$ 105,000.00. She deposited the check in her personal account the same day, and in the ensuing four days she spent approximately $ 47,000.00, principally on retiring existing debt and the purchase of two automobiles. (Id. at 34-37; Complaint at P 19.) On July 28, 1995, BTC refused to honor the check. (Complaint at P 11.) Hoffman's bank apparently received the returned check on July 29, 1995, and notified her the same day. (Hoffman Dep. at 32, 37.)
Thereafter, Hoffman made an inquiry to the Pennsylvania Securities Commission regarding the status of the bonds. She was informed that the bonds had been redeemed in February of 1986. (Id. at 66-69.)
In February of 1995, Plaintiff filed a two count complaint against BTC claiming breach of contract and either intentional, reckless, or negligent infliction of emotional distress.
A. Summary Judgment Standard
Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) when the moving party establishes that there is no genuine issue of material fact that can be resolved at trial and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Materiality is determined by the substantive law that governs the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In this inquiry, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. A dispute is genuine only if a reasonable jury could return a verdict for the nonmoving party. Id. Following a determination that no genuine dispute of material facts exists, the moving party must demonstrate that it is entitled to judgment as a matter of law. Once the moving party has made and supported its motion, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial. Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
B. Count I -- Breach Of Contract
Plaintiff contends that BTC's June 28, 1995 letter and/or the $ 105,000.00 check, along with Plaintiff's delivery of the bonds and supporting documentation to BTC, constitute a binding contract. She maintains that BTC breached this contract by failing to honor the $ 105,000.00 check. In addition, in her complaint Plaintiff claims that she justifiably and detrimentally relied on BTC's "promises" and its issuance of the $ 105,000.00 check. Finally, Plaintiff asserts in her complaint that BTC is estopped from defending against the contract claim on the ground of lack of consideration.
BTC argues, among other things, that no contract was formed due to a failure of consideration. Additionally, it argues that Plaintiff did not detrimentally rely on the issuance of the $ 105,000.00 check.
In Plaintiff's opposition brief she does not raise the estoppel argument regarding lack of consideration, and the complaint itself gives no hint of the basis for the claim. Likewise, Plaintiff entirely fails to brief her justifiable reliance claim or address in any way Defendant's argument that summary judgment should be granted with respect to it. Consequently, Plaintiff's estoppel and justifiable reliance claims are deemed abandoned. The only issue the court must resolve to dispose of BTC's motion for summary judgment with respect to Count I is whether its failure of consideration defense to Plaintiff's breach of contract claim succeeds.
It is settled that failure of consideration is a valid defense to breach of contract. Resolution Trust Corporation v. Forest Grove, Inc., 33 F.3d 284, 292 (3d Cir. 1994). " 'Failure of consideration occurs when the consideration bargained for does not pass, in whole or in part, to the promisor.' " Resolution Trust, 33 F.3d at 292 (quoting McGuire v. Schneider, Inc., 368 Pa. Super. 344, 534 A.2d 115, 118 (1987), aff'd without opinion, 519 Pa. 439, 548 A.2d 1223 (1988)(per curiam)). Indeed, the definition of consideration is, essentially, that which is bargained for. See Restatement (Second) of Contracts § 71(1) and (2)(1981)("To constitute consideration, a performance or return promise must be bargained for. . . . A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise . . . .").
Here, BTC has introduced overwhelming evidence that the bonds at issue were worthless when Plaintiff found them, portentously, at the Jersey City dump. (See Reply Brief, Exhibits 1-5.) Plaintiff has offered no contrary evidence. Accordingly, the court finds that the bonds were worthless when Plaintiff submitted them to BTC for redemption.
Plaintiff maintains that the fact of worthlessness is insufficient to establish lack of consideration. She claims that "the tender of bond certificates constituted consideration for the payment without regard to whether or not those certificates would have some independent value to the defendant." (Opposition Brief at 17.) This argument is at odds with the law set forth above, and Plaintiff points to no authority in support of her rather unorthodox view of consideration.
