Lead Opinion
This is аn appeal from the sustaining of preliminary objections to the appellants’ complaint in trespass and wrongful death against the above-named appellees alleging a cause of action for intentional infliction of mental distress. The plaintiffs were given leave to amend their complaint but failed to do so. This appeal followed.
Normally an order merely sustaining preliminary objections in the nature of a demurrer, without taking further action such as dismissing the complaint is not a final appealable order. Cherry v. Empire Mut. Ins. Co.,
Turning to appellants’ complaint it is apparent that it refers to two unrelated credit transactions. The first transaction between Johnnie Mae Harvey and Allied Consumer Discount Company (hereinaftеr called ALLIED) concerned the financing of an automobile on or about March, 1969. Sometime after Allied made the loan Mr. Harvey became disabled and lost his job. The car was then repossessed, judgment was confessed and execution proceedings were instituted on the basis of the confessed judgment. These proceedings were abandoned due to the United States District Court’s decision in Swarb v. Lennox,
The second transaction involves appellant Carrie Taylor who co-signed a note given to Allied by her son for
Any inquiry into this tort must begin with a reference to the Restatement (Second) of Torts § 46 (1965) which provides inter alia:
“(1) One who by extreme аnd 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.”
Our Supreme Court in Forster v. Manchester,
“The law has only recently recognized that the freedom from mental distress directly caused by wanton or outrageous conduct is entitled to legal protection independent of any other cause of action, and recent years have seen many legal developments in this regard.”437 Pa. at 378 ,263 A.2d at 121 .
“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 faсts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous.” (Emphasis added.)
It is apparent that the gravamen of this tort is that the conduct complained of must be of an extreme or outrageous type. See Public Finance Corp. v. Davis,
Appellants further allege that the conduct was “extreme and outrageous” in that the appellees knew that execution proceedings could not be completed absent a hеaring pursuant to Swarb v. Lennox and absent a revival of the judgment, as over five years had passed without a revival. Assuming this to be true,
Order affirmed.
Notes
. The Swarb decision, decided on due process grounds, precluded execution on confessed judgments if no hearing on the merits is held and if the judgment debtor’s income is under ten thousand dollars a year.
. Appellees assert that the letter sent to each of the appellants was merely an attempt to comply with the then applicable Philadelphia Local Rules of Procedure. The letter, below the firm’s letterhead, read:
Dear Daniel and John Harvey:
You are hereby notified and advised that judgment has been entered against you and each of you in the Court of Common Pleas of Philadelphia County, March Term, 69 No. 7946.
Arrangements are being made to sell your property 1003 West Arizona Street at the sheriff sale in Room 296, City Hall on Monday, September 9, 1974, at 2:00 p. m. because of non-payment of the above debt. A schedule of distribution of the money proceeds of this will be filed and posted by the sheriff as per Rule 3129c.
No further notice will be sent to you in this matter, and in order to stop this sheriff sale, contact the writer of this letter at once. The telephone number is PE-5-5857.
Yours truly,
NISSENBAUM, RUDOLPH & SEIDNER
Attorney’s-at-law
By: -
Gary A. Rochestie Authorized Representative PE-5-5857
. Appellant Taylor was also sent a second letter which simply requested that she contact the firm’s office immediately if she wished to stay the sale of her property.
. It will not be necessary for us to analyze the conduct of each appellee separately since assuming arguendo that each appellee was responsible for every act alleged by the appellants in their complaint, a cause of action would still not be made out.
. The Swarb decision specifically stated that the rule was to be given prospective application to judgments sought to be entered on clauses signed before and after June 16, 1970 against members of the class involved by confession after November 1, 1970, or the expiration of the next session of the Pennsylvania General Assembly if the 1970 session had permanently adjourned by that date.
. As appellees contend it would be erroneous for this court to hold that a mistake as to the propriety of execution or its availability amounts to extreme or outrageous conduct.
Concurrence Opinion
concurring and dissenting.
I concur in the Majority’s conclusion that our Court has jurisdiction over this appeal, even though the lower court did not dismiss appellants’ complaint without an oportunity to amend. However, I must dissent from the Majority’s holding that appellants have failed to state a cause of action for intentional infliction of emotional distress. Therefore, I would reverse the order of the lower cоurt sustaining appellees’ preliminary objections to appellants’ complaint.
Restatement of Torts (Second) § 46 (1965) provides, in pertinent part: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress, to another i% subject to liability for such emotional distress, and if bodily harm to the othеr results from it, for such bodily harm.” Comment d elaborates upon the standard enunciated by § 46: “. . . 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. Genеrally, the case is one in. which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” Cf. Papieves v. Lawrence,
I find additional support for my position in Comment A to § 46 which provides as follows: “. . . It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct
. It would be especially outrageous and unconscionable for appellee law firm and appellee law clerk to threaten action that they knew had no basis in law. Canons of Professional Responsibility DR 7-102(A)(l) and (2) provide: “In his representation of a client, a lawyer shall not: (1) File a suit, аssert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.- (2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.”
. The Majority questions whether Swarb v. Lennox, supra, would prevent an execution absent a hearing in those cases in which a confessed judgment was entered prior to 1970. See at pgs. 383-384 of 244 Pa.Super., at pgs. 773-774 of 368 A.2d. The court in Swarb specifically addressed this problem and held that those people with incomes under $10,000 who have signed consumer credit transaction documents or leases with confession judgment clauses “are entitled, prior to execution on confessed judgments entered prior to [November 1, 1970 or the expiration of the next session of the Pennsylvania General Assembly if the 1970 session had permanently adjourned by that date] to the opportunity of a hearing on such claims conducted in accordance with the procedural guarantees of the due process clause.” Swarb, supra, at 1102. At such a hearing, appellees would bear the burden of proving default, execution of the obligation, the amount due, and other elements necessаry to execution. If appellees sustained this burden, the judgment would be effective, for lien purposes, from the date of its entry. Appellants allege that they each earn less than $10,000 per year and that they each engaged in a consumer credit transaction.
. See Rule 3025 Pa.R.C.P.; 42 Pa.C.S. § 3025. See also Rule 3033, Pa.R.C.P.; 42 Pa.C.S. § 3033.
. Contrast Comment g to § 46 of the Restatement, Second, of Torts. Comment g states that, “[t]he actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress.” In the case at bar, appellants assert that appellees impermissibly threatened immediate resort to a remedy not then available.