*1 is more argument properly A.2d The the jury as conclusions which advocating characterized present- from the evidence themselves properly could draw statements jury repeated made to the It was clear ed. counsel that and defense prosecution both the by made by considered evidence by said either was be nothing 379-80, 383-84, (N.T., Trial, 357-58, at the jury. on judge cautioned 427-28). by also jury was Furthermore, 70-71, 379, 460-61). Trial, (N.T., at point. as to the correct law on charged jury carefully the court 475-77). Trial, (N.T.. any at We believe robbery. from the statement prosecutor’s derived possible prejudice by statements successfully neutralized these other trial court. attorneys and the on Therefore, appellant’s appeal issues finding neither merit, of sentence of the judgment affirm to contain we court. lower affirmed.
Judgment sentence BARTANUS, Sr., Appellant, Joseph Lis, Bertha his wife Bernard V. LIS and Lis Marshall. Sandra Pennsylvania. Superior Court Nov. Argued 1983. July
Filed 1984. *2 Wieand, J., opinion. concurred and filed *4 Vandenburg and B. Washington,
Edward Morascyzk, Hall, Fairfax, Va., appellant. for Ecker, for
Roger Washington, appellees. J. ROWLEY, HESTER, JJ. Before and WIEAND ROWLEY, Judge: sustaining appellees’ from an order appeal
This is a direct complaint trespass appellant’s preliminary objections appellees. Appellant’s entering and favor judgment his sister brother-in- alleged appellees, complaint persuaded appellant’s enticed and daughter, and their law result, that, his father and as a stay away son to physical stress and emotional appellant suffered severe damages. he is entitled to recover disorders for which complaint to the objections filed Appellees preliminary of the raising and also bar two the nature of a demurrer court sustained the limitations. The trial statute of year in favor of judgment and entered preliminary objections objec- nature” of the that the “definitive stating appellees, This followed. pleading. appeal further precluded tions in his complaint the facts averred contends that (1) of his son’s alienation causes of action support infliction of (3) the intentional affections, (2) harboring, and inso- the trial court’s order distress. We affirm emotional to the causes purported it the demurrer far as sustained However, harboring. of affections and action for alienation to sustain alleges sufficient facts find that the we infliction of of action for the intentional cause potential and, thus, as the trial court’s insofar emotional distress regarding that against appellant judgment order entered relief, reverse. claim for we in the nature considering preliminary objections whether, on the demurrer, is question presented
of a averred, certainty recovery that no says the law with facts Philadel Hospital v. Misericordia is possible. Hoffman A 501, 503-504, 267 A.2d 439 Pa. phia,
53 demurrer admits every well-pleaded material fact set forth in the complaint, as well as all reasonably inferences deduc- therefrom, ible but not Burd, conclusions law. Sinn v. 146, 149-150, 486 Pa. 672, (1979); 404 A.2d 673-674 Gekas 1, 5, 469 Shapp, 691, Pa. 364 A.2d (1976); 693 Chorba v. Inc., Davlisa Enterprises, 497, 500, 303 Pa.Super. 450 A.2d 36, (1982). 37 The does provide law a “magic formula” to determine the of a sufficiency plaintiff’s complaint, how- ever, the law is clear that a demurrer can only be sustained in a case free from doubt. v. Misc.cordia Hospi- Hoffman tal Philadelphia, supra; Chorba v. Enterpris- Davlisa es, Inc., 303 Pa.Super. 38; at 450 A.2d at Pike County Corp. Hotels 262 Kiefer, 126, 135, Pa.Super. 396 A.2d (1978). 681 case, the instant the trial judge appellees’ sustained demurrer to the complaint upon his that, determination Pennsylvania, parent a has no cause of against action third party for the alienation of the affections of a minor child. agree. We question
The
whether
parent
may recover from a third
party for the alienation of the affections of his or her child
appears to
abe matter of
impression
first
in our Common
time,
wealth. At one
Pennsylvania recognized a common-
law cause of action for alienation of the affections of a
wife,
husband or
see Keath v.
