*2 JACOBS, Bеfore WATKINS, Judge, President HOFFMAN, PRICE, CERCONE, der VAN VOORT and SPAETH, JJ.
JACOBS, Judge: appeal is sustaining preliminary This from the objections appellants’ complaint trespass to the in wrongful against appellees alleg- death the above-named ing a cause of action for intentional infliction of mental plaintiffs distress. given The were their leave to amend complaint appeal but failed to do so. This followed.
Normally
merely sustaining prelimi
an order
nary objections
demurrer,
in the nature of a
without tak
ing
complaint
further
dismissing
action such as
is
not
appealable
Cherry
Empire
final
order.
Mut.
v.
Co.,
7,
Ins.
(1965);
417 Pa.
A.2d 796 case, the low Watkins, supra. the instant Workers In v. appel allegations raised er the factual ruled that court con complaint not constitute lant’s did infliction of intentional required tort of duct put therefore, were, The mental distress. no new facts reveals since record out of court comply lower court’s alleged order with could be pleading. specific therefore We of more requirement equally it true And empowered the case. to decide are are the averments only before this court facts ad purposes complaint, present the demurrer and for in the well-pleaded forth every material fact set mits pleading rea it is the inferences to which addressed and sonably of law. therefrom not conclusions deducible but Properties, Commonwealth Creamer Monumental (1974); Buchanan v. Inc., 459 Pa. A.2d 812 135, 320 Ass’n, Pa. Brentwoоd Federal Sav. & Loan Hospital (1974); A.2d 117 v. Misericordia Hoffman Philadelphia, (1970); 439 Pa. Pa pieves (1970). v. Lawrence, Pa. A.2d
Turning
apparent
it
complaint
it is
first
refers
two
unrelated credit
transactions.
Harvey
Allied
transaction
between
Mae
Johnnie
(hereinafter
Company
AL-
Consumer Discount
called
financing
on
of an automobile
LIED) concerned
March,
after
made the loan
about
Sometime
Allied
Harvey
job. The car
Mr.
and lost his
became disabled
repossessed,
exe-
judgment
then
confessed and
was
*4
proceedings
of the
cution
were instituted on the basis
judgment.
proceedings
confessed
These
were abandoned
due to the
District
decision
United States
Court’s
F.Supp.
aff’d,
Lennox,
(E.D.Pa.1970),
Swarb
191,
(1972).1
767,
U.S.
S.Ct.
The appellant second Tay- transaction involves Carrie lor co-signed who given a note to son Allied her Appellees assert the letter sent to each was merely attempt comply applicable the then Phila- with delphia letter, Local firm’s Rules below the Procedure. letterhead, read: Dear Harvey: Daniel and John hereby You are judgment has been notified and advised thаt against you you entered and each in the of Common Court Term, Philadelphia County, Pleas of March 69 No. 7946. Arrangements being your property are sell 1003 West made to 296, City Arizona at Hall on Street the sheriff in Room sale Monday, September p. non-pay- at 2:00 m. because ment of above debt. A schedule distribution money proceeds posted by of this will the sheriff be filed per as Rule 3129c. matter, you No further notice will be sent this sale, order stop this sheriff this letter contact the writer of telephone at once. The number is PE-5-5857. truly, Yours NISSENBAUM, & SEIDNER RUDOLPH Attorney’s-at-law By: - Gary A. Rochestie Representative Authorized PE-5-5857
382 purchase later Allied
the of an time Some automobile. judgment April sto- confessed the car was on 1969 and It len. Allied collected was later recovered and $277.00 Taylor damages policy. for under the Carrie insurance stopped payments son made her on loan after doing after months so and continued to do for few so repossessed letter Allied sent a the automobile. She was 3 by Harveys the law firm and identical that sent alleges appellees make out this now action of action for intentional infliction of mental distress. begin awith
Any inquiry into this tort must 46 (Second) Torts reference to the Restatement (1965) provides inter which alia:
“(1) by in- One who extreme conduct and tentionally recklessly dis- severe emotional causes subject liability such emotion- tress another is bodily results from distress, if harm to the other al and it, bodily for such harm.” Manchestеr, Supreme Pa. 410 Our Court in Forster v. recognized of inten- (1963), the tort in section tional infliction of mental distress as stated Papieves first revised Restatement of Torts and (1970) court Lawrence, 437 Pa. A.2d it proper presented case indicated that when with the adopt 46 of Restate- would formulation of Section Pennsylvania (Second) paucity ment of Torts. The sсope has cases in this this area reveals that the tort yet to be in the defined case law of our state. only recently recognized
