HomeMy WebLinkAbout2011 – 5439JANE TITZELL,
Plaintiff
u
RIDGE COURT HOMEOWNERS
ASSOCIATION,
Defendant
FRANK PETROCCITTO,
Plaintiff
u
RIDGE COURT HOMEOWNERS
ASSOCIATION,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 2011 — 5439 CIVIL TERM
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 2011 — 5436 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
TO PLAINTIFFS' COMPLAINTS
BEFORE OLER, GUIDO and MASLAND, JJ.
OPINION and ORDER OF COURT
Oler, J., November 29, 2011.
In these consolidated civil cases' involving appeals by the common defendant
from decisions of a magisterial district judge on claims filed by two pro se plaintiffs
against their homeowners association, the Plaintiff -Homeowners have sued the
' Order of Court, dated August 22, 2011 (Masland, J.).
2 The two Plaintiffs in this case filed nearly identical complaints against the Defendant in this court
pursuant Pennsylvania Rule of Civil Procedure for Magisterial District Judges No. 1001(7). Complaint,
filed July 21, 2011. Petroccitto v. Ridge Court Homeowners Association was docketed at 2011-5436 Civil
Term, and Titzell v. Ridge Court Homeowners Association was docketed at 2011 — 5439 Civil Term. On
the following day, each plaintiff filed an identical "Motion To Consolidate" at his and her respective
docket, which requested as follows:
I would plead at this time, since you have before you, case 411-5436 and case 411-5439,
that you consolidate these cases as they are identical in nature and pleadings are exact.
We both have a financial and physical interest in both properties.
To that end, Ms. Titzell is a 68 -year-old senior citizen who has absolutely no knowledge
as to how to defend herself nor does she have the resources to do so. Therefore, in the
Defendant -Homeowners Association for breach of contract,' "harassment, ,4 and
"malice .,,5 It is alleged, inter alia, that Defendant did not fulfill certain obligations under
"written agreements, ,6 which resulted in certain costs incurred by the Plaintiffs
associated with mitigating the effects of the Defendant's breaches.
For disposition at this time are Preliminary Objections in the form of demurrers'
filed by Defendant to certain counts in Plaintiffs' respective complaints.$ Defendant's
Preliminary Objections were answered by Plaintiffs on August 17, 2011.9 Oral argument
was held on the Preliminary Objections on October 7, 2011. For the reasons stated in this
opinion, the Preliminary Objections will be sustained, and Plaintiffs' second and third
counts will be dismissed.
BACKGROUND
The facts alleged in Plaintiffs' complaints may be summarized as follows:
Plaintiffs are adult individuals who reside in a recorded residential subdivision10 known
interest of time and justice, I assert this motion to combine the aforementioned cases and
ask that you honor my motion. Thank you for your consideration.
[Titzell] Motion to Consolidate, filed July 22, 2011 (No. 11-5439); [Petroccitto] Motion to Consolidate,
filed July 22, 2011 (No. 11-5436). On August 22, 2011, Plaintiffs' motions were granted. See Order of
Court, dated August 22, 2011 (Masland, J.).
s [Titzell] Complaint, Count 1: Breach of Contract, ¶¶24-33, filed July 21, 2011; [Petroccitto] Complaint,
Count 1: Breach of Contract, ¶¶24-33, filed July 21, 2011.
4 [Titzell] Complaint, Count 2: Harassment, ¶¶34-38, filed July 21, 2011; [Petroccitto] Complaint, Count
2: Harassment, ¶¶34-38, filed July 21, 2011.
s [Titzell] Complaint, Count 3: Malice, ¶¶39-40, filed July 21, 2011; [Petroccitto] Complaint, Count 3:
Malice, ¶¶39-40, filed July 21, 2011.
6 See [Titzell] Complaint, ¶25, filed July 21, 2011; [Petroccitto] Complaint, ¶25, filed July 21, 2011.
Preliminary Objections to Plaintiffs Complaint, filed August 12, 2011.
s The Complaints in this case were filed pursuant to an appeal by Defendant from each of the two
judgments in Plaintiffs' favor at the Magisterial District Court, pursuant to Pennsylvania Rule of Civil
Procedure for Magisterial District Judges No. 1001(7).
