Jones v. Nissenbaum, Rudolph and Seidner

• Decision Date: 14 March 1977
• Parties: Geraldine JONES, Trustee Ad Litem and Administratrix, and Carrie Taylor, Appellants, v. NISSENBAUM, RUDOLPH & SEIDNER, et al., Appellees.
• Court: Pennsylvania Superior Court

Page 770

368 A.2d 770

244 Pa.Super. 377

Geraldine JONES, Trustee Ad Litem and Administratrix, and Carrie Taylor, Appellants, v. NISSENBAUM, RUDOLPH & SEIDNER, et al., Appellees.

Superior Court of Pennsylvania.

Argued Sept. 20, 1976.

Decided Dec. 15, 1976.

Petition for Allowance of Appeal Denied March 14, 1977.

H. David Kraut, Philadelphia, with him Ira Silverstein, Philadelphia, for appellants.

Frank H. Griffin, III, Philadelphia, for appellees.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

JACOBS, Judge:

This is an 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., 417 Pa. 7, 208 A.2d 470 (1965); International Union of United Brewery Workers v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965); Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954). However, where a party is so restricted in his ability to amend his complaint that he is virtually put out of court, such a ruling is not interlocutory and is appealable. Hudock v. Donegal Mutual Insurance Co., 438 Pa. 272, 264 A.2d 668 (1970); Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970); Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); International Union of United Brewery Workers v. Watkins, supra. In the instant case, the lower court ruled that the factual allegations raised in appellant's complaint did not constitute the outrageous conduct required for the tort of intentional infliction of mental distress. The appellants were, therefore, put out of court since the record reveals no new facts that could be alleged in order to comply with the lower court's requirement of a more specific pleading. We therefore are empowered to decide the case. And it is equally true that the only facts before this court are the averments of the complaint, and for present purposes the demurrer admits every well-pleaded material fact set forth in the pleading to which it is addressed and the inferences reasonably deducible therefrom but not conclusions of law. Commonwealth by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974); Buchanan v. Brentwood Federal Sav. & Loan Ass'n, 457 Pa. 135, 320 A.2d 117 (1974); Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970).

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 (hereinafter 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, 314 F.Supp. 1091 (E.D.Pa.1970) Aff'd, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972). ¹ On August 2, 1974, appellees Nissenbaum, Rudolph & Seidner, through their law clerk Gary A. Rochestie sent a letter on behalf of their client Allied to the Harveys which stated tht the Harveys' house was to be sold at a September 9, 1974 sheriff's sale and that they should contact their office in order to stay the sale. ² The appellants' complaint also alleged that sometime in the summer of 1974 an unidentified agent of Allied's came to the Harvey's house and in the presence of one of the Harvey's neighbors told him that their house was to be sold and that 'they would have 30 days in order to get their junk out.' The Harveys then visited the law firm of Nissenbaum, Rudolph & Seidner, where they were again informed that their house was to be sold. It is alleged that this course of conduct by the appellees was the proximate cause of the subsequent deaths of the Harveys, in that the severe emotional distress caused them to suffer a stroke and heart failure.

The second transaction involves appellant Carrie Taylor who co-signed a note given to Allied by her son for the purchase of an automobile. Some time later Allied confessed judgment and on April 4, 1969 the car was stolen. It was later recovered and Allied collected $277.00 for damages under the insurance policy. Carrie Taylor made the payments on the loan after her son stopped doing so and continued to do so for a few months after Allied repossessed the automobile. She was sent a letter by the law firm identical to that sent the Harveys ³ and now alleges that this action of the appellees make out an action for intentional infliction of mental distress.

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 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.'

Our Supreme Court, in Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963), recognized the tort of intentional infliction of mental distress as stated in section 46 of the revised first Restatement of Torts and in Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) the court indicated that when presented with the proper case it would adopted the formulation of Section 46 of the Restatement (Second) of Torts. The paucity of Pennsylvania cases in this area reveals that the scope of this tort has yet to be defined in the case law of our state.

'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.

See also Magruder, 'Mental and Emotional Disturbance in the Law of Torts,' 49 Harvard Law Review 1033 (1936). The comments to Section 46 provide a helpful guide in enumerating the elements of this tort. In Comment d to the section it is stated:

'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 facts 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, 36 Ill.App.3d 99, 343 N.E.2d 226 (1976). Viewed in relation to the above standards it is clear that the conduct complained of in this case is not so extreme and outrageous as to support an action for intentional infliction of mental distress. ⁴ The existence of the debtor-creditor relationship will not in and of itself give rise to a cause of action. It is still necessary to show an extreme and outrageous abuse of the collection procedure pursued by the collectors. Restatement (Second) of Torts § 46, Comment e (1965). The letters sent by the appellees to the appellants were in no way beyond the bounds of decency. They merely stated that Allied intended to pursue its remedies for default on the notes given by the Harveys and Carrie Taylor. The language used was in no way capable of or intended to produce any extraordinary mental distress. And the fact that an unidentified representative of Allied told the Harveys in the presence of one of their neighbors that their house was to be sold, and that they had 30 days in which to get their junk out, although insulting and embarrassing, was not extreme or outrageous within the context of Section 46. Plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Restatement (Second) of Torts § 46, Comment d (1965). Nor can each of the appellee's conduct considered as a whole be characterized as within the type of the extreme dunning practices illustrated in cases in which other courts have found collecting creditors liable. See George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915 (1971); LaSalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424 (1934); Barnett v. Collection Service Co., 214 Iowa 1303, 242 N.W. 25 (1932).

Appellants further allege that the conduct was 'extreme and outrageous' in that the appellee's knew that execution proceedings could not be completed absent a hearing 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, ⁵ appellants still have not shown the requisite conduct that is necessary to sustain an action under § 46 of the Restatement (Second) of Torts. These contentions may very well be valid defenses to any execution that would have been sought by the appellees, but they do not elevate the conduct of the appellees in pursuing their legal rights to 'extreme and outrageous conduct.' ⁶

The appellants have failed to plead all the elements of their case by the proper standards, and as such the lower court properly sustained the appellee's preliminary objections, for it was the duty of the court to determine, in the first instance, whether...