J-A17025-16


                                 2016 PA Super 194

DWAYNE GRAY                                           IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

ALLEN HUNTZINGER AND CENTRAL
PARKING SYSTEMS, INC.

                            Appellants                      No. 1882 EDA 2015


                  Appeal from the Judgment Entered May 20, 2015
                In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): April Term, 2013 No. 03584


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

OPINION BY LAZARUS, J.:                                    FILED AUGUST 30, 2016

        Allen    Huntzinger    and     Central   Parking    Systems,   Inc.   (“CPS”)

(collectively, “Appellants”) appeal from the judgment entered in favor of

Dwayne Gray by the Honorable Lisette Shirdan-Harris of the Court of

Common Pleas of Philadelphia County. Upon review, we reverse.

        The trial court summarized the facts as follows:

        [Gray] filed a Complaint asserting claims of assault, battery, and
        intentional infliction of emotional distress (“IIED”) against
        [Appellants], pursuing both compensatory and punitive
        damages. At the jury trial before [the trial court], [Gray]
        presented evidence regarding an incident on April 19, 2011, at
        the CPS offices. [Gray] worked for CPS at that time and was
        told to report to the office of [Huntzinger], the Operations
        Manager for CPS at the Philadelphia Sports Complex. [Gray]
        testified that while in [Huntzinger’s] office, [Huntzinger] first told
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     [Gray] that he was suspended [pending an] investigation. After
     continuously questioning [Huntzinger] for reasons why he was
     being suspended, [Huntzinger] fired him and grabbed [Gray’s]
     right arm forcefully to pull [Gray] towards [Huntzinger].

     [Gray] also testified that [Huntzinger] followed him into the
     hallway outside [Huntzinger’s] office and bumped into him,
     although not causing any injury. Afterwards, [Gray] called 911,
     stating he was “very sick to my stomach and I called 911
     because I wasn’t feeling well. [The situation] made me sick and
     I got concerned.” An ambulance arrived and took [Gray] to the
     hospital due to the situation elevating his Crohn’s [d]isease.
     “The Crohn’s is extremely painful. The elevation is due to many
     different things and one of them is being stress [sic] will cause
     swelling of the intestines and it’s very, very painful.” [Gray] also
     stated that the Crohn’s flare-up did not occur until after
     [Huntzinger] grabbed him.

     [Gray] testified that the incident made him feel humiliated and
     embarrassed in front of his co-workers. [Gray] also stated that
     even at the time of testimony, he felt threatened by the fact that
     an employer could treat him in this manner.

     On cross-examination, [Gray] stated that, prior to the incident,
     he had made numerous emergency room visits caused by his
     Crohn’s disease.

     [Appellants], during their case-in-chief, presented evidence
     offered by [Huntzinger]. He testified that on the day of the
     incident in question, he met with [Gray] to discuss a customer
     service complaint made against [Gray]. [Huntzinger] further
     testified that he never grabbed or touched [Gray], or threatened
     to grab or touch [Gray] during the meeting or at any time.
     [Huntzinger] also testified that after [Gray] left his office, he
     followed [Gray] into the hallway, walking two steps behind him
     when [Gray] stopped, took two steps back, bumped into
     [Huntzinger] (a “very minor” bump) and yelled “assault.”

     [Appellants] also presented the testimony of Annemarie
     Williams, the Facility Manager for CPS’s Wells Fargo Center
     location at the time of the incident. [Williams] was present
     during the entire meeting between [Gray] and [Huntzinger] and
     testified that at no time did [Huntzinger] grab, touch, or
     threaten to grab or touch [Gray]. [Williams] described [Gray’s]
     demeanor during the meeting as loud, belligerent, and angry[,]
     whereas she described [Huntzinger] as calm and cool.

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      [Williams] also agreed with [Huntzinger’s] testimony that after
      the meeting concluded, [Huntzinger] followed [Gray] into the
      hallway and lobby area, at which time [Gray] turned and
      “grazed” [Huntzinger].

Trial Court Opinion, 2/4/16, at 3-5 (citations to record omitted).

      At   the   close   of   Gray’s   case-in-chief,   Appellants   moved   for   a

compulsory non-suit, which was denied.            At the close of all evidence,

Appellants moved for a directed verdict and to dismiss Gray’s claim for

punitive damages. Both motions were denied.

      On November 20, 2014, the jury returned a verdict for Appellants on

the claims of assault and battery, but for Gray on the claim of IIED. The

jury awarded Gray a total of $67,500, including $15,000 in compensatory

damages, $2,500 in punitive damages against Huntzinger, and $50,000 in

punitive damages against CPS.