“The law that the has freedom directly or out from wanton mental distress caused indepen rageous legal protection entitled to action, years any recent dent of other cause many regard.” lеgal developments seen in this have 378, 263 437 Pa. at A.2d at 121. simply re- which letter Appellant Taylor a second also sent she immediately if quested office the firm’s she contact property. stay wished to of her sale Magruder,
See also “Mental Emotional Disturbance Torts,” in the Law Review Law Harvard *6 provide helpful (1936). The comments to Section 46 guide enumerating in In Com- the elements of this tort. ment d to the section it stated:
“Liability only has been found where the conduct has outrageous in character, been so extreme de- in and so gree, go beyond possible decency, as to all bounds of regarded atrocious, utterly and to be intolerable as and community. Generally, in a in civilized the case is onе which the the average recitation of facts member community of against the would arouse his resentment ‘Outrageous.” the actor, exclaim, and lead him to (Emphasis added.) apparent gravamen
It is that the of this tort is that the complained conduct of must of outra be an extreme or geous type. Corp. Davis, See Public Finance v. 36 Ill. App.3d 99, (1976). N.E.2d Viewed in relation to the above it standards is clear that the com conduct plained of outrageous in this case is not so extreme and support as to an action for intentional infliction of men tal distress.4 The of existence the rela debtor-creditor tionship give will not in and itself rise to cause of necessary action. It is still to show an extrеme and out rageous pursued procedure by abuse the collection the (Second) collectors. Restatement of Torts Com § (1965). ment e The by letters sent appellants beyond way decency. were in no the bounds of They merely pursue stated that Allied intended to its given by Harveys remedies for default on the notes way Taylor. language in no and Cаrrie used was extraordinary capable any produce of or intended to rep unidentified mental And the fact that an distress. presence of Harveys in the resentative of Allied told It 4. will be necessary not analyze for us to of each conduct appellee separately assuming arguendo since appellee that eaсh responsible was every alleged act their complaint, a cause of action would still made not be out. sold, was to neighbors their be house their
one of out, junk get their days they which had and extreme embarrassing, not insulting although and Plaintiffs the context of Section' within hard expected required to be necessarily and be must rough language, to oc amount ened to a certain un definitely inconsiderate acts that are casional d (Second) Torts Comment kind. Restatement appellee’s consid (1965). each of Nor can type as within characterized be ered as whole in cases dunning illustrated practices the extreme collecting liable. creditors have found courts which other Co., 268 N. 359 Mass. George Marsh v. See Jordan University Fo (1971); Extension LaSalle E.2d 915 *7 (1934); Barnett garty, 253 N.W. 126 Neb. 1303, 242 Co., N.W. 214 Iowa Collection Service (1982). allege that the conduct
Appellants further appellees knew outrageous” the in and “extreme completed absent proceedings could not be that execution a re Lennox and absent hearing pursuant to Swarb v. passed years had judgment, the as over five vival of true,5 appel Assuming this to be without a revival. still requisite lants have not shown the conduct that necessary to sustain an action under 46 of the Restate (Second) very ment may These Torts. contentions any well be valid defenses to execution that would have sought by they been appellees, the but do not the elevate conduct pursuing legal rights of the their to outrageous “extreme and conduct.”6 be specifically the rule was to stated that 5. The Swarb decision application judgments sought be entered given prospective to to against members signed after June on clauses before and 1, 1970, or by after November of the class involved confession expiration Pennsylvania General the of the next session the by adjourned permanently Assembly if the session had F.Supp. date. 314 at 1101. be for court to it would erroneous this appellees contend 6. As propriety of or its avail- as to the execution a mistake hold that outrageous conduct. extreme or ability amounts to elements plead all appellants have failed to lower standards, as such by proper and their case objec- preliminary appellee’s properly court sustained determine, duty to of the court tions, for it was the rea- could appellee’s conduct instance, whether first outrageous toas regarded and sonably as so extreme be permit recovery.
Order affirmed. opin- dissenting concurring HOFFMAN, J., and files a SPAETH, J., ion, joins. in which dissenting.
