MEMORANDUM OPINION
On August 15, 1988 Mildred Glick Friedman committed suicide. Plaintiff brings this action on behalf of the decedent’s estate and the decedent’s incompetent daughter, charging that defendant caused Ms. Friedman to take her own life. The case began in the Court of Common Pleas, McKean County, Pennsylvania, where a summons was filed on April 19, 1990. Defendant then removed to this court on the ground of diversity of citizenship. 28 U.S.C. §§ 1331, 1441. Plaintiff, in turn, filed a motion to remand to state court, contending that the removal was untimely. 28 U.S.C. §§ 1446(b), 1447. Defendant has countered with a motion to dismiss the complaint for its failure to state a claim upon which relief can be granted, Fed.R. Civ.P. 12(b)(6). Plaintiff’s motion to remand is denied, defendant’s motion to dismiss is granted.
I. MOTION TO REMAND
Before addressing the substantive issues in defendant’s motion to dismiss, this court will rule on plaintiff’s motion to remand. The essential facts are not in dispute.
At all times pertinent to this action, plaintiff was a resident of Pennsylvania, Defendant, a resident of Maryland, and the amount sought, over $50,000. Thus, this court would have had original jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332, and Defendant would be able to remove to this court upon timely application, 28 U.S.C. § 1441. In addition to a
The notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based....
Here, the Prothonotary for the Court of Common Pleas issued a summons which was served upon the defendant on April 26, 1990. The complaint, however, was not served until June 22, 1990. The petition for removal was filed on July 9, 1990, seventeen days after defendant received the complaint, but over two months since defendants had received the summons. Complicating matters slightly is additional correspondence between the parties, but ultimately the question is whether it was the summons or the complaint that triggered the 30 day period. If the summons was the “initial pleading setting forth the claim for relief” then removal is not timely; if it was the complaint, then all requirements for removal have been met.
Pennsylvania federal courts view this issue in rather inconsistent ways. All agree, however, that in order to satisfy the notice requirement, “a defendant must be able to ascertain easily the necessary facts to support his removal petition.”
Craig v. Lake Asbestos of Quebec, Ltd.,
In the instant action, the form summons stated only that “you are notified that [Charles T. Rowe ...] plaintiff(s) has commenced a civil action against you which you are required to defend.” (Petition for Removal Unnumbered Page 5). Plaintiff does not even make the argument that this satisfied the notice requirement. Rather, Rowe argues that a letter to defendant’s attorney dated April 26, 1990 which accompanied the summons triggered the time allotment. (Supplemental Brief in Support of Motion to Remand Exhibit A). The letter provides, in the last paragraph:
After investigation into the matter, an action was filed against Dorothy Marder for the death of Mildred Glick Friedman. It is based upon the tort of intentional or reckless infliction of emotional distress as set out in the Restatement 2nd of Torts § 46 (1965).
Rowe contends that this gave enough notice to defendant to start the time running when the summons was received. Defendant counters that this paragraph did not state the amount sought to be recovered, and thus did not contain enough information to know whether the action was removable.
The issues presented are: 1) whether this court should follow the ‘bright-line’ rule that regardless of its content a Pennsylvania Summons never triggers the removal period, 2) if not, should the court consider the state of defendant’s actual knowledge when determining the sufficiency of notice, 3) should the court allow documents such as the letter, which are outside the summons and complaint, to satisfy the removal statute’s notice requirement.