37
Shiffer,
Pa.Super. 573
(1908). However, all such causes of action were abolished
§
by statute in 1935. 48
170;
Pa.C.S.A.
see Antonelli v.
Xenakis,
Pa.
In general no
cause of action for the alienation of the affections of a child
recognized
at common law. See
Cuthbert,
Miles v.
(1909);
N.Y.S. 703
Pyle Waechter,
202 Iowa
(1926);
N.W. 926
Schuppin v.
Church, 435
Unification
F.Supp.
(D. Vermont)
(2
One more, without alienates from its parents the child, affections of a whether a minor or age, of full is not liable to the child’s parents. in the Restate expressed the position
In accordance with
*6
this
that have considered
ment,
majority
jurisdictions
the
by a
a cause of action
recognize
refused to
have
question
v.
Hyman
a child’s affections. See
alienation of
for
parent
Scholz
(1983);
648
Moldovan,
305 S.E.2d
Ga.App.
166
(1980); Ed
Scholz,
v.
N.J.Super.
177
(1979);
11
Edwards,
296, 259 S.E.2d
N.C.App.
43
wards v.
(Minn.1979); McGrady
326
Lindquist,
Bock v.
278 N.W.2d
(1970),
Rosenbaum, 62 Misc.2d
182,
The circumstances abuses, in a for which potential grave ed demonstrate and, intra-family controversy, object child becomes monetary matters. indeed, disputes in over pawn a resulting dissolution marriage usual case of the more parent deteriorated a of action one relationships, by cause against another for of a alienation child’s affections would exacerbate the and become a unhappy relationships tool for use of strategic advantageous family one member over another.
Id. at 327-328. hold that
Accordingly, parent we a cause action for of a cognizable alienation child’s affections is not Pennsylvania.1 argues also avers facts
sufficient to set forth a cause of action “harboring” minor are no child. We aware of case Pennsylvania specifically deals with an action for Other harboring. juris *7 dictions, however, recognized have a cause of action for enticing inducing or a child remain from away to home. Hinton, (D.C.Cir.1970) See e.g. Hinton v. 436 F.2d aff'd (D.C.Cir.1974); 492 F.2d (SECOND) RESTATEMENT § OF According Restatement, TORTS 700 to the § 700, in to a order establish that third has “har party child, bored” a the facts an must show interference with the interests of parents the child’s or other custodian. lawful Furthermore, the facts must demonstrate the that actor induced or enticed the child to home away remain with knowledge parent that the or other did lawful custodian not consent. if Pennsylvania
Even to a recognize were cause of Restatement, child, action under 700 for a the haboring facts in complaint averred the instant would be insufficient an satisfy complaint the elements of such action. The herein does not aver that had appellant custody lawful of his son at time of appellees’ the allegedly tortious acts. Indeed, the record discloses appellant’s that son has lived Appellees argue appellant’s 1. that was not son a minor when suit was instituted, years age Accordingly, was 20 they since he of at that time. contend that even if a cause for of action alienation of a minor’s cognizable Pennsylvania, affections inapplicable in it would be in the case at bar. Because we have determined that there is no cause of child, action for alienation of the affections of a whether a minor or age, of full we need not issue. address this Avella, he appellees Pennsylvania
with
since
when
legal
A
age.
dispute
was less
of
over
years
than two
However, the dispute
did
in 1978.
was re-
custody
arise
17, 1978,
April
solved
wherein the
by
stipulation
dated
parties agreed
appellees’
the
would remain in
child
Therefore,
appel-
not interfere with
custody.
appellees did
continuing
lant’s
his consent
rights
without
custody
provide
home for
son.2
that his complaint
further maintains
av
a claim against appellees
ers facts sufficient to make out
From
for the intentional infliction of emotional distress.
case,
record in
it is unclear whether this issue was
the
this
court.