9 [Titzell] Answer to Preliminary Objections to Plaintiffs Complaint, filed August 17, 2011; [Petroccitto]
Answer to Preliminary Objections to Plaintiffs Complaint, filed August 17, 2011.
10 Exhibit J, Declaration, attached to [Titzell] Complaint, filed July 21, 2011; Exhibit J, Declaration,
attached to [Petroccitto] Complaint, filed July 21, 2011 (hereinafter referred to collectively as "Exhibit J,
Declaration, attached to Complaints, filed July 21, 2011"). The residences in which Plaintiffs live are
built upon building lots, the subdivision of which had been approved by the Township Supervisors and
2
as Ridge Court Townhouses." Plaintiffs' townhouses are situated on a tract of land in
Upper Allen Township, Cumberland County, Pennsylvania, subject to certain
"restrictions, covenants and conditions" 12 that were set forth in a Declaration that had
been similarly recorded in the Office of the Cumberland County Recorder of Deeds. 13
These Declarations were set forth by Defendant, Ridge Court Home Owners Association,
a non-profit corporation with a registered office in Mechanicsburg, Cumberland County,
Pennsylvania. 14 As provided by the Articles of Incorporation, the purpose of the
Association was, inter alia, as follows:
(1) To provide for maintenance, preservation, and architectural control of the residence
lots and common area within that certain tract of property described as [the Ridge
Court Townhouses], which plan was approved by the Township Supervisors and
recorded in the Cumberland County Recorder's Office in Plan Book 44, Page 89.
b. To Perform all of the duties and obligations of the Association as set
forth in that [Declaration], applicable to the property and recorded or
to be recorded in the Office of the Recorder of Deeds for
Cumberland County, Pennsylvania.
C. To Fix, levy, collect, and to enforce payment by any lawful means,
all charges or assessments pursuant to the terms of the Declaration;
to pay all expenses in connection therewith and all office and other
expenses incident to the conduct of the business of the Association,
including all licenses, taxes or governmental charges levied or
imposed against the property of the Association;"
The Articles of Incorporation set forth the requirements and eligibility for membership as
follows:
recorded in the Cumberland County Recorder's Office, at Plan Book 44, Page 89, according to the
complaints. See [Titzell] Complaint, filed July 21, 2011; [Petroccitto] Complaint, filed July 21, 2011.
" Exhibit J, Declaration, attached to Complaints, filed July 21, 2011.
12 Exhibit J, Declaration, attached to Complaints, filed July 21, 2011.
" Exhibit J, Declaration, attached to Complaints, filed July 21, 2011.
14 See Exhibit G, Articles of Incorporation, Art I, attached to [Titzell] Complaint, filed July 21, 2011;
Exhibit G, Articles of Incorporation, Art I, attached to [Petroccitto] Complaint, filed July 21, 2011
(hereinafter referred to collectively as "Exhibit G, Articles of Incorporation, attached to Complaints, filed
July 21, 2011").
is Exhibit G, Articles of Incorporation, attached to Complaints, filed July 21, 2011.
3
Membership. Every person or entity who is a record owner of a fee or undivided fee
interest in any Lot which is subject by covenants of record to assessment by the
Association . . . shall be a member of the Association. . . . Membership shall be
appurtenant to and may not be separated from ownership of any Lot which is subject to
assessment by the Association. 16
The Association's bylaws authorized the Association to levy "assessments," which each
member was obligated to pay. 17 The relevant provision of the bylaws related to the
assessments provided as follows:
ARTICLE XI
ASSESSMENTS
11.00 As more fully provided in the Declaration, each member is obligated to the
Association annual and special assessments which are secured by a continuing lien on the
property against which the assessment is made. Any assessments which are not paid
within thirty (30) days after the due date, the assessment shall bear interest from the date
of delinquency at the current rate of six (6) month certificates of deposit from that bank
which is the depository for the Association's funds and the Association may bring an
action at law against the owner personally obligated to pay the same or foreclose the lien
against the property, and interest, costs, and responsible attorney's fees of any such action
shall be added to the amount of such assessment. No Owner may waive or otherwise
escape liability for the assessments provided for herein by non-use of the Common Area
or abandonment of his or her lot.18
By virtue of their ownership interests in their residences situated upon lots subject to the
Declarations of Covenants, Conditions and Restrictions, as pled in their complaints,19
Plaintiffs were, it would appear, Class A Members.20 The Declaration further outlined
