RICHARD P. CONABOY, UNITED STATES DISTRICT JUDGE.
Plaintiff, Sam Malia, an employee of the Defendant, RCA Corporation, since 1966, instituted this five-count action against his employer. The Plaintiff alleges that, while he was an officer and member of the Union, the Defendant Corporation fraudulently induced him to enter into a contract to leave his Union position and take a job in management. He charges the agreement provided he could return with full seniority to the bargaining unit whenever he became dissatisfied with his new position.
In Count I he charges the Defendant with breach of contract; in Count II with fraudulent misrepresentation; in Count III with intentional interference with contractual relations; in Count IV with intentional infliction of emotional distress; and in Count V his wife joins as the Plaintiff seeking derivative consortium damages. The Defendant has filed a motion for summary judgment following extensive discovery and Plaintiffs have filed their opposition. Defendant's reply brief was filed on June 27, 1988 and thus the matter is ripe for determination. Trial is scheduled to commence on Tuesday, August 2, 1988.
We will grant the motion as to Counts III, IV and V of the Complaint, but will deny the motion as to Counts I and II and direct that trial will proceed on the allegations made in the Complaint on those Counts.
Relying principally on the authority of Poyser v. Newman & Co., 514 Pa. 32, 522 A.2d 548 (1987), the Defendant argues that the Pennsylvania Workmen's Compensation Act completely bars all tortious claims of an employee against his employer, intentional or otherwise.
Defendant responds to this argument alleging that Poyser does not fully address the issue of infliction of intentional injury by an employer upon an employee. The Defendant argues additionally that under the doctrine of "dual capacity" the Defendant could be liable to the Plaintiff beyond the Workmen's Compensation Act for breaches of statutory duties owed to the Plaintiff. Plaintiff, in support of this argument, cites Kline v. Arden H. Verner Co., 503 Pa. 251, 469 A.2d 158 (1983); Barber v. Pittsburgh Corning Corp., 365 Pa. Super. 247, 529 A. 2d 491, (1987); and Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982).
While we find that the issue of preemption is close, we do not base our decision on that issue since there are more compelling reasons to grant summary judgment as against several of the Counts of this complaint.
As to Count III, intentional interference with contractual relations, we will grant the motion for summary judgment since the Plaintiff offers no opposition.
As to Count IV, intentional infliction of emotional distress, we agree with Defendant that the Plaintiff's claim fails as a matter of law.
There is some argument here, between the parties, as to whether or not this tort has been recognized or abolished by the Pennsylvania Appellate Courts. Both parties cite Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987) where the Supreme Court does indeed discuss such a tort and discusses Section 46 of the Restatement of Torts which gives birth to this cause of action, but does not make any final determination on the issue of whether or not Section 46 has been fully adopted or rejected in Pennsylvania.
In Daughen v. Fox, 372 Pa. Super. 405, 539 A.2d 858 (1988) the Superior Court of Pennsylvania discussed Section 46, its elements, and its status in Pennsylvania. The general tenor of that opinion is that its status is unsettled in Pennsylvania in that it has never been fully adopted by the Supreme Court of Pennsylvania. The Court in that case, however, goes on to discuss the elements of the tort and reviews a Plaintiff's obligation in seeking to recover under such a count.
Section 46 of the Restatement 2d provides as follows:
Outrageous conduct causing severe emotional distress.
(1) 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.
The Superior Court then goes on to discuss a variety of cases in which the application of Section 46 was considered. The Court points out that, assuming Section 46 of the Restatement were to be considered the law, that the essential elements under that Section are extreme and outrageous conduct toward the Plaintiff. It holds that it is for the Court to determine in the first instance whether Defendant's conduct can reasonably be regarded as so extreme and outrageous as to permit recovery.
Comment (d) to Section 46 discusses extreme and outrageous conduct:
(d) Extreme and Outrageous Conduct. The cases thus far decided have found liability only where the Defendant's conduct has been extreme and outrageous. It has not been enough that the Defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice", or a degree of aggravation which would entitle the Plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "outrageous".