can
determine whether the
raised
the trial
Nor
we
appellees’
the
it
trial court considered
claim when
sustained
in their favor.
judgment
entered
preliminary objections
not
note
is
divided
appellant’s complaint
properly
We
for
causes of action now asserted.
separate
into
counts
the
1020(a). Rather,
the
sets forth one
Pa.R.C.P.
of
and a
count for
count
alienation
affections
second
damages
incorporates
allegations
which
punitive
error, however,
is
one
procedural
first count.
rights
forecloses the substantive
necessarily
which
(“[t]he
stage
any
court at
parties.
every
Pa.R.C.P.
disregard
proce
error or defect of
may
any
... action ...
rights
dure which does not affect the substantial
*8
Mills, Inc. v.
203 Pa.Su
parties”).
Snavely,
See General
162,
540,
(1964);
Clark,
167, 199 A.2d
543
Louis v.
227
per.
547, 550-555,
298,
(1974);
Pa.Super.
323 A.2d
299-300
Phil
535,
(1975).
D
C 3d
More
adelphia
Konopacki, &
over,
the
the
challenge
the
did
form of
com
appellees
they
in their
and
have not
plaint
preliminary objections,
Thus, this
appeal.
raised this
on
claim of error has
issue
1032;
waived. Pa.R.C.P.
Goodrich AmRam 2d
been
by appellant
support
cases
of his
are not
2. The
cited
claim
control-
here,
ling
they
mainly
party
since
deal
with situations wherein a third
custody
abducted a
child or
with
under
minor
interfered
lawful
no
474,
right.
e.g.
Page,
color of
See
Pickle v.
252 N.Y.
The relevant set in appellant’s complaint facts forth are Sr., Joseph Bartanus, follows. is father Joseph Bartanus, Jack (Joseph Jr.), Jr. who bom May was on 1961. Joseph Bartanus, Jr.’s mother Anne Hamprecht is wife, appellant’s former who Appel- now lives Germany. lant Joseph’s and mother in 1963. May were divorced Lis, sister, appellant asked Bertha B. and Bernard Lis, V. husband, action, her appellees in this to his son raise while assignment he was on United States Govern- ment in places outside the United States. While appellees son, appellant cared for his initially monthly sent $50.00 payments to appellees’ Avella, home in Pennsylvania, and provided clothing expenses medical Appel- for his son. lant also set aup purchased trust fund and insurance for his son’s benefit.
From through appellant assigned vari- ous posts. When days he was allowed thirty every leave two years, he Pennsylvania travelled to to visit his son. The monthly support check he grad- sent appellees ually increased to month. per $180.00 also sent *9 and his son this time. during
clothes recreational items to Avella, appellant Pennsylva- In retired to and moved great From a deal through appellant spent nia. developed good time with relation- Joseph they Jr. and However, appel- Jr. continued to reside with ship. Joseph lees. him his in proposed that son live with appellant completed year high his senior school.
Florida while he to his sister she was a Appellant suggestion made this while At she a rage, car. that time flew into passenger his names, and calling appellant using language, abusive harm, in of his threatening presence him with bodily Lis, he made to too suggestion When the was Bernard son. him appellant foul and threatened with things said about afraid his bodily harm. was brother-in-law he him to be of a violent nature. knew because Jr. represented Joseph sister often that was Appellant’s and listed in with last name of her son he was school Appellees attempted adopt Jr. and official- Joseph “Lis”. to change they name told ly notifying appellant: his without him; they prevented Jr. from appellant that did love Jr. relatives; and, him they his told that his father’s visiting poisoned that he get house had rats and was and could dirty being there. Nevertheless, seventeen, he accom- when Jr. was Joseph him Munich, his to panied Germany, father to live with explained and year. Joseph appellees one Jr. wrote to his Appellees’ it his decision live with father. was own des- continually disparaged appellant, letters to Jr. Joseph whoremaster, liar, him and con artist who cribing telephoned Appellees repeatedly did not love his son. really Germany he his father and Joseph Jr. with while he commit suicide unless returned Pennsyl- threatened to him to to his tell They urged congressman vania. write father. At the kidnapped by him that he had been Joseph a note to his father appellees, Jr. wrote behest long punish that he did not have to live and God would him.
