Johnson v. Caparelli

• Decision Date: 13 May 1993
• Citation: 625 A.2d 668,425 Pa.Super. 404
• Parties: Mark JOHNSON, Glenn Johnson and Christine Johnson v. Father Robert CAPARELLI, Saint Vincent DePaul, R. C. Church and Diocese of Scranton. Appeal of Glenn JOHNSON and Christine Johnson.
• Court: Pennsylvania Superior Court

Page 668

625 A.2d 668

425 Pa.Super. 404

Mark JOHNSON, Glenn Johnson and Christine Johnson v. Father Robert CAPARELLI, Saint Vincent DePaul, R. C. Church and Diocese of Scranton Appeal of Glenn JOHNSON and Christine Johnson.

Superior Court of Pennsylvania.

Argued Jan. 27, 1993.

Filed May 13, 1993.

Charles Kannebecker, Dingmans Ferry, for appellants.

Stephen A. McBride, Milford, for appellees.

Before McEWEN, POPOVICH and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from the order of the lower court which granted appellee's preliminary objections in the nature of a demurrer to counts VI and VII of appellants' amended complaint, relating to appellants' claims for intentional infliction of emotional distress, and directed these counts to be stricken. Appellants present the following issues for review: (1) whether the tort of intentional infliction of emotional distress is a cognizable cause of action in Pennsylvania; and (2) whether Pennsylvania recognizes a cause of action for intentional infliction of emotional distress where the tortfeasor's acts were directed at a third-party and the parties alleging such distress were not present when the outrageous acts were committed. For the reasons set forth below, we affirm the order of the lower court.

Before addressing the issues raised by appellants, we will briefly recount the relevant facts of this case. Glenn, Christine and Mark Johnson were parishioners of the Saint Vincent DePaul Roman Catholic Church, which is located within the Diocese of Scranton. ¹ In the course of their worship, the Johnson family became acquainted with appellee, Father Robert Caparelli, a priest at the church. Mark Johnson subsequently served as an altar boy at Saint Vincent DePaul and was also hired by Father Caparelli to perform occasional groundskeeping and maintenance at the church. Father Caparelli developed a close relationship with the Johnson family and secured Mr. and Mrs. Johnson's permission to take Mark to the movies, for food and on short trips. Unbeknownst to Mr. and Mrs. Johnson, Father Caparelli allegedly engaged in various sexual acts with Mark Johnson from approximately September 1985 through June 1986. Mr. and Mrs. Johnson apparently did not learn of these incidents until 1991, at which time they instituted suit against Father Caparelli, Saint Vincent DePaul Church and the Diocese of Scranton. ² Father Caparelli responded by filing preliminary objections to appellant's complaint which, inter alia, challenged the counts pertaining to Glenn and Christine Johnson's claims for intentional infliction of emotional distress. Before the trial court could rule on these objections, appellants filed an amended complaint in March, 1992. Father Caparelli again filed preliminary objections to the counts relating to Mr. and Mrs. Johnson's actions for intentional infliction of emotional distress. On June 12, 1992, the trial court sustained the objections and dismissed these counts from the complaint. ³ This timely appeal followed.

Although not addressed by either of the parties, we must first ascertain whether the order is properly appealable at this stage of the proceedings. Motheral v. Burkhart, 400 Pa.Super. 408, 414, 583 A.2d 1180, 1184 (1990) (en banc ) (providing that because the question of appealability concerns the jurisdiction of the appellate court, we may raise such an issue sua sponte even where the parties have not done so). The order in this case, which dismissed two counts of a multiple count complaint involving multiple plaintiffs and defendants, is interlocutory and unappealable pursuant to the recent amendments to Rule 341 of the Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P., Rule 341(b)(1), 42 Pa.C.S.A. (defining a final order as one which disposes of all claims or of all parties) and the Note thereto (providing that an order dismissing one of several causes of action pleaded in a complaint but leaving pending other causes of action is no longer appealable as of right unless the trial court makes an express determination that an immediate appeal would facilitate resolution of the entire case and expressly enters a final order pursuant to Rule 341(c)). However, the amendments to Rule 341 are only applicable to proceedings which originally commenced in a court after July 6, 1992, the effective date of the rule. See 210 Pa.Code Rule 341 (Order, dated May 6, 1992, by Chief Justice Nix following the text of prior Rule 341 and preceding the text of amended Rule 341). The rule, as amended, is inapplicable here because this action was originally commenced on December 26, 1991 before the effective date of the amendments. We must therefore turn elsewhere for guidance in ascertaining whether the order is appealable.

With regard to this issue, this court has stated:

As a general rule, an order dismissing one but not all counts of a multi-count complaint is interlocutory and not appealable.

