noting that "[s]ome of these courts have allowed prima facie tort claims without any analysis or citation."Summary of this case from Cotner v. Yoxheimer
Civil Action No. 04-CV-0437.
June 16, 2004
This case arises out of a physical altercation between Plaintiff and Defendant. At the time of the altercation, Plaintiff and Defendant were law school classmates. According to the Complaint, Plaintiff was injured when Defendant assaulted and battered him without any provocation or cause. (Compl. ¶ 1.) Defendant answered the Complaint, and asserted a counterclaim for harassment. According to the counterclaim, following the altercation, Plaintiff, through his attorney, harassed Defendant in part by threatening to file, and then filing, criminal and civil charges against Defendant. (Countercl. ¶¶ 7-10.) Defendant claims that Plaintiff knowingly made false statements to Defendant and threatened to file criminal charges against him, all with the intent to harass Defendant and force him to pay Plaintiff a large sum of money. ( Id. ¶¶ 7, 11.) Plaintiff also allegedly sent an e-mail to a large segment of the parties' law school classmates referring to the altercation and making fun of Defendant. ( Id. ¶ 15.) Presently before the Court is Plaintiff's Motion to Dismiss Defendant's Counterclaim Pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. No. 7.) For the following reasons, Plaintiff's Motion will be granted.
I. LEGAL STANDARD
When considering a motion to dismiss a complaint for failure to state a claim under Rule 12(b)(6), we must "accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them. Dismissal under Rule 12(b)(6) . . . is limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved." Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990).
Plaintiff argues that we must dismiss Defendant's counterclaim because there is no cause of action for harassment in Pennsylvania. Defendant agrees that the Pennsylvania Supreme Court has not yet recognized a cause of action for harassment, but argues that it would recognize such a tort under either of two legal theories. First, Defendant claims the Pennsylvania Supreme Court would imply a civil action for harassment from 18 PA. CONS. STAT. § 2709, which is a criminal statute prohibiting, among other things, repeated "acts which serve no legitimate purpose" that are committed "with intent to harass, annoy, or alarm another." Second, Defendant claims that the Pennsylvania Supreme Court would recognize a claim for prima facie tort as described in section 870 of the Restatement (Second) of Torts.
Section 870 of the Restatement (Second) of Torts provides:
One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances. This liability may be imposed although the actor's conduct does not come within a traditional category of tort liability.
"The principle of tort liability embodied by section 870 is most widely know as the doctrine of prima facie tort or sometimes simply as intentional tort." Charles Shaid of Pa., Inc. v. George Hyman Constr. Co., 947 F. Supp. 844, 847 (E.D. Pa. 1996).
Since there is no binding precedent, our task as a federal court presiding over a diversity case is to predict whether the Pennsylvania Supreme Court would recognize claims for harassment and/or prima facie tort. City of Phila. v. Lead Indus. Ass'n, Inc., 994 F.2d 112, 123 (3d Cir. 1993). This requires that we "`consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue.'" Nationwide Ins. Co. v. Resseguie, 980 F.2d 226, 230 (3d Cir. 1992) (quoting McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663 (3d Cir. 1980)). "[I]n predicting the future course of state common law, `a federal court must be sensitive to the doctrinal trends of the state whose law it applies, and the policies which inform the prior adjudications by the state courts.'" Charles Shaid of Pa., Inc. v. George Hyman Constr. Co., 947 F. Supp. 844, 852 (E.D. Pa. 1996) (quoting Clark v. Modern Group Ltd., 9 F.3d 321, 327 (3d Cir. 1993) (citations and internal quotation marks omitted)).
We note that most courts that have addressed this issue have declined to recognize claims for harassment and/or prima facie tort in Pennsylvania. See, e.g., Sobel v. Wingard, 531 A.2d 520, 523 (Pa.Super. 1987) (declining to create a new cause of action for harassment); DeAngelo v. Fortney, 515 A.2d 594, 596 (Pa.Super. 1986) (same); Charles Shaid, 947 F. Supp. at 855 (noting that "[n]o Pennsylvania court or court interpreting Pennsylvania law has ever stated that, in Pennsylvania, prima facie tort is a valid cause of action").
The only exceptions to this are a few federal district courts that have permitted litigants to maintain prima facie tort claims under Pennsylvania law. Some of these courts have allowed prima facie tort claims without any analysis or citation. See, e.g., Banerjee v. Temple Univ., No. 96-1733, 1996 WL 479662, at *2 (E.D. Pa. Aug. 20, 1996) (declining to dismiss the plaintiff's prima facie tort claim). Others have relied on the Pennsylvania Superior Court opinion, Smith v. Griffiths, 476 A.2d 22 ( Pa. Super. 1984), as evidence that a prima facie tort claim exists in Pennsylvania. See, e.g., LM Beverage Co. v. Guinness Imp. Co., No. 94-CV-4492, 1995 WL 771113, at *5 (E.D. Pa. Dec. 29, 1995) (relying on Griffiths for its conclusion that Pennsylvania recognizes a claim for prima facie tort); American Standard Life Accident Ins. Co. v. URL, Inc., 701 F. Supp. 527, 539 (E.D. Pa. 1988) (relying on Griffiths in denying the defendants' motion to dismiss prima facie tort claim). However, Griffiths does not persuade us that the Pennsylvania Supreme Court would recognize a claim for prima facie tort. In Griffiths, the court assessed the plaintiff's prima facie tort claim and concluded that his allegations did not state a claim under section 870 of the Restatement. 476 A.2d at 427-28. Thus, the court did not specifically determine that Pennsylvania had adopted section 870 of the Restatement. See Charles Shaid, 947 F. Supp. at 853 (reaching the same conclusion as to Griffiths' limited holding); see also D'Errico v. DeFazio, 763 A.2d 424, 433 (Pa.Super. 2000) (stating in dicta that "Pennsylvania has not yet adopted intentional or prima facie tort as set forth in § 870 of the Restatement").
