IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CIVIL DIVISION – LAW

PHILIP DEFRANCO, : NO. C-48-CV-2008-7120 Plaintiff : : v. : : DANIELLE KISHBAUGH and CARL : ALTEMOSE, : Defendants :

ORDER AND REASONS

AND NOW, this day of September, 2009, upon consideration of the Preliminary

Objections of Plaintiff, Philip DeFranco, it is hereby ORDERED and DECREED as follows:

1. Plaintiff’s to Counts III and IV of Defendant Kishbaugh’s Counterclaim

is DENIED.

2. Plaintiff’s Demurrer to the damage claim of Count III of Defendant Kishbaugh’s

Counterclaim is DENIED in part and GRANTED in part.

3. Plaintiff’s Demurrer to Count V of Defendant Kishbaugh’s Counterclaim is

DENIED.

4. Plaintiff’s Demurrer to Count VI of Defendant Kishbaugh’s Counterclaim is

GRANTED.

STATEMENT OF REASONS

1. This matter was assigned to the Honorable F.P. Kimberly McFadden on the

September 8, 2009 argument list.

2. Plaintiff, Philip DeFranco, filed a on July 18, 2008, arising out of an oral lease agreement between Plaintiff as landlord and Defendants, Danielle Kishbaugh and Carl

Altemose, as tenants of premises located at 433 Male Road, Wind Gap, Northampton County,

Pennsylvania.

3. Defendant Kishbaugh filed a pro se “Statement of Defense” on August 15, 2008 and an on September 17, 2008.

4. On April 6, 2009, this Court granted Defendant Kishbaugh leave to file an

Amended Answer.

5. Defendant Kishbaugh filed an Amended Answer, New Matter and Counterclaim on May 5, 2009.

6. Plaintiff filed Preliminary Objections to Defendant Kishbaugh’s Counterclaim, in the nature of a demurrer to Counts III, IV, V and VI of the Counterclaim, on May 26, 2009.

7. Defendant Kishbaugh filed a to Plaintiff’s Preliminary Objections on June

15, 2009.

Demurrer to Counts III and IV of Counterclaim

8. Plaintiff alleges that Counts III and IV of the Counterclaim fail to set forth a legally sufficient for breach of implied warranty of habitability because

Defendant Kishbaugh has not alleged that she provided notice and demand upon Plaintiff to correct a defect or condition existing on the leased premises.

2 9. Defendant Kishbaugh alleges that “Plaintiff had notice of the defective condition of the premises and had a reasonable opportunity to remedy the condition, yet failed to do so.”

See Counterclaim at Paragraph 55, 63.

10. Defendant’s is sufficient to support a cause of action based on breach of implied warranty of habitability, and Plaintiff’s Preliminary Objection is denied.

Count III Damages

11. Plaintiff alleges that the damages sought for intangible harm in Count III of

Defendant Kishbaugh’s Counterclaim are not recoverable as a matter of law.

12. Specifically, Count III of the Counterclaim is pleaded under the Unfair Trade

Practices and Consumer Protection Law, 73 P.S. §§ 201-1 et seq., and seeks “damages for deprivation and humiliation, discomfort and annoyance, Plaintiff’s refusal to return the security deposit, and other intangible losses.” See Counterclaim at Paragraph 59.

13. The statute provides:

Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper. The court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees.

73 P.S. § 201-9.2 (a).

14. Thus, while the statute specifically authorizes recovery of actual damages, it does not prohibit the recovery of intangible losses. However, it is clear that only actual

3 losses may be tripled at the discretion of the court.

15. In the instant case, Defendant Kisbaugh’s claims for intangible losses are not barred as a matter of law, but Defendant Kishbaugh cannot recover triple damages for intangible losses. Consequently, Plaintiff’s Preliminary Objection is denied in part and granted in part. Plaintiff’s demurrer to any recovery for intangible losses is denied.

Defendant Kishbaugh’s demand in Count III of the Counterclaim seeking triple damages for deprivation and humiliation, discomfort and annoyance, and other intangible losses is hereby stricken.

Demurrer to Count V of Counterclaim

16. Plaintiff asserts that Defendant Kishbaugh’s Counterclaim fails to set forth

a cause of action for intentional infliction of emotional distress.

17. As defined by Section 46 of the Restatement (Second) of Torts, “[o]ne

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.”

18. While the Pennsylvania Supreme Court has not formally recognized the

tort of intentional infliction of emotional distress, the Pennsylvania Superior Court has held that tenants have the right to allege and to prove that landlords, by breaching the implied warranty of habitability, have intentionally inflicted emotional distress upon the

4 tenants. Fair v. Negley, 390 A.2d 240 (Pa. Super. 1978); Beasley v. Friedman, 389

A.2d. 1087 (Pa. Super. 1978).

19. In the instant case, Defendant Kishbaugh has alleged that Plaintiff failed

to maintain habitable premises, Plaintiff’s failure was in breach of the implied warranty of habitability, Plaintiff’s refusal to repair the premises was extreme and outrageous, intentional and/or reckless and resulted in severe emotional distress to Defendant

Kishbaugh. See Counterclaim at Paragraphs 69-71.

20. At this stage of the pleadings, Defendant’s pleading is sufficient to support a cause of action based on intentional infliction of emotional distress, and Plaintiff’s Preliminary

Objection is denied.

Demurrer to Count VI of Counterclaim

21. Plaintiff asserts that Defendant Kishbaugh’s Counterclaim fails to set forth

a cause of action for negligent infliction of emotional distress.

22. In Pennsylvania, a cause of action for negligent infliction of emotional

distress depends on three factors: (1) whether the plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it; (2) whether the shock resulted from direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the plaintiff and victim were

5 closely related. Sinn v. Burd, 404 A.2d 672 (Pa. 1979). A plaintiff may recover for the negligent infliction of emotional distress (1) when a close family member experiences a contemporaneous sensory observance of physical injuries being inflicted upon another family member, or (2) when the plaintiff nearly experiences a physical impact in that he or she was in the zone of danger of the defendant’s tortious conduct. Hunger v. Grand

Central Sanitation, 670 A.2d 173 (Pa. Super. 1996).

23. In the instant case, Defendant Kishbaugh’s allegations at Count VI of her

Counterclaim are clearly insufficient to establish a cause of action for negligent infliction of emotional distress as a matter of law. Defendant fails to allege the existence of a close family relationship with Defendant Altemose and fails to allege any physical injuries to Defendant Altemose or near physical injuries to herself sufficient to meet the requisite elements of the cause of action. Consequently, Plaintiff’s demurrer to Count VI of the Counterclaim is granted. BY THE COURT:

______, F.P. KIMBERLY McFADDEN, P.J.

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