Craig v. Lake Asbestos of Quebec, Ltd.,
Later cases abandoned the bright line rule of Craig but swung far in the opposite direction. Not only did they adopt a summons-by-summons approach, they added a subjective element, evaluating each summons for the notice it provided in light of particular knowledge possessed by the defendant. In Moore, for example, the court held that the summons triggered the statute because “[pjlaintiff’s notice of deposition and the subsequent correspondence between plaintiff’s counsel and defense counsel evidence that defendants knew of the incident and the theories and specific causes of action.” 1
This court believes, however, that, by the terms of the statute, the issue is not what the defendant knew, but what the relevant document said. See
Ardison v. Villa,
The plaintiff in this case suggests that I consider the letter, mailed along with the summons, in determining whether the statute was satisfied. While Moore considered correspondence as relevant for that purpose, this court, having rejected any subjective evaluation, need not inquire of extraneous documents. Instead, the inquiry begins and ends within the four corners of the pleading. 2 The inquiry is succinct: whether the document informs the reader, to a substantial degree of specificity, whether all the elements of federal jurisdiction are present. See Wilkerson, at 1112.
Moore, Nero
and others are guided by a federal policy of strict construction against removal jurisdiction,
Nero,
As noted earlier, the summons in this case is so bare that plaintiffs do not even suggest that it satisfied the statute. Thus, the complaint is the first document to trigger the time allotment, and defendant’s removal petition is therefore timely.
II. MOTION TO DISMISS
On August 15th, 1988, Mildred Glick Friedman jumped from the fifth floor of the Fulton-Hooker building in Bradford, Pennsylvania. Two weeks later she died at Hamot hospital in Erie. Plaintiff, Charles T. Rowe, is the administrator of the decedent’s estate and he alleges that decedent’s sister, Dorothy Marder, played a significant role in Ms. Friedman’s demise. Plaintiff’s first cause of action is a survival action pursuant to 42 Pa.C.S. § 8302, based in intentional infliction of emotional distress. As a second cause of action, Rowe seeks to recover in wrongful death (42 Pa. C.S. § 8301 & Pa.R.Civ.P. § 2202), on behalf of Amy Hope Friedman, decedent’s retarded daughter. Defendant is now seeking to dismiss both claims pursuant to Fed.R.Civ.P. 12(b)(6).
1. Standard for Motions to Dismiss Under Rule 12(b)(6)
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests only the formal sufficiency of the request for relief. In other words, the court determines whether, even if defendant has done all it is accused of doing, the case should nevertheless be dismissed because there is no law against what it has done. Therefore, “factual allegations of the complaint are to be accepted as true and the complaint should be dismissed only if it appears to a certainty that no relief could be granted under any set of facts which could be proved. Reasonable factual inferences will be drawn to aid the pleader.”
D.P. Enterprises v. Bucks County Community College,
2. Factual Background
The essence of the claim is that decedent was somewhat emotionally unstable and that Ms. Marder knew this, and over many years manipulated Ms. Friedman into reliance on Marder’s support and advice to the exclusion of all others’. Then, suddenly, Marder withdrew all support leaving Ms. Friedman broken, despondent and suicidal.
Plaintiff alleges that by exploiting Ms. Friedman’s emotional instability, Marder maneuvered herself into a position of dominance over decedent’s life. Once there, she directed Ms. Friedman to a birth control clinic over her husband’s objection. Marder also told decedent to remove her severely retarded daughter from a specialized institution and care for her at home. Additionally, Marder was co-executrix and co-benefieiary with Ms. Friedman of the estate of their deceased mother Sara. Marder, however, used her dominance over her sister to seize control of the estate and assume the role of sole executrix. Defendant also successfully influenced Ms. Friedman to divorce her husband who had been “the sole provider for herself and [daughter] Amy.” (Complaint at 4). Marder then advised decedent in the divorce proceedings, making them unnecessarily protracted. In fact, as a result of Marder’s influence on Ms. Friedman, the proceedings lasted seven years and ruined Friedman financially. Marder also promised that if
Then, in August 1988, Marder abruptly turned on her sister, ordering that Friedman cease looking to Marder for advice or guidance. Marder went on to say that, contrary to .earlier representations, Ms. Friedman would receive only a small portion of the mother’s estate. Marder then repudiated her commitment to care for Ms. Friedman’s daughter. Marder also instructed decedent not to “take any steps to think about or try to reconcile or conclude her divorce.” (complaint at 6). Marder thus left Ms. Friedman without any support or guidance in this troubling affair, even though it was Marder that instigated the divorce in the first instance. Based on her belief in astrology, defendant told her sister not to seek professional help despite Ms. Friedman’s earlier talk of suicide. Finally, Marder also advised Ms. Friedman to stop taking the medication which was medically prescribed to her. Less than one month later, Ms. Friedman jumped to her death.