16 Exhibit G, Articles of Incorporation, attached to Complaints, filed July 21, 2011.
17 Exhibit D, Bylaws, Art I, attached to [Titzell] Complaint, filed July 21, 2011; Exhibit D, Bylaws, Art I,
attached to [Petroccitto] Complaint, filed July 21, 2011 (hereinafter referred to collectively as "Exhibit D,
Bylaws, attached to Complaints, filed July 21, 2011").
" Exhibit D, Bylaws, Art. XII, attached to Complaints, filed July 21, 2011
19 According to Plaintiffs' Complaints, the Plaintiffs and Defendant were bound by various written
agreements, specifically the Declaration. [Titzell] Complaint, ¶25, filed July 21, 2011; [Petroccitto]
Complaint, ¶25, filed July 21, 2011.
20 Exhibit G, Articles of Incorporation, Art. VI (Class A Members), attached to Complaints, filed July 21,
2011; Exhibit J, Declaration, ¶7, attached to Complaints, filed July 21, 2011.
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various promises made between the Association and its members .21 The Declaration set
forth the following relationship, pertinent to Plaintiffs' complaints:
[Defendant] shall be responsible to maintain all open spaces shown on the said plan and
may also cut the lawns of all lots, or all developed lots, on the said plan. No owners shall
plant or alter the yards without the written permission of [Defendant]. Further, the
association shall have the authority to assess each lot, on a pro -rata basis reasonable
assessment for such services, which amount will become a lien on the lot so assessed.zz
The Declaration further provided that a violation of one or more of the covenants
contained in the Declaration would be actionable "at law or in equity" in a suit brought
by the Association or a Member, as defined by the Articles of Incorporation.23
A document entitled "Rules and Regulations of Ridge Court," intended to
supplement the Bylaws and Declaration ,24 provided, in pertinent part, as follows:
7) LAWN CARE
Basic lawn care is provided by the Ridge Court Homeowners Association and is funded
by the monthly dues assessed each homeowner. It is the purpose of this Rule and
Regulation to maintain conformity within the community, not to restrict the homeowner
from beautifying his or her property. There is specific mention of the planting of shrubs
and trees in the Declaration in items number 5 and 7. The following is intended as an
addition and in some cases a clarification of the Declaration.
a) It is the responsibility of every homeowner to keep his property free from
weeds.
b) As stated in the Declaration, "No owner shall plant or alter the yards
without the written permission of the Ridge Court Homeowners
Association." Any request should be forwarded to the Architectural
Committee, which committee has the charter and power to approve such
changes regarding the outside property.
c) The removal or replacement of dead trees and shrubbery is the
responsibility of the individual homeowner. If this is not done within a
reasonable time frame, the Association will arrange for it to be done at
the homeowner's expense.
21 Exhibit J, Declaration, attached to Complaints, filed July 21, 2011.
zz Exhibit J, Declaration, ¶7, attached to Complaints, filed July 21, 2011.
23 Exhibit J, Declaration, ¶8, attached to Complaints, filed July 21, 2011.
24 Exhibit C, Rules and Regulations of Ridge Court, "Purpose," attached to [Titzell] Complaint, filed July
21, 2011; Exhibit C, Rules and Regulations of Ridge Court, "Purpose," attached to [Petroccitto]
Complaint, filed July 21, 2011 (hereinafter referred to collectively as "Exhibit C, Rules and Regulations
of Ridge Court, attached to Complaints, filed July 21, 2011").
5
Additionally, the document's provision entitled "Enforcement" indicated that the
Association's Board of Directors was authorized to initiate lawsuits in "District Courts"
against unit owners and tenants for violations of the regulations.25
To their complaints, Plaintiffs have attached a document entitled "Lawn Care
Release Form," which they allege was sent to every homeowner, providing as follows:
1. I intend to personally care for—or arrange the care for—the landscaping
requirements of my property.
2. I wish to waive my right to have the service contracted by the Ridge Court
Homeowners Association (RCHA) to provide lawn care for my property for the year
2010.