59 and moody unhappy, appellant Joseph When Jr. became 1977, appellant him has Pennsylvania. back to Since sent persuaded have appellees his son six times because seen 54 Joseph away Paragraphs Jr. to his father. stay complaint specifically 55 of the state: and has, a result of plaintiff/father being 54. That the son of deprived seeing of his and as a result the defend- good ant’s rela- maliciously viciously destroying and son, the tionship plaintiff with his has suffered severe distress, great blood, he passes emotional loss of sleep, perspires great trying sleep, pain, deal while to mental anguish, high and pressure. nervousness blood intentional, 55. by That co-defendants have their reck- acts, less and caused severe plaintiff wanton emotional distress; conduct that of co-defendants was out- and and rageous general- intolerable against offends ly accepted standards decency morality; and because of this has and plaintiff experienced continues to experience severe emotional distress in he has lost child, the love and of his affection the normal only prop old age; he is and has sleep- nervous and trouble lonely ing; that he lonely age. faces a and bleak old (emphasis added.)
An
action for
intentional
infliction mental or
emotional
recognized
distress has been
Pennsylvania.
See,
Lawrence,
Papieves v.
487 Pa.
A.2d 118
(1970);
Banyas
Pa.Super.
v. Lower Bucks Hospital,
(1981);
Freedman,
(1976); see
Chuy
also
v. Philadelphia Eagles Football
Club,
(3rd Cir.1979)
One who outrageous extreme conduct intention- or ally recklessly causes severe emotional distress to liability
another is for such subject distress, emotional and if bodily harm to the other it, results from for such bodily harm. Lawrence, Papieves Court, our supra, Supreme rely-
ing in part
(SECOND)
on Section 46 of RESTATEMENT
OF
TORTS, determined that an individual is entitled
protec-
tion from mental distress directly caused by wanton and
outrageous
conduct.
Liability has been found only where the conduct has been
character,
so
in
outrageous
and so extreme in
as
degree,
to go beyond all possible bounds of decency, and to be
regarded
atrocious,
and utterly intolerable in a civi-
lized community.
the
Generally,
case is one in which the
recitation of the facts to an average member of the
community would arouse his resentment
the
against
ac-
tor,
exclaim,
and lead him to
“Outrageous!”
We note that the Pennsylvania
sanctioning
decisions
ac-
tions for the intentional
infliction of emotional distress
involve situations different than the one in the instant case.
For
in
example,
Banyas
Lower
County Hospital,
Bucks
supra,
the court found that the hospital and treating physi-
cians could be held liable for intentional or reckless inflic-
tion of emotional distress if the
had,
doctors at the hospital
fact,
in
falsely prepared hospital records
attributing
pa-
tient’s death solely to injuries inflicted by plaintiff. 293
Pa.Super. at
(1978), the plaintiff alleged the defendant had intention- ally, maliciously, outrageously prevented and any personal contact or other communication the plaintiff between daughter, causing her to suffer ex- thereby plaintiff treme mental distress. The trial court dismissed com- plaint failure to state a cause of action. The Vermont Supreme reversed, holding Court the facts averred adequate were to sustain a cause of action for the newly recognized tort of intentional infliction emotional dis- also, tress. Kajtazi Kajtazi, F.Supp. See 20-21 (E.D.N.Y.1978) (court upheld cause of action for the inten- tional infliction of emotional distress inter alia where the father abducted child legal wife). from the of his custody recognized
As
our
Supreme Court in Papieves v.
