John v. Phila. Pizza Team, Inc., 3010 EDA 2018

209 A.3d 380

Reynold JOHN, Appellant

v.PHILADELPHIA PIZZA TEAM, INC. d/b/a Domino's Pizza and Hardip Kaur

No. 3010 EDA 2018

Superior Court of Pennsylvania.

Argued April 9, 2019

Filed May 1, 2019

Glenn A. Ellis, Philadelphia, for appellant.

Matthew B. Dopkin, Cherry Hill, New Jersey, for appellee.

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI,^* J.

OPINION BY MURRAY, J.:

Reynold John (Appellant) appeals from the order of August 31, 2018 sustaining the preliminary objections of Philadelphia Pizza Team, Inc. d/b/a Domino's Pizza and Hardip Kaur (Domino's), and dismissing Appellant's complaint. We affirm.

The trial court summarized the factual and procedural background as follows:

On July 21, 2017, [Appellant] ordered a pizza for delivery from [Domino's]. When the pizza was delivered, [Appellant] was dismayed to find it burnt. [Appellant] took the pizza to the Domino's restaurant and demanded a refund from a store employee, Defendant Hardip Kaur ("Kaur"). According to the police report, [Appellant] snapped a photo of Kaur. Kaur then refused to provide [Appellant] a refund until he deleted the photo because it was against Kaur's religion to have her photo taken. An argument ensued, and Kaur called [Appellant], who is African-American, a "nigger."

Prior to initiating the instant lawsuit, on March 5, 2018, [Appellant] filed a pro se complaint (docket no. 180300056) against "Domino's Pizza" claiming negligent training, supervision and hiring and intentional infliction of emotional distress ("IIED"). On March 24, 2018, in response to [Appellant's] motion to proceed in forma pauperis , Hon. Idee C. Fox issued an order granting the IFP but also dismissing the action sua sponte under Pa.R.C.P. 240(j)(1) for failure to state a claim upon which relief can be granted. That order cited the analogous case Dawson v. Zayre Department Stores , 346 Pa.Super. 357, 499 A.2d 648 ( [ ] 1985), discussed in greater detail below. [Appellant] did not appeal Judge Fox's order.

On [May] 11, 2018, [Appellant], having retained counsel, filed a complaint in the instant action, claiming negligent training, supervision and hiring, IIED, and negligent infliction of emotional distress ("NIED"). By stipulation of [the] parties, [Appellant] filed an amended complaint on July 2, 2018. The amended complaint contained the same claims but added an introductory paragraph and some additional details. [Appellant] demanded compensatory damages in excess of the arbitration limit as well as punitive damages. [The case was assigned to the Honorable Arnold L. New.]

On July 23, 2018, [Domino's] filed preliminary objections in the nature of a demurrer requesting dismissal based on Judge Fox's order and Dawson . The Court issued an order on August 31, 2018 sustaining the objections and dismissing the case. [Appellant] filed a notice of appeal on September 28, 2018. In his Pa.R.A.P. 1925 concise statement of errors, [Appellant] claims this [c]ourt erred by dismissing the case "pursuant to the doctrines of ‘law of the case’, ‘coordinate jurisdiction,’ ‘collateral estoppel,’ and ‘res judicata’ " because Judge Fox's order was issued without giving [Appellant] the opportunity to be heard or in response to preliminary objections. [Appellant] further claims this [c]ourt erred in sustaining [Dominos'] preliminary objections because "this particular racial epithet, which was used against [Appellant] with such hate and frequency that the police noted it on their report, is ripe with hundreds of years of negative and menacing meaning."

Trial Court Opinion, 11/2/18, at 1-3 (footnotes omitted).