3. I understand that this waiver can be terminated in writing at any time during the
year s mowing season.
4. I understand by waiving RCHA lawn services I am still a member of the RCHA and
accept the responsibility to pay assessments approved by the Association. Dues are
currently $87.00 per quarter.
5. This form must be completed and returned so the RCHA lawn services is aware
which properties do not want this service. The lawn service will be instructed to mow
all units unless this written release is received .26
Neither Plaintiff signed the Lawn Care Release Form.'
On April 5, 2011, Defendant filed civil complaints against Jane Titzell and Frank
Petroccitto, individually, to recover "unpaid homeowner dues," in the office of
Magisterial District Judge Mark W. Martin.28 In response, Plaintiffs each filed a
"countersuit" against Defendant, in which Plaintiff Petroccitto requested judgment in the
amount of $2,000.00 based upon a claim of "Prejudicial treatment, misbilling, No
Services Rendered — Violation of Bylaws, ,29 and in which Plaintiff Titzell requested
judgment in the amount of $500.00 based upon a claim of "Prejudicial Treatment, No
2s Exhibit C, Rules and Regulations of Ridge Court, "Enforcement," attached to Complaints, filed July 21,
2011.
26 Exhibit E, Lawn Care Release Form, attached to [Titzell] Complaint, filed July 21, 2011; Exhibit E,
Lawn Care Release Form, attached to [Petroccitto] Complaint, filed July 21, 2011 (hereinafter referred to
collectively as "Exhibit E, Lawn Care Release Form, attached to Complaints, filed July 21, 2011").
27 [Titzell] Complaint, ¶14, filed July 21, 2011; [Petroccitto] Complaint, ¶14, filed July 21, 2011.
28 Exhibit D-2, attached to [Titzell] Complaint, filed July 21, 2011: See Notice of Appeal from Magisterial
District Judge Judgment, No. 11-5436, filed July 5, 2011.
29 Civil Complaint, Petroccitto v. Ridge Court Home Assoc., MDJ Dock. CV 193-11, filed May 16, 2011.
Services RenderedViolation of Bylaws."30 As evident from the Notice of Judgment
regarding Plaintiff Titzell, dated June 8, 2011, Magisterial District Judge Martin found in
favor of Defendant and against Plaintiff Titzell in the amount of $372.25,31 and for
Plaintiff Titzell and against Defendant in the amount of $358.50.32 Similarly, as evident
from the Notice of Judgment regarding Plaintiff Petroccitto, dated June 7, 2011,
Magisterial District Judge Martin found in favor of Defendant and against Plaintiff
Petroccitto in the amount of $352.60,33 and for Plaintiff Petroccitto and against Defendant
in the amount of $748.50.34
On July 7, 2011, Defendant filed appeals in the Cumberland County Court of
Common Pleas from the judgments that had been entered against it, and praeciped
Plaintiffs to file complaints pursuant to the Rules of Civil Procedure for Magisterial
District Judges .35 Pursuant to Rule of Civil Procedure for Magisterial District Judges
1004, Plaintiffs thereafter filed complaints in this court.
A fair reading of Plaintiffs' complaints demonstrates that, in support of their
claims for breach of contract, Plaintiffs have alleged that they did not sign the Lawn Care
Release Form, and that, as a consequence, Paragraph 7 of the Rules and Regulations of
Ridge Court was in effect at the time of the alleged breach, requiring Defendant to
provide, inter alia, "[b]asic lawn care ,,36 Furthermore, Plaintiffs have alleged that
Defendant failed to comply with this obligation to provide such services, the result of
so Civil Complaint, Titzell v. Ridge Court Home Assoc., MDJ Dock. CV 192-11, filed May 16, 2011.
31 Notice of Appeal from Magisterial District Judge Judgment, MDJ Dock. 4 130-2011, Cumb. Co. Dock.
No. 11-5439, filed July 5, 2011.
sz Notice of Appeal from Magisterial District Judge Judgment, MDJ Dock. 4 192-2011, Cumb. Co. Dock.
No. 11-5436, filed July 5, 2011.