However, this court has recognized that if the dismissed count states a cause of action that is separate and distinct from the remaining count, the order dismissing that count is final and appealable; if the dismissed count merely states an alternate theory of recovery, the order dismissing it is interlocutory and not appealable. Thus, a pivotal factor to consider in determining whether an order is final is whether the order has put the aggrieved plaintiff out of court on all theories of recovery asserted against a given defendant for a given loss.

Fink v. Delaware Valley HMO, 417 Pa.Super. 287, 292, 612 A.2d 485, 488 (1992) (citations and quotation marks omitted). Accord Kelly v. Resource Housing of America, Inc., 419 Pa.Super. 393, 395-400, 615 A.2d 423, 424-426 (1992) and Motheral v. Burkhart, 400 Pa.Super. at 415-416, 583 A.2d at 1184-1185. In applying these principles to claims for intentional infliction of emotional distress, this court has found orders dismissing such actions to be final and appealable. See, e.g., Kelly v. Resource Housing of America, Inc., 419 Pa.Super. at 397-400, 615 A.2d at 425-426 (order dismissing a claim for intentional infliction of emotional distress was appealable where it was the only claim asserted by the plaintiff, in her own right, against the defendant) and Fink v. Delaware Valley HMO, 417 Pa.Super. at 292, 612 A.2d at 488 (order dismissing a claim for intentional infliction of emotional distress was appealable because it was a separate cause of action from the remaining count relating to tortious interference with prospective contractual relations). See also Motheral v. Burkhart, 400 Pa.Super. at 423-424, 583 A.2d at 1187-1189 (intentional infliction of emotional distress claim against one defendant was not appealable as it sought recovery for the same loss that was the subject of a remaining count; however, a separate claim for intentional infliction of emotional distress that was asserted against a different defendant was appealable where all of the counts against that defendant had been dismissed).

In this case, we observe that the causes of action contained in counts VI an VII of the complaint form the sole basis of recovery asserted by Glenn and Christine Johnson against appellee. ⁴ Under these circumstances, the order dismissing these counts is final and appealable. See Kelly v. Resource Housing of America, Inc., Fink v. Delaware Valley HMO and Motheral v. Burkhart, supra. We will therefore proceed to consider the merits of this appeal.

The scope of review applicable to a grant of preliminary objections in the nature of a demurrer has been enunciated by our Supreme Court as follows:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 526 Pa. 541, 547, 587 A.2d 1346, 1349 (1991), cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991) (citations omitted). Accord Kelly v. Resource Housing of America, Inc., 419 Pa.Super. at 399-400, 615 A.2d at 426 (1992), quoting Abadie v. Riddle Memorial Hospital, 404 Pa.Super. 8, 10-11, 589 A.2d 1143, 1144 (1991); Love v. Cramer, 414 Pa.Super. 231, 233, 606 A.2d 1175, 1177 (1992); Motheral v. Burkhart, 400 Pa.Super. at 424-425, 583 A.2d at 1189; Field v. Philadelphia Electric Company, 388 Pa.Super. 400, 405, 565 A.2d 1170, 1172 (1989). We will evaluate appellants' claims and the decision of the lower court in accordance with this standard. Because the analysis of the questions presented by appellants is intertwined, these issues will be discussed together.

Appellants seek to hold appellee liable for the tort of intentional infliction of emotional distress. This tort, as defined in § 46 of the Restatement of Torts (Second) (1965), has been acknowledged by the Pennsylvania appellate courts, but has not been specifically adopted by our Supreme Court. See, e.g., Kazatsky v. King David Memorial Park, 515 Pa. 183, 185, 527 A.2d 988, 988 (1987); Hackney v. Woodring, 424 Pa.Super. 96, ---- - ----, 622 A.2d 286, 288-289 (1993) (dissenting opinion by Tamilia, J.); Kelly v. Resource Housing of America, Inc., 419 Pa.Super. at 399-400, 615 A.2d at 426; Strain v. Ferroni, 405 Pa.Super. 349, 359, 592 A.2d 698, 703 (1991); Baker v. Morjon, Inc., 393 Pa.Super. 409, 413-414, 574 A.2d 676, 678 (1990); Ford v. Isdaner, 374 Pa.Super. 40, 44, 542 A.2d 137, 139 (1988), allocatur denied, 520 Pa. 617, 554 A.2d 509 (1988); Daughen v. Fox, 372 Pa.Super. 405, 411-412, 539 A.2d 858, 861 (1988), allocatur denied, 520 Pa. 605, 553 A.2d 967 (1988). But see Field v. Philadelphia Electric Company, 388 Pa.Super. at 429, 565 A.2d at 1184 (distinguishing Kazatsky on a procedural basis and...