      On November 25, 2014, Appellants filed a motion for post-trial relief,

comprised of a motion for judgment notwithstanding the verdict (JNOV), a

motion for a new trial, and motion for remittitur. On May 20, 2015, the trial

court denied the motion for post-trial relief.

      On June 10, 2015, Appellants filed a timely notice of appeal and, on

June 30, 2015, filed their court-ordered concise statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b).                 On appeal,

Huntzinger and CPS raise six issues for our review:

      1.    Was [Gray] required to submit expert medical testimony to
      recover on this claim for intentional infliction of emotional
      distress?



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      2.    Was the evidence at trial sufficient to support the jury’s
      conclusion that [Huntzinger] was liable for intentional infliction of
      emotional distress?

      3.   Was the evidence at trial sufficient to support the jury’s
      award of punitive damages?

      4.    Are [Appellants] entitled to [JNOV]?

      5.    Are [Appellants] entitled to a new trial?

      6.    Are [Appellants] entitled to remittitur of punitive damages?

Brief for Appellants, at 9-10.

      Appellants first claim that the trial court erred in failing to grant JNOV

because medical testimony is required to recover on a claim for IIED.

Relying on Kazatkzy v. King David Memorial Park, Inc., 527 A.2d 988

(Pa. 1981), Appellants assert that because Gray did not present any expert

medical testimony at trial, the jury’s verdict cannot stand. We agree.

      “The gravamen of the tort of [IIED] is outrageous conduct on the part

of the tortfeasor.” Id. at 991. Specifically, a plaintiff must prove that the

defendant “by extreme and outrageous conduct intentionally or recklessly

cause[d] severe emotional distress.” Id., quoting Restatement (Second) of

Torts, § 46; Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. 1997).

      The tort of intentional infliction of emotional distress by
      outrageous conduct differs from traditional intentional torts in an
      important respect:     it provides no clear definition of the
      prohibited conduct.

      Battery, assault, and false imprisonment describe specific forms
      of behavior; while we can quibble about whether a kick in the
      playground should be attended with the same legal
      consequences as a kick in the classroom, everyone can agree
      that you cannot have a battery without physical contact (or an
      assault without at least the appearance of attempted physical
      contact, or a false imprisonment without restraint of the freedom

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       of movement). The relative ease with which injury may be
       established is counter balanced by the specificity of the
       prohibited behavior.

Kazatsky, 527 A.2d at 994, quoting Givelber, The Right to Minimum Social

Decency and the Limits of Evenhandedness:             Intentional Infliction of

Emotional Distress by Outrageous Conduct,¸82 COLUM. L. REV. 42, 52-53

(1982).

       In contrast to the intentional torts enumerated above, the definition of

“outrageousness” is subjective and nebulous;1 thus, the availability of
____________________________________________


1
 The Restatement (Second) of Torts defines “extreme and outrageous
conduct” as follows:

       The cases thus far decided have found liability only where the
       defendant’s conduct has been extreme and outrageous. 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!”

       The liability clearly does not extend to mere insults, indignities,
       threats, annoyances, petty oppressions, or other trivialities. The
       rough edges of our society are still in need of a good deal of
       filing down, and in the meantime 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. There is no occasion for the law to
       intervene in every case where [someone’s] feelings are hurt.
(Footnote Continued Next Page)


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recovery for IIED is “highly circumscribed,” id. at 991, and objective proof of

an injury is required.        To this end, the Court in Kazatsky concluded as

follows:

      It is basic to tort law that an injury is an element to be proven.
      Given the advanced state of medical science, it is unwise and
      unnecessary to permit recovery to be predicated on an inference
      based on the defendant’s “outrageousness” without expert
      medical confirmation that the plaintiff actually suffered the
      claimed distress. Moreover, the requirement of some objective
      proof of severe emotional distress will not present an
      unsurmountable obstacle to recovery. Those truly damaged
      should have little difficulty in procuring reliable testimony as to
      the nature and extent of their injuries. We therefore conclude
      that if section 46 of the Restatement is to be accepted in
      this Commonwealth,[2] at the very least, existence of the
      alleged emotional distress must be supported by
      competent medical evidence.

Id. at 995 (emphasis added).