" Notice of Appeal from Magisterial District Judge Judgment, MDJ Dock. 4 131-2011, Cumb. Co. Dock.
No. 11-5436, filed July 5, 2011.
34 Notice of Appeal from Magisterial District Judge Judgment, MDJ Dock. 4 193-2011, Cumb. Co. Dock.
No. 11-5436, filed July 5, 2011.
" See Notice of Appeal from Magisterial District Judge Judgment, 2011-5439, filed July 5, 2011; Notice
of Appeal from Magisterial District Judge Judgment, 2011-5436, filed July 5, 2011
36 Exhibit C, Rules and Regulations of Ridge Court, attached to Complaints, filed July 21, 2011
7
which was that the Plaintiffs' respective lawns became "over 28 inches in height."37 After
multiple unsuccessful attempts to have the situation remedied, Plaintiffs engaged in "self-
help," whereby they "began caring for [their] propert[ies] and that of the entire block as
no one on [their] side of the street was being cared for. ,38 The resulting damages
allegedly incurred by Plaintiffs were in the form of "many financial, and physical
hardships. ,39
The balance of the factual sections of the complaints contains various allegations
of possible breaches of the Association's Bylaws and Declarations, in the form of certain
directors' failures to provide requested services to which Plaintiffs were allegedly
entitled, and breaches of certain Declarations by other members of the Association, in the
form of (1) the construction of a fence, (2) an officer's conduct of running a business
from her home, (3) multiple violations of rules regarding placement of trash, (4) lack of
driveway maintenance, and (5) various obstructions.40 Additionally, the complaints
contain numerous allegations of harassing conduct by certain directors of the Association
that were directed against Plaintiffs.
In support of their second and third counts, which were entitled "Harassment" and
"Malice," respectively, Plaintiffs allege that a former officer of the Association had
directed "obscene gestures" toward Plaintiffs. 4 1 Additionally, Plaintiffs have averred that
certain unidentified individuals, presumably associated with Defendant, had complained
about them to unidentified township officials.42 Lastly, in support of their claim for
"malice," Plaintiffs allege that the "sole purpose" of Defendant's appeal to this court
from the Magisterial District Judge's judgments in favor of Plaintiffs was to harass,43 and
37 [Titzell] Complaint, ¶6, filed July 21, 2011; [Petroccitto] Complaint, ¶6, filed July 21, 2011; Exhibit B,
attached to [Petroccitto] Complaint, filed July 21, 2011.
" [Titzell] Complaint, ¶9, filed July 21, 2011; [Petroccitto] Complaint, ¶9, filed July 21, 2011.
39 [Titzell] Complaint, ¶27, filed July 21, 2011; [Petroccitto] Complaint, ¶27, filed July 21, 2011.
40 [Titzell] Complaint, ¶¶16-20, filed July 21, 2011; [Petroccitto] Complaint, ¶¶16-20, filed July 21, 2011.
41 [Titzell] Complaint, ¶34, filed July 21, 2011; [Petroccitto] Complaint, ¶34, filed July 21, 2011.
42 [Titzell] Complaint, ¶36, filed July 21, 2011; [Petroccitto] Complaint, ¶36, filed July 21, 2011.
43 [Titzell] Complaint, ¶38, filed July 21, 2011; [Petroccitto] Complaint, ¶38, filed July 21, 2011.
3
that the appeal had "absolutely no foundation or merit on it's [sic] face except to be
malicious.»44
Defendant's Preliminary Objections are in the form of demurrers to both Count 2
and Count 3 of each complaint, contending that neither Harassment nor Malice is a
cognizable cause of action in Pennsylvania .45 Although they filed answers opposing
Defendant's Preliminary Objections,46 at the October 7, 2011 argument, as well as in
their joint brief submitted to the court pursuant to Cumberland County Rule of Procedure
1028(c)(5), Plaintiffs conceded Defendant's position that Pennsylvania civil law does not
recognize a cause of action for either Harassment or Malice. However, rather than
conceding Defendant's entitlement to a dismissal of those two counts, Plaintiffs requested
that that court permit them to amend their complaints to add claims for "assault and
intentional [in]fliction of emotional distress," which are "punitive and are independent
torts and recognized in [Pennsylvania] .,,47
DISCUSSION
Demurrers, in general. A preliminary objection to a complaint in the nature of a
demurrer is appropriate only where the complaint is legally insufficient to sustain a cause
of action recognized by law. Pa. R.C.P. No. 1028(a)(4). A preliminary objection in the
nature of a demurrer requires the court to resolve the issues solely on the basis of the
challenged pleading; in general, no testimony or other evidence outside of that pleading
may be considered to dispose of the legal issues presented by the demurrer. Cooper v.