3. Legal Discussion
Count one of the complaint is a survival action in which decedent’s estate seeks to recover for injuries suffered by the decedent herself. Rowe claims, on behalf of the estate, that defendant’s actions amounted to an intentional infliction of emotional distress which ultimately lead to Ms. Friedman’s suicide. Count two, wrongful death, claims that by causing decedent’s suicide, defendant also worked a separate harm, in the form of the loss of Ms. Friedman’s support, on the decedent’s daughter. See
Manning v. Capelli,
A. Is Liability for Causing Suicide Barred as a Matter of Law?
Pennsylvania has not decided whether a person may be liable for causing another to commit suicide absent a specific duty to prevent suicide. Since the state’s highest court has never decided the question, it is my duty, as a federal court sitting in diversity, to anticipate the position of the Supreme Court of Pennsylvania were this issue to come before it.
Gruber v. Owens-Illinois Inc.,
The courts which have addressed the issue uniformly split the claims into two familiar categories: cases where death is caused by intentional wrongdoing and those where causation is negligent. See
Tate v. Canonica,
Defendant urges that Pennsylvania law is contrary to the emerging trend. Her sole argument is based on
McPeake v. Cannon,
Even if the intentional tort is established, however, most courts constrain plaintiffs in suicide cases to meet a greater standard of causation than might otherwise be required. Plaintiffs must prove that the intentional tort was a “substantial factor” in causing the suicide.
Tate,
B. Intentional Infliction of Emotional Distress
i. Existence of a Cause of Action
The intentional wrong defendant is alleged to have committed is the intentional infliction of emotional distress as set out in Restatement (Second) of Torts § 46. Defendant counters that Pennsylvania does not recognize any such cause of action, and that even if it did, plaintiff has not made out a claim. Section 46 provides:
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.
Restatement (Second) of Torts § 46 (1965);
Bartanus v. Lis,
Earlier Pennsylvania cases seemed to readily accept section 46 as a legitimate, though undeveloped, cause of action, see e.g.,
Papieves v. Kelly,
Naturally, the Pennsylvania Supreme Court’s pronouncement is law which I must follow. The fact that it has not yet recognized the action, however, only requires that I, once again, predict whether it would do so if the issue were to come before it. The defendant argues that the opinion shows that the Pennsylvania Supreme Court does not approve of section 46 and thus would not adopt it if confronted with the question. At least two decisions of the Superior Court, she argues, have so held. See
Ford v. Isdaner,
If Pennsylvania was truly against recognizing § 46,
Kazatsky
would have been an ideal vehicle with which to say so. Instead, the court chose to delve fairly deeply into the elements of this “unrecognized” tort and then dismiss on the grounds that the elements had not been satisfied. In fact, Justice Larsen felt that the court’s approach, rather than rejecting it, “adopt[ed] section 46 in this jurisdiction, in spite of what the majority states to the contrary.”
Id.
In
Kazatsky
the plaintiffs sued over a dispute regarding the burial site of their children — the cemetery issued a questionable bill and when the Kazatsky’s refused to pay, allowed the plots to descend into disrepair. In such a case, of course, every word is emotionally charged. Kazatsky’s main concern was not to sanction every emotional conflict as a matter for the courts. Rather than eliminate the tort, however, the decision turned on the lack of proof of injury: The plaintiffs presented “no evidence at all except their own unsubstantiated averments, concerning their alleged injuries.”
Id.
