct as defined in section 46 of the Restatement (Second) of Torts. Previously this Court has acknowledged but has never had occasion to specifically adopt section 46 as the law in Pennsylvania.*fn1 Again, because the evidence adduced in this matter does not establish a right of recovery under the terms of the provision as set forth in the Restatement, we again leave to another day the question of the viability of section 46 in this Commonwealth.

The instant action arose when appellants Harvey and Marsha Kazatsky, husband and wife, filed a complaint in equity and trespass against appellee King David Memorial Park, Inc. ("King David"), a cemetery company organized under the laws of this Commonwealth, in the Court of Common Pleas of Bucks County. The Kazatskys had purchased two plots of land in King David's cemetery for the burial of an infant son and daughter, prematurely born twins who had died shortly after birth. After the interments King David had billed the Kazatskys for the perpetual care and sodding of the gravesites and, when no payment

[ 515 Pa. Page 186]

    was forthcoming, had refused to maintain them. The equity count of the Kazatskys' complaint sought to compel King David to care for and maintain the burial plots. That count was later withdrawn by stipulation of counsel when King David relented and began to maintain the gravesites. The Kazatsky's trespass count alleged fraudulent misrepresentation by King David as to the location of the gravesites and the type of monument permitted, a claim which also has been abandoned on appeal, and an intentional infliction of emotional distress by King David in failing to care for the gravesites and demanding payments in addition to the purchase price of the plots.

The case went to trial before a jury on May 7, 1984. After presenting their account of the events giving rise to their suit and offering photographic and documentary evidence, the Kazatskys rested their case, whereupon King David moved for a compulsory non-suit. The motion was granted and the court en banc refused to remove the non-suit. On direct appeal the Superior Court affirmed on the opinion of the trial court, 345 Pa. Super. 628, 496 A.2d 858. This Court granted the Kazatskys' petition for allowance of appeal.

Our standard of review in cases in this posture is well-established. On appeal from the refusal to remove a compulsory non-suit the plaintiff must be given the benefit of all favorable testimony and every reasonable inference arising therefrom, all conflicts in the evidence being resolved in the plaintiff's favor. Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980); DeFrank v. Sullivan Trail Coal Co., 425 Pa. 512, 229 A.2d 899 (1967); Finnin v. Neubert, 378 Pa. 40, 105 A.2d 77 (1954). The entry of a compulsory non-suit will be sustained only in a clear case where the only conclusion that can be drawn from the evidence is the absence of liability. McNally v. Liebowitz, 498 Pa. 163, 445 A.2d 716 (1982); McKenzie v. Cost Brothers, Inc., 487 Pa. 303, 409 A.2d 362 (1979). Viewed in accordance with these principles the evidence established the following facts:

[ 515 Pa. Page 187]

Marsha Kazatsky gave birth to twins, a boy and a girl, on June 27, 1981, in the sixth month of her pregnancy. The boy, Jeremy, died on June 29, 1981. Harvey Kazatsky contacted his rabbi concerning burial arrangements and was referred to King David. Apparently the rabbi had previous dealings with the cemetery which were satisfactory, thus occasioning the referral in this instance. Mr. Kazatsky telephoned King David and spoke with a Mr. Jack Livesy, who informed him that land was available in the infant section of the cemetery and that only flat grave-markers were permitted in that area. The total charge quoted for a burial plot was One Hundred Eighty Dollars ($180.00); One Hundred Dollars ($100.00) for the gravesite and Eighty Dollars ($80.00) for opening the grave. No further charges were discussed at that time. Mr. Kazatsky agreed to purchase a gravesite. Jeremy's funeral took place on June 30, 1981. At the time of interment, Livesy introduced himself to Mr. Kazatsky at the gravesite. When the funeral director arrived with the body, Livesy asked Mr. Kazatsky if he would like to make settlement on the bill. Mr. Kazatsky, who had expected to be asked to pay that day, complied with the request.