Church of St. Benedict, 2008 PA Super 171, ¶2, 954 A.2d 1216, 1218 (2008) (citing Hess
v. Fox Rothschild, LLP, 2007 PA Super 133, ¶18, 925 A.2d 798, 805, appeal denied, 596
Pa. 733, 945 A.2d 171 (2008)).
44 [Titzell] Complaint, ¶39, filed July 21, 2011; [Petroccitto] Complaint, ¶39, filed July 21, 2011.
41 Preliminary Objections to Plaintiffs Complaint, filed August 12, 2011.
46 [Titzell] Answer to Preliminary Objections to Plaintiffs' Complaint, filed August 17, 2011;
[Petroccitto] Answer to Preliminary Objections to Plaintiffs' Complaint, filed August 17, 2011.
47 [Plaintiffs'] Brief Apposed [sic] to Defendant, Ridge Court Homeowners Association Preliminary
Objections to Plaintiffs Complaint, submitted September 30, 2011.
0
When considering a demurrer to a complaint, a court must accept all material facts
set forth in the complaint, as well as all inferences reasonably deducible therefrom, as
admitted as true and decide whether, based on the facts averred, recovery is impossible as
a matter of law. Wagner v. Waitlevertch, 2001 PA Super 100, ¶6, 774 A.2d 1247, 1250
(citing Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616 (Pa. Super. 1999), appeal
denied, 561 Pa. 700, 751 A.2d 193 (2000)). The demurrer should be sustained only if,
after the averments of the complaint are assumed true, the plaintiff has failed to assert a
legally cognizable cause of action and, therefore, cannot prevail. Lerner v. Lerner, 2008
PA Super 183, ¶11, 954 A.2d 1229, 1234 (citing Kramer v. Dunn, 2000 PA Super 101,
¶18, 749 A.2d 984, 990).
Harassment and Malice as causes of action. Pennsylvania has declined to
recognize a cause of action in tort for harassment. DeAngelo v. Fortney, 357 Pa. Super.
127, 132, 515 A.2d 594, 596 (1986); see Waye v. First Citizen's Nat. Bank, 846 F. Supp.
310 (M.D. Pa. 1994), aff'd, 31 F.3d 1175 (3d. Cir. 1994). While Pennsylvania criminal
law does provide for a crime of harassment, this jurisdiction does not make cognizable a
civil claim for harassment. See DeAngelo v. Fortney, 357 Pa. Super. 127, 515 A.2d 594
(1986).
This court has not been able to find, nor do Plaintiffs direct the court's attention to,
Pennsylvania jurisprudence recognizing an independent cause of action for a tort of
malice. As defined by Black's Law Dictionary (9th ed. 2009), malice is "[t]he intent,
without justification or excuse, to commit a wrongful act." BLACK'S LAW DICTIONARY
(9th ed. 2009). While a requisite mental state for several causes of action, malice alone
does not constitute an independent tort. While this court assumes that all of Plaintiffs'
averments in their complaints are true for purposes of addressing Defendant's demurrers,
Plaintiffs second and third counts fail to state a viable cause of action upon which relief
can be granted in this Commonwealth. Plaintiffs' second and third counts must therefore
be dismissed.
