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BOWERSOX v. P. H. GLATFELTER CO.

January 13, 1988

Joanne M. Bowersox and Allen H. Bowersox, Plaintiffs
v.
P. H. Glatfelter Company and Donald Young, Defendants



The opinion of the court was delivered by: RAMBO

 Sylvia H. Rambo, UNITED STATES DISTRICT JUDGE

 Before the court is the motion of defendants to dismiss Counts Three and Four of plaintiffs' complaint. The motion has been fully briefed and is ripe for disposition.

 Background

 On July 7, 1987 plaintiffs initiated the captioned action. The complaint alleges that plaintiff Joanne Bowersox was formerly an employee of defendant P. H. Glatfelter Company ("Glatfelter") and that her immediate supervisor was defendant Young. According to plaintiffs, Young subjected Joanne Bowersox to sexual harassment for several years while they worked together. The alleged harassment included statements by Young concerning his sexual virility, statements concerning his outings at strip joints, and statements about the sexual performance of other female employees. Young also allegedly inquired about Joanne Bowersox's ability to have sexual relations after surgery, inquired about her sexual performance, and invited her to watch him swim in the nude and to ski with him. The invitations, according to plaintiffs, were intended by Young to result in liaisons with Joanne Bowersox. Young also allegedly displayed a sexually explicit poster and an explicit newspaper clipping, put his hands in his pants and discussed his sexual virility before Joanne Bowersox, and told her that her job was not a woman's job.

 Plaintiffs further allege that because Joanne Bowersox rejected Young's "sexual conduct" and because of her sex, Young assigned burdensome tasks, withheld information from her which was necessary in her job, created an oppressive work environment, and followed her throughout defendant's plant. Young also allegedly threatened Ms. Bowersox with suspension if she complained about Young's conduct, advised her that he would give her a good performance evaluation only if he liked her, and eventually rated her performance as less than satisfactory with no basis for doing so. Young's conduct toward Joanne Bowersox created such a difficult working environment, according to plaintiffs, that Ms. Bowersox ultimately felt compelled to resign. In addition to suffering monetary damages after resigning, Joanne Bowersox allegedly experienced severe emotional distress, embarrassment, headaches, nausea, skin rashes, and depression as a result of Young's conduct and Glatfelter's failure to investigate that conduct.

 On the basis of these allegations plaintiffs assert four causes of action. In the first count of the complaint plaintiffs allege that Young's harassment of and sexually discriminatory conduct toward Joanne Bowersox violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Glatfelter is alleged to have condoned Young's actions. The second count of the complaint contains allegations that the failure of Glatfelter to investigate or prevent Young's conduct resulted in the constructive discharge of Joanne Bowersox, again in violation of the Civil Rights Act. In the third count plaintiffs assert, pursuant to state law, a cause of action for intentional infliction of emotional distress. Finally, Count Four states that defendants are liable to plaintiff Allen Bowersox under state law for the loss of his wife's consortium, which resulted from the intentional infliction of emotional distress alleged in Count Three.

 Defendants have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the third and fourth counts of the complaint. They argue that the conduct which plaintiffs have alleged is not the type of conduct that constitutes intentional infliction of emotional distress according to Pennsylvania law. Defendants further argue that because Allen Bowersox's loss of consortium claim is derivative of Joanne Bowersox's right to recover, the failure to state a claim for intentional infliction of emotional distress in Count Three compels the dismissal of the loss of consortium claim in Count Four. Alternatively, defendants argue that this court should not exercise pendent or ancillary jurisdiction over the state law causes of action contained in Counts Three and Four. Defendants' motion does not address Counts One and Two of the complaint. The court will address each of the defendants' arguments.

 Discussion

 In addressing a motion brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court bears in mind the rule that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The court must accept the factual allegations of the complaint as true and draw reasonable factual inferences to aid the pleader. D.P. Enterprises v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984).

 A. Intentional Infliction of Emotional Distress

 The tort of intentional infliction of emotional distress has been defined as follows: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Restatement (Second) of Torts § 46(1) (1965). Because this tort is not a matter governed by the Constitution or by federal law, the court must apply the law of Pennsylvania. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 82 L. Ed. 1188, 58 S. Ct. 817 (1938).

 As recently as 1986 the Pennsylvania Superior Court declared that Pennsylvania had adopted the Restatement position on intentional infliction of emotional distress. Stoddard v. Davidson, 355 Pa.Super. 262, 268 n.1, 513 A.2d 419, 422 n.1 (1986). Relying in part on Stoddard, the Third Circuit Court of Appeals recently stood by its prediction made several years earlier that Pennsylvania would adopt section 46 of the Restatement (Second) of Torts. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 85 (3d Cir. 1987), citing Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir. 1979). Several months after the Third Circuit Court issued its decision in Wisniewski and approximately one year after Stoddard, however, the Pennsylvania Supreme Court specifically declined to adopt the Restatement position on intentional infliction of emotional distress. Kazatsky v. King, 515 Pa. 183, 186, 527 A.2d 988, 989 (1987).

 Although the court in Kazatsky declined to adopt the Restatement position, it did so not so much out of disagreement with the subject matter of section 46 but because the evidence in Kazatsky did not "establish a right of recovery under the terms of the provision as set forth in the Restatement. . . ." Id. at , 527 A.2d at 989. Thus, the Pennsylvania Supreme Court somewhat confusingly used the elements of intentional infliction of emotional distress as set forth in section 46 to decide that the plaintiffs in that case had not stated such a cause of action but left "to another day the question of the viability of section 46 in this Commonwealth." Id.1 At the same time the court expressed concern about the imprecision of the terms used in the Restatement, id. at , 527 A.2d at 994, the court also gave some indication that it might in the future adopt section 46 of the Restatement. *fn2" In light of that indication and noting the reliance ...


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