Lawrence,
supra,
intentional
infliction of emotional
distress is an evolving tort and its scope has not
been
yet
clearly
defined. 437 Pa. at
However,
conduct. Banyas at Philadelphia at 437 A.2d Pa.Super. Chuy 1275; Club, F.2d at RESTATEMENT Football Eagles § (1965). i (SECOND) comment OF TORTS of this tort to circumstances involv application The disputes may result some difficulties. ing intra-family However, dispute case does not involve a between the this therefore, that an parents. perceive, natural We do not of emotional distress in action for intentional infliction this to the same attendant subject potential situation is abuses alienation of a child’s affections. to an action the Con 182, 189, 190, tra, Rosenbaum, 62 Misc.2d McGrady (1970) 189-190 37 A.D.2d 324 N.Y. N.Y.S.2d aff'd In an action for the intentional infliction of S.2d distress, central is there inquiry emotional the whether intentional, conduct and outrageous plaintiff whether suffered severe distress as a result of that conduct. focus, then, is the conduct has on the plaintiff. on the effect actually may Whether the conduct alienated the child be in an action for alienation of the Conversely, irrelevant. child, necessary affections of a it is not that the conduct and, more the focus is outrageous importantly, involved be Thus, has on the child. prohibited on the effect the conduct was, fact, it determine the child imperative is whether or parent parents. alienated from Furthermore, applica- there are in limitations in the built of intentional infliction of newly recognized tion of the tort holding plaintiff emotional distress. that a could recover or for serious mental emotional distress caused rela- mishandling body intentional act of of deceased tive, our Court observed: Supreme recognize any legal liability extension of acts
We distress its prob- which cause emotional is without recognize lems. also that the law cannot serve to We mind; men’s guarantee peace Judge all late *13 remarked, “Against a of the large part MAGRUDER clashing temperaments frictions and irritations and life, incident to in a a certain participation community toughening of the mental hide is a better protection than the law could ever be.” [Magruder, “Mental and Emo- tional in the Torts”, Disturbance Law of 49 Harv.L.R. 1033 (1936)]
But this case is not in that category. There can little be doubt that mental or emotional brought disorders on by conduct such as that set forth in the complaint at bar may every real, be bit as every bit as debilitating as ailments which have more obviously causes. physical For this reason, the obvious and inherent difficulties of the proof, or disproof, of emotional distress and the measurement of damages for such injury cause, are not adequate standing alone, to deny recovery ...
It goes saying recover, without that in order to a plaintiff asserting such a cause of action must be all prove able the elements of his by proper case evidentiary standards. Papieves Lawrence, 373, 378-379, 437 Pa. 263 A.2d 121 (1970).
Therefore, we conclude that appellant herein should be afforded the opportunity attempt to prove appellees’ conduct caused him to suffer severe mental and emotional distress. We find that appellant set forth sufficient facts in his complaint to overcome a ruling against him as a matter of law.
Finally, appellees that, maintain even if appellant’s com- plaint sets forth a valid cause of action for intentional infliction of distress, emotional it is nonetheless barred by the applicable year two statute of limitations governing personal actions for injuries. 42 5524(2). Pa.C.S.A. We cannot decide this claim on the record before us. The order of the trial court this case sustained appellees’ prelimi- nary objections raising the bar the statute of limitations regarding the claim for the alienation of a child’s affections. It appears from the trial court’s opinion, that the objection upon sustained a determination that appellant’s son was not a minor at the time suit was instituted. There is no indication, however, that the trial court considered whether year the two statute of limitations barred an action for the *14 64 distress, nor can deter- we infliction of emotional
intentional in the court argument this appellees mine advanced whether below. applica of limitations out that the statute point
We
is a
defense.
personal
injuries
to
waivable
ble
actions
(1969);
219,
Pa.
Order in part, reversed and remanded for further proceedings not inconsistent opinion. with this J.,
WIEAND, concurring files a opinion.
