Ford v. Isdaner

542 A.2d 137, 374 Pa. Super. 40, 1988 Pa. Super. LEXIS 1636
Supreme Court of Pennsylvania·Decided May 26, 1988·No. 2676·Published·Cited by 40 cases

Opinions

OLSZEWSKI, Judge:

This is an appeal from an order sustaining preliminary objections and dismissing an amended complaint with prejudice. Having reviewed the record, the arguments of coun[42] sel and the case law, we affirm the dismissal of the complaint as to all appellees.

On October 6, 1983, appellants, Irvin and Sylvia Ford, requested injunctive relief against the Valley Forge Towers Condominium Association. Appellants, who were owners of a unit in the complex, alleged that a nuisance was created by a dumpster located outside of the condominium building. The matter was settled, however, and an order to that effect was entered on July 16, 1985.

On November 22,1985, appellants filed suit against appellees—forty-one residents of the condominium building.1 The complaint contained two counts: intentional infliction of emotional distress and civil conspiracy. In response, appellees filed preliminary objections attacking the lack of specific averments in the complaint. Acting upon a stipulation of counsel, the lower court entered an order on November 26, 1986, granting appellants leave to file an amended complaint and requiring them to plead their allegations of fact with specificity.

Appellants filed an amended complaint on December 18, 1986, and a second amended complaint in January of 1987. The second amended complaint2 alleged that sometime after October 6, 1983, each of the appellees intentionally inflicted emotional distress on appellants by refusing to talk to them and by turning their backs on them. It was also alleged that two of the appellees spat in appellants’ direction on two separate occasions, that certain appellees refused to shake appellants’ hands at the funeral of a mutual friend, and that appellants received anonymous telephone calls during late hours. In regard to appellee Ruth B. Isdaner, appellants claimed that on November 16, 1983, the former “demanded to know what right plaintiffs had to sue her for $4,000 and stated that she and other people were going around to people in the condominium telling them not to speak to plaintiffs.” Second amended complaint at para. 71. Likewise, appellees Sandra Lieberman, [43] Sandra Klein and Joan Blatstein allegedly told acquaintances that appellants were suing them and, as a result, they and others should not talk to appellants. It was averred that these acts were undertaken to pressure appellants into dropping their prior suit to abate the nuisance, to punish them for instituting the suit by inflicting emotional distress, and to deprive them of their rights under the law.

In support of the count for civil conspiracy, appellants alleged that “certain of the defendants circulated a petition amongst themselves requesting acquiescence in the scheme of inflicting emotional distree [sic] on plaintiffs, and communicated the scheme and/or the fact of the petition to all the other defendants.” Id. at para. 47. Appellants also alleged that appellees made anonymous telephone calls during the night.

As a result of appellees’ acts, appellants claimed to have suffered emotional distress which, in turn, resulted in numerous conditions including: hypertension, anxiety, hernia, pulmonary interstitial fibrosis, anemia, tremor, fatigue and shortness of breath, duodenal ulcer and mental depression. Appellants allegedly incurred expenses in treating the various conditions and, accordingly, sought both compensatory and punitive damages in excess of $20,000 from each defendant.

In response to the second amended complaint, appellees again filed preliminary objections claiming the allegations in the complaint were still vague. By order dated September 14, 1987, the preliminary objections were sustained. This timely appeal followed.

In this appeal, appellants claim that the complaint contained sufficient allegations to state causes of action in tort for intentional infliction of emotional distress and civil conspiracy and, consequently, that the lower court erred in dismissing the complaint.

In sustaining the preliminary objections, the Honorable Samuel S. Salus eloquently supported his decision in a well-reasoned opinion. Although we are in complete agreement with the lower court that the complaint failed to set [44] forth causes of action in tort, we find it necessary to make additional comments and to clarify several legal points.

Shortly before the decision of the lower court was rendered, our Supreme Court had occasion to examine the tort of intentional infliction of emotional distress. In Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987), the Supreme Court stated that, contrary to the decisions of this Court, the intentional tort as defined in the Restatement (Second) of Torts § 46 had never been adopted in Pennsylvania. Expressing concern that the subjective nature of the tort would render it unwieldy, the Supreme Court requires objective, competent medical proof of emotional distress “if Section 46 of the restatement is to be accepted in this Commonwealth.” Id., 515 Pa. at 197, 527 A.2d at 995.

Kazatsky makes clear that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania. For this reason the complaint in the instant case fails to state a cause of action. See Daughen v. Fox, 372 Pa.Super. 405, 411-412, 539 A.2d 858, 861 (1988) (Cavanaugh, J.) (in light of Kazatsky, the Superior Court is reluctant to accept Section 46 of the restatement).

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Ford v. Isdaner, 542 A.2d 137, 374 Pa. Super. 40, 1988 Pa. Super. LEXIS 1636 (Pa. 1988).

542 A.2d 137 (Ford v. Isdaner) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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