Recasting Plaintiffs' claims as cognizable causes of action. In their joint brief, and
as argued at the October 7, 2011 argument, Plaintiffs maintain that the defects forming a
10
basis for Defendant's Preliminary Objections to the second and third counts of their
complaints were curable by amendment. Pennsylvania Rule of Civil Procedure 1033
provides that "[a] party, either by filed consent of the adverse party or by leave of court,
may at any time ... amend his pleading." Pa. R.C.P. No. 1033. It is well established that,
when a complaint, or portion thereof, is subject to a demurrer, the court shall grant a
plaintiff leave to amend, provided that the deficiencies may be reasonably cured through
amendment. See Otto v. American Mut. Ins. Co., 482 Pa. 202, 205, 393 A.2d 450, 451
(1978). On the other hand, there are, of course, cases where it is clear that an amendment
would not resolve the deficiency, and where leave to amend the pleading would result in
a futile gesture. See, e.g., Behrend v. Yellow Cab Co., 441 Pa. 105, 271 A.2d 241 (1970);
Geary v. United States Steel Corp., 456 Pa. 171, 180 n. 11, 319 A.2d 174, 178 n. 11
(1974); Nationwide Mut. Ins. Co. v. Barbera, 443 Pa. 93, 277 A.2d 821 (1971). In
Behrend v. Yellow Cab Co., the Pennsylvania Supreme Court stated that
[a]mendment of a complaint should be freely allowed, and a claim ought not [to] be
jeopardized by minor defects in pleading. . . . But liberality of pleading does not
encompass a duty in the courts to allow successive amendments when the initial pleading
indicates that the claim asserted cannot be established.
441 Pa. 105, 110, 271 A.2d 241, 243 (1970).
This court is unable to agree with Plaintiffs' position that their complaints may be
amended to "read appropriately" to assert claims for "assault and intentional [in]fliction
of emotional distress." In this Commonwealth, the tort of assault occurs when an actor
acts with an intention to cause an "imminent apprehension of a harmful or offensive
bodily contact." Sides v. Cleland, 436 Pa. Super. 618, 626, 648 A.2d 793, 796 (1994)
(citing RESTATEMENT (SECOND) OF TORTS § 21 (1965)). Assuming as true all facts pled
in Plaintiffs' complaints, the complaints fail to set forth the foundation for a tortious
assault, inasmuch as there are no allegations tending to suggest that either Plaintiff
experienced an "imminent apprehension of a harmful or offensive bodily contact," or was
threatened by the same.
Similarly, this court is unable to find merit in Plaintiffs' contention that the factual
foundation set forth in their complaints may be recast as the tort of "intentional
11
[in]fliction of emotional distress." In Pennsylvania, the tort of intentional infliction of
emotional distress is an actionable wrong for conduct that is characterized as "extreme
and outrageous." Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa. Super. 377, 368 A.2d
770 (1976) (citing RESTATEMENT (SECOND) OF TORTS §46 (1965)). Comment (d) of the
Restatement (Second) of Torts §46 describes the type of conduct which meets the
requisites for liability:
It has not been enough that the defendant has acted with an intent which is tortious or
even criminal, or that he has intended to inflict emotional distress, or even that his
conduct has been characterized by "malice," or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort. 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!"
RESTATEMENT (SECOND) OF TORTS § 46, cmt. d (1965). As such, intentional infliction of
emotional distress has been understood as involving four elements: (1) the conduct must
be extreme and outrageous; (2) it must be intentional or reckless; (3) it must cause
emotional distress; and (4) the distress caused must be severe. See Papieves v. Lawrence,
437 Pa. 373, 263 A.2d 118 (1970); Kazatsky v. Kind David Mem'l Park, Inc., 515 Pa.
183, 527 A.2d 988, (1987); Field v. Phila. Elec. Co., 388 Pa. Super. 400, 565 A.2d 1170
(1989); Strickland v. Univ. of Scranton, 700 A.2d 979 (Pa. Super. 1997); Sharrow v.
Bailey, 910 F. Supp. 187, 194 (M.D. Pa. 1995) (applying Pennsylvania law). Courts
addressing the issue have consistently held that liability "does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities." Kazatsky v. King
David Mem'l Park, Inc., 515 Pa. 183, 191, 527 A.2d 988, 995 (citing RESTATEMENT
(SECOND) OF TORTS § 46, cmt. d (1965)). While the mistreatment of another may
certainly be rude and objectionable behavior, such conduct does not necessarily equate
with the extreme and outrageous conduct necessary for an action for intentional infliction
of emotional distress. See Thompson v. AT&T Corp. 371 F. Supp. 2d 661, 686-87 (W.D.
Pa. 2005).