Griffiths is a decision of the Superior Court of Pennsylvania. Only the Pennsylvania Supreme Court or the Pennsylvania legislature can create new causes of action. See D'Errico v. DeFazio, 763 A.2d 424, 433 (Pa.Super. 2000) ("[O]nly our supreme court and the legislature can adopt new causes of action in Pennsylvania.") (citing Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650 (Pa. 2000)).
Assuming that Pennsylvania would recognize claims for harassment and/or prima facie tort, we are not persuaded that the conduct alleged in this case rises to an actionable level. An element of both proposed torts is that the alleged tortious conduct be without justification, or that it serve no legitimate purpose. See RESTATEMENT (SECOND) OF TORTS § 870 (1979) (requiring that tortious conduct be "not justifiable under the circumstances"); 18 PA. CONS. STAT. § 2709 (requiring for violation that person "commit acts which serve no legitimate purpose"). In this case, Defendant's allegations do not demonstrate that Plaintiff committed acts without justification or that served no legitimate purpose. For example, the first alleged act of harassment is a letter written by Plaintiff's attorney to Defendant. In that letter, Plaintiff's attorney stated that his purpose in writing was "in the hopes that we can work out a reasonable resolution to compensate [Plaintiff] for his significant losses." (Doc. No. 4, Ex. A at 2.) Defendant responded that "he had no money and no insurance coverage. . . ." (Countercl. ¶ 9.) Plaintiff's attorney then informed Defendant that his "position [was] not acceptable" and that Plaintiff was "proceeding with both civil and criminal charges as well as a disciplinary proceeding with the University of Pennsylvania." (Doc. No. 4, Ex. B.) Even construing these allegations in the light most favorable to Defendant, we cannot say that Plaintiff's acts served no legitimate purpose. Though Defendant alleges that Plaintiff acted with malice and to harass, (Countercl. ¶ 11), we need not credit "bald assertions" or "legal conclusions" in deciding this Motion. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
In an analogous case, Sobel, the plaintiff, a teacher, sued his principal for libel, slander, and harassment after the principal allegedly wrote a letter about plaintiff containing false statements about plaintiff's work performance. The court dismissed the harassment claim in part because the plaintiff did not "allege any facts which would tend to show that defendant's letter had `no legitimate purpose' or was written merely to `annoy' him. . . ." Sobel, 531 A.2d at 523; cf. Commonwealth v. Wheaton, 598 A.2d 1017, 1020 (Pa.Super. 1991) (threatening to sue utility in order to restore water service to the plaintiff's home served legitimate purpose and was not harassment).
In any event, even if Plaintiff's conduct did rise to the level of harassment and/or prima facie tort, we do not believe that, under the facts of this case, the Pennsylvania Supreme Court would recognize either tort. Pennsylvania courts have consistently declined to create new torts when existing law provides adequate remedies to address the conduct complained of in a particular case. See, e.g., D'Angelo, 515 A.2d at 596; Standard Pipeline Coating Co. v. Solomon Teslovich, Inc., 496 A.2d 840, 843 (Pa.Super. 1985). We are satisfied that there are torts already recognized in Pennsylvania that adequately address the conduct of which Defendant complains. For example, if Defendant believes that Plaintiff provided information to the police about Defendant that Plaintiff knew was false, Defendant may bring a claim for malicious prosecution against Plaintiff. See, e.g., Bradley v. General Accident Ins. Co., 778 A.2d 707, 711 (Pa.Super. 2001). If Defendant believes that Plaintiff instituted civil proceedings against him for an improper purpose, Defendant may bring a claim for abuse of process against Plaintiff. See, e.g., Harris v. Brill, 844 A.2d 567, 572 (Pa.Super. 2004); see also 42 PA. CONS. STAT. § 8351 (describing elements of claim for wrongful use of civil proceedings). Because there are torts under Pennsylvania law that adequately address Defendant's complaints, we will follow Pennsylvania's lead and decline Defendant's request that we recognize new torts.
An appropriate Order follows.
ORDERAND NOW, this 16th day of June, 2004, upon consideration of Plaintiff's Motion to Dismiss Defendant's Counterclaim Pursuant to Fed.R.Civ.P. 12(b)(6), (Doc. No. 7), it is ORDERED that Plaintiff's Motion is GRANTED and Defendant's Counterclaim is DISMISSED.
IT IS SO ORDERED.