At the outset, we note that Appellant appeals from the order entered on August 31, 2018 by the Honorable Arnold L. New, which dismissed the underlying complaint filed by Appellant on May 11, 2018. As Judge New observed in his opinion, Appellant had filed a prior complaint, pro se , which another judge, the Honorable Idee C. Fox, dismissed on March 24, 2018. Appellant did not file an appeal to the March 24, 2018 dismissal by Judge Fox, and that prior action is not on or related to this docket. However, after Judge New entered the August 31, 2018 order dismissing the complaint on the underlying docket — and notice was given pursuant to Pa.R.C.P. 236 — Appellant, on September 5, 2018, filed a praecipe to reinstate complaint and an amended complaint. Then, on September 28, 2018, Appellant filed a notice of appeal from the August 31, 2018 order. The filing of the appeal divested the trial court of jurisdiction. See Pa.R.A.P. 1701 ("after an appeal is taken ... the trial court ... may no longer proceed further in the matter"). Nonetheless, the Honorable Linda Carpenter, on November 8, 2018, entered an order dismissing Appellant's amended complaint filed on September 5, 2018. That order was a legal nullity. We have explained:

Rule 1701 cannot be overlooked. The trial court's order ... is a nullity because it was entered at a time when the trial court did not have jurisdiction—i.e. , the order was entered after [appellant] filed [the] first notice of appeal with this Court and before the record was remanded to the trial court pursuant to Pa.R.A.P. 2591(a). Rule 2591(a) indicates that Rule 1701(a) "shall no longer be applicable to the matter" once the record is remanded. Since the record had not yet been remanded at the time the trial court entered its order, ... the trial court did not have jurisdiction to enter such order and, therefore, such order is void.

Bell v. Kater , 839 A.2d 356, 358 (Pa. Super. 2003) (emphasis in original).

Accordingly, we proceed to address the appeal before us from the August 31, 2018 order. Appellant phrases his issue as follows:

Did the Trial Court err in holding that [Dominos'] actions in repeatedly calling an African-American customer, who has asked for a refund, a "nigger" merely constitutes naming [sic ] calling from which no recovery may be had because "being offended over the use of a racial slur in an argument is simply not enough to establish liability under any ... theory?

Appellant's Brief at 4.

Appellant acknowledges this Court's holding in Dawson , 346 Pa.Super. 357, 499 A.2d 648. Nonetheless, Appellant states that "it has been 30 years since the Dawson opinion," and argues the trial court's application of Dawson is "outdated." Id. at 11, 20.

Our standard of review from the trial court's order granting Dominos' preliminary objections in the nature of a demurrer and dismissing Appellant's complaint is well-settled. We must:

determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Estate of Denmark ex rel. Hurst v. Williams , 117 A.3d 300, 305 (Pa. Super. 2015) (citations omitted).

It is undisputed that the trial court based its ruling on this Court's decision in the Dawson case. The facts and procedural posture in Dawson are analogous:

Appellant entered Zayres Department Store intending to pick up a lay-away item. She became involved in a dispute with a store employee over the lay-away ticket. During the argument, the employee called the Appellant a "nigger". Appellant filed a complaint in trespass alleging that she suffered severe emotional distress as a result of this incident: wounded feelings; humiliation; physical harm; and that she cried and was unable to gain her composure for one-half hour.

Dawson , 499 A.2d at 648–49. The trial court in Dawson held that the actions of Zayre's employee "did not rise to the level of extreme and outrageous conduct required to sound in tort." Id. at 649. Accordingly, the trial court granted Zayre's preliminary objections in the nature of a demurrer and dismissed the appellant's complaint.

On appeal, this Court emphasized that it "by no means condone[d] the derogatory and offensive language used by [Zayre's] employee," and understood "Appellant's rightful resentment." Id. Nonetheless, we recognized the applicable law:

Liability for intentional infliction of emotional distress is limited to those cases in which the conduct complained of is extreme and outrageous. Jones v. Nissenbaum , Rudolph and Seidner , 244 Pa.Super. 377, 368 A.2d 770 (1976). Further, it is for the court to determine, in the first instance, whether the defendant's conduct can reasonably be regarded as so extreme and outrageous so as to permit recovery. Restatement (Second) of Torts, § 46, comment (h) (1965).

Conduct which does not meet the requisites for liability is described in comment (d) of the Restatement (Second) of Torts § 46:

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 some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.

Dawson , 499 A.2d at 649.

We also referenced the following illustration from the...