      Despite the clear mandate of Kazatsky, Gray asserts that the fact he

was physically impacted by Huntzinger relieves him of the need to present

expert testimony.        However, for various reasons, the authorities cited by

Gray do not support his claim. Several of the cases upon which Gray relies

do not involve IIED but rather negligent infliction of emotional distress, for

which medical evidence is not required. See Niederman v. Brodsky, 261
                       _______________________
(Footnote Continued)


Restatement (Second) of Torts § 46 comment d. (1965).

2
  To date, the Supreme Court has yet to explicitly adopt section 46. Because
the plaintiff in Kazatsky failed to present medical evidence, the Court did
not find it necessary to reach the question of whether to allow causes of
action for IIED in this Commonwealth.



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A.2d 84 (Pa. 1970) (abandoning requirement of a physical impact as a

precondition to recovery for mental anguish damages in negligence cases);

Bloom v. Dubois Regional Medical Center, 597 A.2d 671 (Pa. Super.

1991) (addressing negligent infliction of emotional distress); Stoddard v.

Davidson, 513 A.2d 419 (Pa. Super. 1986) (same).

      Gray also cites the Subcommittee Note to Pennsylvania Standard Civil

Jury Instruction 17.40, which states as follows:

      [t]he Pennsylvania Superior Court has also stated that expert
      medical testimony is not necessary in order to establish a claim
      for intentional infliction of emotional distress in a non-negligence
      case where the causal connection between the conduct and the
      injury is “direct, obvious, and foreseeable.” Montgomery v.
      Bazaz-Sehgal, 742 A.2d 1125, 1133 (Pa. Super. 1999)[.]

Pa.S.S.J.I. (Civ.) § 17.40, Subcommittee Note.       However, contrary to the

characterization provided in the Note, Montgomery does not, in fact,

involve a claim of IIED; rather, it is a battery case in which mental anguish

damages were requested.       As noted above, the tort of IIED differs from

traditional intentional torts such as battery.     See Kazatsky, 527 A.2d at

994. Accordingly, the holding of Montgomery is inapposite here.

      Finally, Gray quotes extensively from Romani-Ruby v. Romani, 114

WDA 2015 (Pa. Super. filed 1/6/16) (unreported memorandum decision).

However,    Romani-Ruby       is:     (1)   non-precedential;    (2)   factually




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distinguishable; and (3) to the extent it appears to support Gray’s argument

in dicta, incorrect.3

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3
  In Romani-Ruby, the appellant was sued for, inter alia, negligent infliction
of emotional distress (“NIED”) and IIED, and a jury awarded damages
totaling nearly $2.5 million. On appeal, the appellant claimed that the
plaintiffs’ claims for IIED were unsupported by any medical testimony and,
as such, any award for such claims must fail pursuant to Kazatsky. In
disposing of this claim, the Court noted that the appellant did not request a
verdict form that differentiated between the NIED and IIED claims, nor did
he object to the form that was submitted to the jury. Thus, to the extent
that it was impossible to differentiate between the awards for NIED and
IIED, the claim was waived. However, the Court, in what can only be
construed as dicta due to the appellant’s waiver of the issue, went on to
interpret Kazatsky to stand for the proposition that, where outrageous
conduct is accompanied by any sort of physical impact, medical testimony is
not required to establish IIED. A close reading of Kazatsky reveals no such
exception.

        We note that the Romani-Ruby Court is not the only panel of this
Court to misread Kazatsky. Indeed, there is a line of cases reading
Kazatsky to require the existence of physical injury or harm in order to
recover on a claim of IIED. See Fewell v. Besner, 664 A.2d 577, 582 (Pa.
Super. 1995) (asserting that, under Kazatsky, “[a] plaintiff must also show
physical injury or harm in order to sustain a cause of action for intentional
infliction of emotional distress”); Johnson v. Caparelli, 625 A.2d 668, 671
(Pa. Super. 1993) (discussing the requirements for a claim of IIED under
section 46 of the Restatement (Second) of Torts and stating “[t]he Supreme
Court [in Kazatsky] has further added the requirement of physical injury or
harm in the event that § 46 is to be adopted”); Kelly v. Resource Housing
of America, Inc., 615 A.2d 423, 426 (Pa. Super. 1992) (setting forth
requirements for IIED claim and noting that, “[a]s a threshold requirement,
in any event, there must be physical injury or harm”); Abadie v. Riddle
Memorial Hospital, 589 A.2d 1143, 1146 (Pa. Super. 1991) (“[I]n
[Kazatsky], our [S]upreme [C]ourt imposed, as a threshold requirement to
determining whether specific conduct of which a party complains reaches the
level of outrageousness under [s]ection 46 of the Restatement (Second)
Torts, an allegation of physical injury or harm.”).