Although
Kazatsky
actually turned on proof of injury, much of the opinion offered a generalized criticism of section 46. The opinion took aim at the element of “outrageous conduct,” citing Daniel Givelber’s complaint that the term is subjective and “fails to define the proscribed conduct beyond suggesting that it is very bad in
The Restatement is inconsistent regarding who makes the determination of outrage. The question is for the jury, it says, but only where reasonable people may differ on the point. Restatement (Second) of Torts § 46 comment h. All the definitions, however, deem conduct outrageous only when it is so bad that no reasonable person could say otherwise. See Restatement at comment d (conduct is outrageous when it is “beyond all possible bounds of decency” or when any person would exclaim, “Outrageous!”). Thus, by definition, anything “outrageous” is not of the sort about which reasonable people could possibly differ.
Kazatsky
resolves this ambiguity in favor of the court, and suggests that it should be good and sure the conduct is sufficiently extreme before it places a claim in the hands of the jury. In other words, a court should satisfy itself in the first instance, not merely that there is a reasonable question about outrageousness, but that the conduct almost certainly is outrageous. Only then should the cause go to the jury for what may amount to little more than a veto power over a court’s determination. Cf.
Andrews,
The court’s refusal to reject section 46 while at the same time explicating the evils of the “outrageous” standard, suggests that
Kazatsky
is circumscribing rather than halting the development of the tort. The concern is that “outrageous” no longer makes sufficiently clear the extreme nature of the conduct that is a minimum for liability.
Kazatsky,
therefore, cautions the lower courts to make more of their “gatekeeping” power,
Kazatsky,
ii. Sufficiency of Plaintiffs Claim
Plaintiff cites several cases which suggest that Marder’s actions could be seen by a jury as outrageous. All of the cases, however, were decided before
Kazatsky.
See, e.g.,
Bartanus v. Lis,
The particular facts of the case at bar reveal a sickly woman led astray by a malevolent and misguided sister. The allegations consist solely of various ways defendant’s advice — or lack of it — disturbed the decedent. Since there is no allegation that decedent was severely retarded or unstable, defendant’s bad counsel, even if it was intentional or reckless, did not take advantage of a disabled person in a manner that this court could consider objectively outrageous. The reasoning of Kazatsky suggests that I look at the conduct from the defendant’s point of view. In our society, where people can generally speak to one another as they wish to, merely harboring bad intentions should not make us expect civil liability. Marder’s bad counsel then, even if malicious, was simply not the kind of conduct she would have known exposed her to liability for the intentional infliction of emotional distress.
Because I cannot find that defendant’s conduct was legally outrageous, both counts of plaintiff’s complaint have failed to state a claim upon which relief could be granted.
Notes
.
Nero
found that the summons triggered the statute because the defendant, Amtrak, as a federally chartered and federally owned corporation, “is on notice upon receipt of
any
summons that the action against it is removable.”
Nero,
. Of course, the correspondence in
Moore
and the letter at issue here are not “pleadings.” At a minimum, anything considered a pleading must be something of the type filed with a court. Black's Law Dictionary 1312 (4th Ed.1968).
Wilkerson
is not to the contrary. While that case stated that "any document providing sufficient information" will satisfy the statute, all of the documents that case discussed satisfied the definition of pleading. See also
Mtech Corp. v. FDIC,
Having decided not to inquire into defendant's actual knowledge, I need not determine whether the letter at issue would have provided enough information. While the letter did indicate that there was diversity, defendants claim that since no damage amount was alleged, they could not determine if the jurisdictional amount was satisfied. Defendants at bar, however, probably knew with as great a certainty as did Amtrak in
Nero,
that federal jurisdiction would obtain; they probably knew that in a wrongful death case damages claimed would exceed $50,-000. See also
Blow,
. Plaintiff also alleged that defendant’s conduct was negligent. The allegation was made merely as a conclusory listing of a fact, however, and not as a separate cause of action or even a separate theory of the one cause of action. Nevertheless, this court notes that Pennsylvania might allow recovery where there is a particular duty to prevent suicide and a breach of it.
McPeak,
infra,