WIEAND, Judge, concurring:
The issue this difficult case is whether a father has a *15 cause of against action a sister and brother-in-law for inducing a son to reject his father and refuse his father’s entreaties to return to the father’s home.
I agree fully with the majority appellant that the father cannot maintain an action for the mere alienation of his son’s affections. Because the reasons for disallowing such sound, a cause of action are I would not circumvent them allowing a similar action guise under the of a tort action for intentionally inflicted emotional distress.
However, I would hold that where there is an intentional interference with a parent’s custody child, his or her injured parent is entitled to a remedy. Interference with custody rights of a parent has been recognized as a tort by (Second) the Restatement of Torts 700 as follows: who, One with knowledge the parent does not consent, abducts or compels otherwise or induces a minor child to leave a parent legally entitled to its or custody not to return parent to the him, after it has been left is subject to liability to the parent. rule,
Under this
liability arises from interference
with
parental relationship. See:
Wood,
Wood v.
66 Brown, See: spouse. or Brown v. Kramer v. supra; Leineweber, right supra; Engel, supra. Plante v. is not only action based on the loss of the child’s services parent’s right also on the to the of the companionship but Wood, Kajtazi Kajtazi, supra; child. See: v. Wood in such an action include the Damages recoverable supra. society loss of of the child and mental distress. Restate- § 700, (Second) g. of Torts comment ment See: Kramer Leineweber, supra; Kajtazi Kajtazi, supra. in the instant case a cause of complaint
Does the aver interfering appellant’s rights? action for with the custodial An a demurrer cannot entered unless the granting order be face that claim complaint plaintiff’s discloses on its permit cannot be sustained because the law will not recov- doubt, If there is must resolved in ery. any doubt be overruling favor of the demurrer. v. Milzoco Build- Wicks 614, 623, (1983), ers, Inc., quoting 503 Pa. 470 A.2d 1, 5-6, (1976); 364 A.2d Shapp, Gekas v. Pa. Inc., Enterprises, Pa.Super. Chorba v. Davlisa 450 A.2d to the Applying this standard averments of the *16 case, I in the instant am forced to conclude that preliminary in nature of a demurrer objections improperly the were wife, being sustained. after divorced from his Appellant, agreed by appellant’s that his infant son should be raised Avella, sister and in Pennsylvania brother-in-law because on appellant foreign assignment for the United States in alleged complaint Government. It has been the son, sent for the of his appellant faithfully money support insurance for his son a purchased and established trust in fund for him. retired 1972 and moved back to There he maintained a close with his relationship Avella. son, his son continued to appellant’s but live with sister and A dispute appellant requested her husband. arose when that his son return to the home of his father. It will serve no to recite here good purpose many the factual averments to this pertaining dispute. They alleged fully have been complaint. the it to quote paragraph Suffice 53 of the alleged: where it is That the persuaded co-defendants have enticed and the father, son to plaintiffs stay away to have nothing to with do him and in to leave his particular and although they father’s home not to return know it is wish the and desire of father to have his son with him. are of
These averments sufficient to state a cause action. be, in may history It well view of the and relationship has among parties long which existed for such a period time, of will be to a appellant prove unable cause of claim, action. His based it is on highly as emotional family issues, certainly be, will be It also may controversial. appellees assert, that appellant long delayed has too seek- redress in the ing courts. The difficulties with which appellant will be faced in his cause undoubtedly proving of action, however, do not permit summary disposition which deprive would him of his day court.
Therefore, I and concur the decision reverse remand However, for further proceedings. cause action stated, in is for child to return my opinion, inducing a I custody parent. of his would not recreate cause of calling action alienation of affections it an intentional infliction emotional distress. A.2d
COMMONWEALTH ex rel. Akili S. TAYLOR and Zalika A. (sic) Taylor, By Through their next friend their
mother, Evonne R. TAYLOR Anthony TAYLOR, Appellant. W.
Superior Pennsylvania. Court of
Argued Jan. 1984. July
Filed 1984.