(Footnote Continued Next Page)


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      In sum, our Supreme Court clearly articulated in Kazatsky that, to the

extent the tort of IIED is recognized in this Commonwealth, recovery is

limited to those cases in which competent medical evidence of emotional

distress is presented by the claimant.4           See also Cassell v. Lancaster

                       _______________________
(Footnote Continued)

      The portion of Kazatsky cited by each of the above panels in support
of the purported “physical injury or harm” requirement reads as follows:

      It is basic to tort law that an injury is an element to be proven.
      Given the advanced state of medical science, it is unwise and
      unnecessary to permit recovery to be predicated on an inference
      based on the defendant’s “outrageousness” without expert
      medical confirmation that the plaintiff actually suffered the
      claimed distress. Moreover, the requirement of some objective
      proof of severe emotional distress will not present an
      unsurmountable obstacle to recovery. Those truly damaged
      should have little difficulty in procuring reliable testimony as to
      the nature and extent of their injuries. We therefore conclude
      that if section 46 of the Restatement is to be accepted in this
      Commonwealth, at the very least, existence of the alleged
      emotional distress must be supported by competent medical
      evidence. In this case no such evidence was presented and the
      record further reflects that neither Mr. nor Mrs. Kazatsky sought
      medical assistance.

Kazatsky, 527 A.2d at 995.         We can only assume that the Court’s
references to “injuries” were interpreted by the prior panels to refer to
physical, and not emotional or psychological, injuries and that the Court’s
use of the word “medical” was construed to be limited to physical, and not
emotional or mental, health. In context, however, it is apparent that the
Court was using the term “medical” to include such practitioners as
psychiatrists who are, in fact, medical doctors. Likewise, the term “injuries”
was meant to encompass mental and emotional distress.
4
   Our interpretation of Kazatsky is supported by the decision of the
Supreme Court in Hackney v. Woodring, 652 A.2d 291 (Pa. 1994). There,
plaintiff was employed by defendant as a teacher’s aide at a day care center.
During the course of her employment, the defendant, on numerous
(Footnote Continued Next Page)


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Mennonite Conference, 834 A.2d 1185, 1189 n.3 (Pa. Super. 2003)

(“Expert medical testimony is necessary to establish that a plaintiff actually

suffered the claimed emotional distress.”); Wecht v. PG Pub. Co., 725 A.2d

788, 791 (Pa. Super. 1999) (“The Court [in Kazatsky] held that plaintiffs

could not succeed absent medical confirmation that they actually suffered

the claimed emotional distress.”); Shiner v. Moriarty, 706 A.2d 1228, 1239

(Pa. Super. 1998) (“Expert medical testimony is required to establish a claim

for intentional infliction of emotional distress.”);   Britt v. Chestnut Hill

College, 632 A.2d 557, 561 (Pa. Super. 1993) (“In addition to requiring that

a plaintiff establish that the conduct complained of was outrageous, the

                       _______________________
(Footnote Continued)

occasions, forcibly held her down on his lap and touched, fondled, and
spanked her. Plaintiff eventually was discharged and brought an action for
IIED, claiming she suffered from humiliation, loss of self-esteem,
nightmares, and insomnia.

      Following a jury verdict in favor of the plaintiff, the trial court granted
defendant’s motion for JNOV on the ground that plaintiff had failed to
introduce expert medical testimony. On appeal this Court held that “[w]e
conclude that expert testimony was not required under the facts and
circumstances of the present case,” and reversed the grant of JNOV.
Hackney v. Woodring, 622 A.2d 286 (Pa. Super. 1993). The Court
reasoned that the question of whether severe emotional distress existed
could be decided by a jury unaided by expert testimony.

      On allowance of appeal, despite the evidence of physical impact
by the defendant upon the plaintiff, our Supreme Court, citing Kazatsky
in a per curiam order, reversed this Court’s holding, thus reinstating the trial
court’s grant of JNOV. Thus, it is apparent that, regardless of the presence
of physical impact, Kazatsky unequivocally requires expert medical
testimony as a precondition to recovery for IIED.




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Pennsylvania   Supreme    Court has required that     the   plaintiff present

competent medical evidence to support the claim.”).

     Because we have determined that Gray was not entitled to recover for

IIED based on the lack of medical evidence presented at trial, we need not

address the remainder of Appellants’ claims.

     Judgment reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2016




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