The germane inquiry under controlling standards is what BTC sought in exchange for its alleged promise to pay Plaintiff $ 105,000.00. If it sought the bonds merely as objects regardless of their pecuniary worth, Plaintiff is correct that there is no failure of consideration. Conversely, if BTC sought twenty-one valid bonds, redeemable with the Hawaiian government at their face value of $ 5000 each, then the delivery of worthless bonds in their stead would constitute a substantial failure of the bargained for consideration. The former proposition is preposterous on its face, and Plaintiff offers no theory of BTC's motives or other explanation which would permit a reasonable jury to believe it. The court must therefore conclude that Defendant's failure of consideration defense to Plaintiff's breach of contract claim succeeds. Accordingly, Defendant's motion for summary judgment will be granted with respect to Count I.
C. Count II -- Emotional Distress
Plaintiff asserts claims for intentional, reckless, and negligent infliction of emotional distress. She maintains that she "suffered great humiliation, embarrassment, mortification, distress, and inconvenience . . ." as a result of BTC's conduct, apparently due to her inability to meet the obligations which she incurred between July 25 and 29, 1995. Neither party discussed the emotional distress claims in their briefs. However, because the claims must fail as a matter of law, the court will dismiss them sua sponte.
Pennsylvania courts have expressly declined to recognize the tort of negligent infliction of emotional distress. Jackson v. Sun Oil Company of Pennsylvania, 361 Pa. Super. 54, 521 A.2d 469, 471 (Pa.Super. 1987)(citing Pierce v. Penman, 357 Pa. Super. 225, 515 A.2d 948, 951 (Pa. Super. 1986)). Nothing more need be said before dismissing this claim.
The torts of intentional and reckless infliction of emotional distress are recognized under Pennsylvania law. Jackson, 521 A.2d at 471; Pierce, 515 A.2d at 951. However, liability will only be found for these torts where the alleged tortfeasor's offending conduct is "extreme and outrageous." Id. The standard for finding extreme and outrageous conduct in Pennsylvania is quite difficult to meet:
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 possible 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!'
Pierce, 515 A.2d at 951 n.3 (citation omitted).
In the present case, Plaintiff has presented no evidence suggesting that BTC intentionally sent her a check for $ 105,000.00 in exchange for the junk yard bonds. Indeed, the record indicates that the error as to whether the bonds were outstanding was made by the Department of Budget and Finance of the State of Hawaii, who provided false information to BTC upon BTC's inquiry. (See Reply Brief, Exhibit 4.) At most, BTC can be charged with a careless failure to head-off its issuance of the check once the State of Hawaii notified it of the mistake on July 8, 1995, two weeks before the check was dated. (Id.) While the court does not wish to make light of Plaintiff's emotional distress, as a matter of law, BTC's carelessness does not rises to the level of "extreme and outrageous" as interpreted by Pennsylvania courts. Accordingly, Plaintiff's intentional and reckless infliction of emotional distress claims must be dismissed.
D. Plaintiff's Motion To File Sur-Reply
In its motion for summary judgment and supporting brief, BTC treated the worthlessness of the bonds as a foregone conclusion in view of Plaintiff's testimony that she independently confirmed the fact through the Pennsylvania Securities Commission. In her opposition brief, Plaintiff contends that BTC failed to establish that the bonds were worthless. BTC, in reply, submitted overwhelming evidence establishing that the bonds were redeemed in 1986, well before Plaintiff found them. Plaintiff seeks leave of the court to file a sur-reply brief. She does not propose to introduce evidence that the bonds were valid when delivered to BTC. Rather, she seeks to argue that BTC's decision to send her a check for $ 105,000.00 in exchange for the worthless remains of previously redeemed bonds was not a mistake. Given the present record, the court does not believe that any such argument will affect its analysis. Consequently, the motion to file a sur-reply brief will be denied. If Plaintiff believes after reading this memorandum that additional argument can repair what appears to be an irredeemable case, she may place it before the court with a motion for reconsideration, provided that it meets the standards for such a motion. The court is skeptical, to say the least.
An appropriate order will be issued.
SYLVIA H. RAMBO, Chief Judge
Middle District of Pennsylvania
Dated: November 20, 1995.
In light of this court's order issued November 15, 1995, and the supporting memorandum issued November 20, 1995, IT IS HEREBY ORDERED THAT:
1) The Clerk of Court shall enter judgment in favor of Defendant and against Plaintiff, and shall close the file.
2) The period of time for filing a motion for reconsideration or an appeal shall run from the date of this order.
SYLVIA H. RAMBO, Chief Judge
Middle District of Pennsylvania
Dated: November 20, 1995.