On July 7, 1981, the sister, Toby, died. Similar arrangements were made with King David and Livesy again requested and received payment at graveside. Marsha Kazatsky was not informed by her husband of the payment arrangement until after both funerals were over.*fn2

At some time after the funerals the Kazatskys inspected the area surrounding the twins' graves and noticed a number of adult graves with standing tombstones. Although the record reflects that there were childrens' graves in this area, there is no contention that any of those graves possessed standing headstones. The Kazatskys also expressed dissatisfaction with the location because they were in the

[ 515 Pa. Page 188]

    remotest and most inaccessible area of the cemetery. It was further contended that the area also became muddy when wet. Mr. Kazatsky purchased a gravemarker from Wertheimer Monuments, Inc. ("Wertheimer").

The Kazatskys received a bill from King David in late April of 1982 requesting One Hundred Forty-three Dollars ($143.00). The Kazatskys subsequently received a printed card explaining that One Hundred Dollars ($100.00) was the "special price" for perpetual care and Forty-three Dollars ($43.00) was the fee for sodding the burial plots. At this point the Kazatskys did not communicate with King David with reference to the propriety of this subsequent bill, although they testified that they were surprised to receive it.

In mid-May of 1982 Wertheimer informed the Kazatskys that the grave-marker had been completed and would be installed upon payment of the balance due.*fn3 The balance was paid in full to Wertheimer on May 24, 1982, and the Kazatskys subsequently received a card from Wertheimer informing them that the marker had been installed. When they visited the cemetery on June 1, 1982, there was no marker on their children's grave-sites. The Kazatskys went to the King David office, where they spoke with a Mrs. Livesy. When asked where the marker was, Mrs. Livesy checked the Kazatskys file and informed them that there was an unpaid balance on the bill for perpetual care and sodding. Mrs. Livesy also informed the Kazatskys that monument companies only delivered markers and King David personnel did the installing. The Kazatskys were upset and said they would bring money to the scheduled unveiling to pay the bill. Mrs. Livesy rejected that arrangement and demanded payment prior to installation. The Kazatskys left "furious and extremely upset" (RR 62a), and sought the advice of counsel.

[ 515 Pa. Page 189]

The Kazatskys later sought clarification from Wertheimer and asked why the marker had not been installed. They were referred to a Mrs. Reinick, one of the owners of King David, and explained their situation to her over the telephone. Mrs. Reinick agreed to look into the matter. After speaking with her, the Kazatskys contacted the Bucks County and Pennsylvania Consumer Protection Agencies.

Mrs. Reinick called the Kazatskys three days later and informed them the marker would be installed and they could hold their unveiling, but that there would be no care or maintenance of the grave-sites unless the bill was paid. Mr. Kazatsky related his reaction to this announcement as follows:

I wasn't terribly thrilled with it, but the most important thing, the only important thing at that point was having the unveiling on the 13th, so we accepted what was said and just left it alone.

RR 66a.

The unveiling took place during a "torrential downpour" with only the Kazatskys, their two surviving sons and their rabbi attending. The party left after a brief service but when they were half-way up the road out of the cemetery, a car drove up towards them. Mrs. Reinick emerged from that vehicle and expressed her condolences, and reminded the Kazatskys that there would be no care or maintenance unless the One Hundred Forty-three Dollars ($143.00) fee was paid. The Kazatskys found this "infuriating and extremely upsetting." RR 69a. As a result of this incident, the Kazatskys decided not to pay the disputed bill.

During the summer of 1982 the Kazatskys observed deteriorating conditions at the grave-sites, including crabgrass and weeds, during their visits. By December of 1982 the marker had begun to tip and sink for lack of a foundation and surrounding sod. The Kazatskys filed their lawsuit against King David in February of 1983.

Harvey Kazatsky conceded on cross-examination that throughout their dispute with King David the Kazatskys did not seek medical or psychiatric counseling. On redirect

[ 515 Pa. Page 190]

    he explained that they were very supportive of each other and did not feel ...

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