president. (Paras. 22, 45(b), (c)). Only members of Vogel's new Board were authorized to draw funds from the account at Continental on behalf of the corporation. After November 1, 1985, Continental honored Vogel's but not Odesser's checks on the PVE corporate account. (Para. 45(c)). The bank asserted to third parties that the November 1, 1985, Board of Directors' resolution was valid despite its knowledge to the contrary. (Paras. 45(d), 28).
Subsequent to aiding Vogel in establishing the new status quo at PVE, Continental assisted Vogel in keeping PVE funds out of Odesser's reach. (Paras. 30, 45(f), (g)). Finally, Continental confessed judgment against Odesser on PVE indebtedness incurred after the bank itself had ceased to recognize any role of Odesser in the company. (Paras. 34 - 35, 45(h)). These allegations are sufficiently particular to support Odesser's claim that Continental participated in Vogel's fraudulent acts.
Defendants have moved to dismiss plaintiff's state claims for lack of pendent jurisdiction. In view of surviving federal claims against the moving defendants, however, this court retains jurisdiction over the state claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
Jaffe raises additional grounds upon which he contends that Odesser's state claims against him should be dismissed. He asserts that Odesser's Count V, under Pennsylvania's state-law analogue to the federal RICO statute, 18 Pa.C.S. § 911 et seq., must be dismissed for want of a private cause of action. As plaintiff recognizes in his memorandum of law, there is no private cause of action granted by 18 Pa.C.S. §§ 911 et seq. Malley-Duff & Assocs. v. Crown Life Ins. Co., 792 F.2d 341, 347 n. 13 (3d Cir. 1986), aff'd, 483 U.S. 143, 107 S. Ct. 2759, 97 L. Ed. 2d 121 (1987), citing D'Iorio v. Adonizio, 554 F. Supp. 222, 232 (M.D.Pa. 1982). Plaintiff's Count V is accordingly dismissed.
Jaffe opposes Count VII, which alleges civil conspiracy, on essentially the same ground upon which he opposes plaintiff's RICO conspiracy allegations. Plaintiff's allegations against Jaffe of conspiracy are adequate under state common law as well as under the federal statute.
Odesser's Count VIII alleges intentional infliction of emotional distress. In Pennsylvania, a plaintiff can only recover for emotional distress in circumstances in which "nervous shock or mental or emotional distress . . . [is] accompanied by a physical injury or impact upon the complaining party." Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988, 992 (1987). The only exceptions that Pennsylvania courts have adopted to this "impact rule" are for cases in which a plaintiff is in danger of and actually fears physical impact, Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84, 86 (1970), or a plaintiff suffers emotional distress from witnessing serious injury to a close relative. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Odesser has alleged neither past nor prospective physical harm to himself, nor has he alleged that any close relative was physically injured in his presence. It is possible that the Pennsylvania courts will develop further exceptions to its "impact rule." It is this court's obligation in the absence of any case on point to predict what a Pennsylvania court would do if confronted by Odesser's allegations in support of a claim of intentional infliction of emotional distress. Given the gradual course of development of the tort of intentional infliction of emotional distress in Pennsylvania, I see no ground for inferring that recovery for emotional distress incident to the fraudulent seizure of control of a business interest will be recognized by the courts of the state, and I therefore find plaintiff's cursory allegations of emotional distress insufficient to state a claim.
Finally, Jaffe asserts that Odesser has failed to make allegations required to establish that Odesser has standing to sue for the legal malpractice alleged in Count IX. In this regard, a legal malpractice plaintiff must allege "the employment of the attorney or some other basis for duty." Bowman v. Abramson, 545 F. Supp. 227, 228 (1982). In support of his standing to sue for malpractice arising from the negotiation of the Vogel loan, Odesser alleges that
the escrow agreement evidencing this loan was drafted by Gary Jaffe, Esquire . . . who at that time was an attorney for PVE, Vogel and Odesser. . . .
(Para. 16). Odesser alleges in paragraph 78 that he and his wife, Anita, were Jaffe's client with respect to the second incident of malpractice alleged in Count IX -- that arising from Jaffe's negotiation of the East Texas lien in such a way as to obstruct the closing on the sale of Odesser's house. It thus appears that, assuming the truth of the facts alleged in the complaint, Gary Odesser has standing to sue Jaffe for both of the instances of malpractice that he has alleged, and Anita Odesser had standing to sue for alleged malpractice pertaining to the sale of the Odessers' residence.
An appropriate Order follows.
For the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) Defendant Continental Bank's motion to dismiss Count IV of plaintiff's complaint (RICO conspiracy) and Count IV of Frankford Trust Company's cross-claim (same) is GRANTED.
(2) Defendant Gary Jaffe's motion to dismiss Count V (18 Pa. C.S. § 911(d)) and Count VIII (intentional infliction of emotional distress) is GRANTED.
(3) In all other respects, the motions of defendants Jaffe and Continental to dismiss plaintiff's complaint, and of Continental to dismiss Frankford's cross-claim are DENIED
(4) Continental's motion to stay discovery is DENIED.