12
Here, Plaintiffs' complaints fail to set forth allegations sufficient to support a
contention either that Defendant committed conduct rising to the level of "extreme and
outrageous" activity or that such conduct caused them severe emotional distress. With
regard to "extreme and outrageous" activity, it may be noted that the conduct cited by
Plaintiffs included such things as (1) the construction of a "concrete slab and a Gazebo"
upon Plaintiffs' property without permission '48 (2) complaints made about Plaintiffs by
certain unidentified individuals, presumably associated with Defendant, to certain
unidentified township officials,49 (3) "obscene gestures" directed toward Plaintiffs by an
officer of the association '50 and (4) the filing of an appeal from a decision in favor of
Plaintiffs. 5 1 None of these constitute extreme and outrageous activity within the meaning
of the term as it relates to the tort of intentional infliction of emotional distress.
With respect to "severe emotional distress," Plaintiffs' complaints are devoid of
any allegation that the conduct of Defendant caused them such a level of anxiety. In brief,
there "is no occasion for the law to intervene in every case where someone's feelings are
hurt." Kazatsky v. Kind David Mem'l Park, Inc., 515 Pa. 183, 191, 527 A.2d 988, 992
(1987) (citing RESTATEMENT (SECOND) OF TORTS § 46, cmt. d (1965)).
For the reasons set forth in this opinion, the following order will be entered:
48 [Titzell] Complaint, ¶22, filed July 21, 2011; [Petroccitto] Complaint, ¶22, filed July 21, 2011.
49 [Titzell] Complaint, ¶36, filed July 21, 2011; [Petroccitto] Complaint, ¶36, filed July 21, 2011.
so [Titzell] Complaint, ¶34, filed July 21, 2011; [Petroccitto] Complaint, ¶34, filed July 21, 2011.
" [Titzell] Complaint, ¶¶39-40, filed July 21, 2011; [Petroccitto] Complaint, ¶¶39-40, filed July 21, 2011.
13
ORDER OF COURT
AND NOW, this 291h day of November, 2011, upon consideration of Defendant's
Preliminary Objections to Plaintiffs' Complaints, following oral argument held on
October 7, 2011, and for the reasons stated in the accompanying opinion, Defendant's
Preliminary Objections are sustained to the extent that the second and third counts of
Plaintiffs' Complaints are dismissed.
DEFENDANT is afforded a period of 20 days from the date of this order to file
answers to the balance of the complaints.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Jane Titzell
1104 Ridge Road
Mechanicsburg, PA 17055
Plaintiff, pro se
Frank Petroccitto
1102 Ridge Road
Mechanicsburg, PA 17055
Plaintiff, pro se
Mark C. Duffie, Esq.
Johnson, Duffie, Stewart & Weidner
301 Market Street
P.O. Box 109
Lemoyne, PA 17043
Attorney for Defendant
JANE TITZELL,
Plaintiff
u
RIDGE COURT HOMEOWNERS
ASSOCIATION,
Defendant
FRANK PETROCCITTO,
Plaintiff
u
RIDGE COURT HOMEOWNERS
ASSOCIATION,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 2011 — 5439 CIVIL TERM
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 2011 — 5436 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
TO PLAINTIFFS' COMPLAINTS
BEFORE OLER, GUIDO and MASLAND, JJ.
ORDER OF COURT
AND NOW, this 29th day of November, 2011, upon consideration of Defendant's
Preliminary Objections to Plaintiffs' Complaints, following oral argument held on
October 7, 2011, and for the reasons stated in the accompanying opinion, Defendant's
Preliminary Objections are sustained to the extent that the second and third counts of
Plaintiffs' Complaints are dismissed.
DEFENDANT is afforded a period of 20 days from the date of this order to file
answers to the balance of the complaints.
BY THE COURT,
J. Wesley Oler, Jr., J.
Jane Titzell
1104 Ridge Road
Mechanicsburg, PA 17055
Plaintiff, pro se
Frank Petroccitto
1102 Ridge Road
Mechanicsburg, PA 17055
Plaintiff, pro se
Mark C. Duffie, Esq.
Johnson, Duffie, Stewart & Weidner
301 Market Street
P.O. Box 109
Lemoyne, PA 17043
Attorney for Defendant
2