HOFFMAN, concurring Judge, Majority’s that our Court I in the conclusion concur though jurisdiction the lower appeal, has this even over complaint without court did not dismiss However, from oportunity dissent I must amend. to state Majority’s holding failed have dis- emotional infliction of cause actiоn for intentional lower Therefore, the order tress. I would reverse ap- objections to sustaining appellees’ preliminary court pellants’ complaint. (Second) (1965) provides,
Restatement of Torts 46§ pertinent part: “One who extreme and intentionally recklessly severe emotion- causes subject liability al emo- distress, another such i% distress, bоdily tional if results harm to other *8 it, from bodily for such harm.” Comment d elaborates Liability upon the standard “. . . enunciated 46:§ only has been where so outra- found the conduct has been geous character, go degree, be- and extreme in as to so yond regarded possible decency, to all bounds of and be atrocious, utterly as commu- and intolerablе in a civilized nity. Generally, the case one in. which the recitation is average community of facts to an member of the would against actor, him to arouse his resentment lead and ” exclaim, ‘Outrageous!’ Papieves Lawrence, Cf. 373, (1970). Pa. Majority
The appellees’ states that conduct was not outrageous” “extreme and meaning within the of of 46 the Restatement (Second) of Torts, even if we assume appellees that proceedings knew that execution could not completed be pursuant absent hearing a to Len Swarb v. nox, F.Supp. 1091 (E.D.Pa.1970), aff’d 405 U.S. 92 S.Ct. (1972), and of a revival 31 L.Ed.2d judgment. pg. See pg. at 383 of 244 Pa.Super., at 773 of believe, 368 A.2d. I however, that it would be and appellees unconscionable for to immi threaten an nent appellants’ sheriff’s sale property fur without ther they notice if possibly knew that the sale could not completed.1 be or held Appellants allege appellees that knew supra, that Lennox, precluded Swarb v. execution on property prior hearing absent a on appellees’ merits allegе Appellants claim.2 also 1. especially outrageous It would be appel- and unconscionable for lee appellee law firm they and law clerk to action that threaten Responsibility knew had no basis in law. Canons of Professional 7-102(A)(l) DR (2) provide: representation cli- “In his a ent, lawyer suit, a (1) position, shall a not: File a assert defеnse, trial, delay a of his cli- or take other action on behalf ent when he would knows when such action it is obvious that merely serve (2) maliciously injure Know- harass or another.- ingly advance claim exist- or defense that unwarranted under law, ing except may if it that he claim or defense advance such extension, supported by can be good argument for an modi- faith fication, existing or reversal of law.” Majority questions Lennox, supra, whether Swarb v. would prevent an execution hearing absent a in those cases in which a judgment pgs. prior confessed 383-384 was entered to 1970. See at of specifically with Pa.Super., pgs. at in Swarb 773-774 of A.2d. The court problem people addressed this and held that those $10,000 incomes under signed credit who have consumer transaction judgment documents or with clauses leases confession entitled, “are prior judgments entered execution on confessed prior expiration [November 1970 or next session of the Pennsylvania had Assembly General if the 1970 session permanently adjourned by opportunity of a to the date] hearing on proce- such claims with the conducted accordance guarantees Swarb, dural supra, process at due clause.” 1102. At hearing, such a appellees burden would bear the default, proving due, obligation, execution of the necessary the amount other elements to would be sustained execution. If burden, this from less than judgment effeсtive, purposes, for lien entry. the date of Appellants allege they its earn each $10,000 per year engaged they con- and that each sumer credit transaction.
387 appellees that sheriff’s could be held un- knew a sale not complied procedures, appellees requisite in- with the til appellants, reviving cluding to confessed nоtice for according appel- Nevertheless, appellee, to judgments.3 complaint, sale lants’ threatened an immediate sheriff’s only delayed appelleé by contacting law which could be alleged by paying debt; would re- firm or prevent the sale. opportunity no or to ceive other notice intentionally appellees used short, appellants that In aver of in- as means immediate execution threat an knowledge that harassment, despite the timidation and not be unless such execution would available safeguard designed complied procedures to further with appellants’ all rights.4 Assuming that Co., Hyde-Murphy true, Eckborg allegations v. above are Lear, (1971); Shumaker 442 Pa. (1975), I believe Pa.Super. A.2d 249 235 ex- outrageous and legal system is such an abuse of the of the conduct, Restatement treme under actionable § emo- proximately causes severe (Second) Torts, if it tional distress. support my position in
I Comment find additional for is provides “. . It for A to which as . follows: § instance, determine, court to first whether may reasonably regarded as so be defendant’s conduct recovery, wheth- permit extreme as to may necessarily dif- er it is men so. reasonable Where court, jury, subject it the control of fer, is for whether, particular case, the determine 3. See Pa.R.C.P.; Rule 3025 § also Rule Pa.C.S. 3025. See 3033, Pa.R.C.P.; § 42 Pa.C.S. Second, Restatement, g 4. Contrast Comment liable, that, g Torts. Comment actor stаtes is never “[t]he legal example, upon his where he done no than to insist has more rights permissible way, though he is well aware even In the such insistence certain to cause emotional distress.” bar, appellants appellees impermissibly at threat- case assert remedy ened immediate resort to not then available. *10 outrageous sufficiently result has extreme and been may people liability.” very least, At the reasonable appellees’ suf- differ conduct has been as to whether liability. ficiently extreme to result court reversed. lower should be order dissenting concurring J., joins this SPAETH, opinion. A.2d Pennsylvania
COMMONWEALTH KAMINSKI, Appellant. Ellen Grace Pennsylvania. Superior Court of June 1976. Submitted Dec. Decided