Little v. York County Earned Income Tax Bureau

WIEAND, Judge,

dissenting:

I respectfully dissent. The negligent advice given by an employee of York County Earned Income Tax Bureau was so attenuated by subsequent independent and highly extraordinary intervening events that such negligence cannot be said to be the legal cause of appellee’s imprisonment. Therefore, I would reverse and cause judgment to be entered for the appellant.

Jeanne E. Little was an employee of General Telephone Company. Her employer customarily deducted local wage taxes from her salary and paid them to the local taxing authorities. In 1976, Ms. Little moved from the Central York School District to the Spring Grove District. Her wage tax returns were annually prepared by H & R Block and appropriately mailed after she had signed the same. In 1978, she moved from the Spring Grove District to Red Lion. Her tax returns for that year were prepared for her by a friend. Because Ms. Little had failed to receive tax forms from the Spring Grove District, 1 she called the York County Earned Income Tax Bureau to inquire about the filing procedure to be followed by one who had changed residence. She testified that an unidentified person, who answered the phone, promised to mail her a form and told her one filing would suffice. That form was received, completed, and mailed to the Earned Income Tax Bureau. The Spring Grove District was not serviced by the Bureau, however, and Ms. Little’s tax return was not forwarded to that district.

A representative of the Spring Grove District testified that after Ms. Little’s delinquency had become apparent, a *25 tax return and a notice to complete and file within three weeks were sent to her in Red Lion by first class mail. She said she didn’t receive the letter. The School District showed, however, that the undelivered letter had not been returned to the sender. Therefore, it assumed that delivery of the notice had been made. When it received no response from the taxpayer, the School District caused notice to be sent by certified mail, return receipt requested. The post office sent three separate notices to the taxpayer, which, Ms. Little concedes, were duly received. She testified, however, that she was too busy to go to the post office for the certified letter, and the letter was eventually returned “unclaimed” to the School District.

The Spring Grove School District thereafter filed a complaint with Magistrate Hill, who issued not only a summons but a warrant for Jeanne Little’s arrest. The warrant was served on appellee on Wednesday before Easter in 1980. When she declined to enter a plea of guilty, the magistrate set bail at $500. He then refused to accept a personal check for the bail and also refused to allow time for a friend to obtain the cash bail demanded. Because Ms. Little was not carrying adequate cash on her person to meet the demand of the magistrate, he ordered that she be committed to the York County Prison. An attorney was employed, but he did not get to see Ms. Little or otherwise contact her until Thursday evening. Inexplicably, the attorney then represented that he was powerless to obtain the client’s release from prison until after the Easter holiday. Ms. Little was not released until Monday evening. The charges against her were subsequently dismissed when she completed a return at her hearing.

The issue of proximate cause includes a consideration of the degree of culpability in determining whether to hold an actor liable for negligent conduct. Seidelson, Some Reflections on Proximate Cause, 19 Duq.L.Rev. 1, 2-3 (1980); Morris, Duty, Negligence and Causation, 101 U.Pa.L.Rev. 189, 193-194 (1952). For reasons of propriety and fairness, the scope of a defendant’s liability should not be wholly *26 disproportionate to the culpability of his act. Seidelson, supra. Proximate cause is used as a term of art to denote the point beyond which legal responsibility will not attach for a negligent act. Hamil v. Bashline, 481 Pa. 256, 265 , 392 A.2d 1280, 1284 (1978).

To be a proximate cause, defendant’s negligence must be a substantial factor in causing the plaintiff’s harm — in this case, her alleged mental distress. Hamil v. Bashline, supra; Takach v. B.M. Root Co., 279 Pa.Super. 167, 170 , 420 A.2d 1084, 1086 (1980); Noon v. Knavel, 234 Pa.Super. 198, 208 , 339 A.2d 545, 550 (1975); Wisniewski v. The Great Atlantic and Pacific Tea Co., 226 Pa.Super. 574, 581-582 , 323 A.2d 744, 748 (1974). Where the facts are not in dispute and the causal connection between the defendant’s negligence and the plaintiff’s injuries is clearly remote, the issue of proximate cause is a question of law for the court. Flickinger Estate v. Ritsky, 452 Pa. 69, 74 , 305 A.2d 40, 43 (1973); Liney v. Chestnut Motors, Inc., 421 Pa. 26, 29 , 218 A.2d 336, 338 (1966); Klimczak v. 7-Up Bottling Company of Philadelphia, Inc., 385 Pa. 287, 293 , 122 A.2d 707, 710 (1956), disapproved on other grounds, Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134 , 153 A.2d 477 (1959); Restatement (Second) of Torts § 434(1)(a) (1965). See: Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 257-259 , 465 A.2d 1231, 1239 (1983) (Nix, J., concurring and dissenting); Prosser, Law of Torts § 50 (1941).

In determining whether negligent conduct is a substantial factor in causing harm, consideration must be given to “the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it.” Restatement (Second) of Torts § 433 (1965). Other factors may have such a predominant effect in bringing about the harm that the actor’s negligent act is insignificant, and, thus, not a substantial factor. Restatement (Second) of Torts § 433, comment (d) (1965).

“An intervening force is one which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.” Restatement (Second) of *27 Torts § 441(1) (1965). In determining whether an intervening cause supersedes the actor’s negligent act or omission so as to relieve the actor from liability a court must consider the following factors:

(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;

(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;

(c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;

(d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act;

(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;

(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

Restatement (Second) of Torts § 442 (1965).

After examining the number of additional factors which contributed to Jeanne Little’s imprisonment and examining them in the light of the considerations suggested by the foregoing sections of the Restatement, I would conclude as a matter of law that appellant’s negligence was not the legal or proximate cause of her harm.

Jeanne Little’s mental distress and humiliation were caused by her imprisonment, not by the Bureau’s negligence in failing to advise her correctly. Her humiliation was caused not because of mere tax liability or failure to file a necessary return. Her wage taxes had been paid; they had been withheld from her wages by her employer, and had been paid to the school districts to which they were owed. Her only apparent default had been a seeming failure to file an annual return with the school district from *28 which she had moved in mid year. In fact, this return had been forwarded to the York County Earned Income Tax Bureau and, because of the Bureau’s negligence, had not been filed properly with the Spring Grove School District. Looking back from appellee’s imprisonment and considering the many subsequent factors which brought it about, I find it inconceivable that appellant’s negligence can reasonably be said to be the legal cause thereof. Appellant’s negligence is entirely too remote.

In the first place, there is the matter of two notices sent to Ms. Little that a tax return had not been received by the Spring Grove School District. The first notice, although sent by first class mail, was neither delivered nor returned to the sender. The necessary inference is that it was lost in the mail. A second notice, sent by certified mail, was not received by Ms. Little because, despite three separate notices that it was being held for her in the post office, she found herself too busy to pick it up. If only one of the School District’s notices had been received, it seems obvious that the apparent deficiency in failing to file a return would have been corrected. Instead, Jeanne Little remained blissfully ignorant that the School District had not received a copy of her tax return. Criminal prosecution followed.

Even if criminal prosecution for the failure to file a return could conceivably be said to have been caused proximately by the Bureau’s negligence, the Bureau, nevertheless, was not responsible for the independent act of the magistrate who incarcerated appellee without a hearing during Holy Week because he rejected her explanation, insisted on cash bail and refused arbitrarily to accept a check or allow her reasonable time to obtain cash. Similarly, the Bureau’s negligence was separate from and unrelated to the delay of counsel and his supine and inexplicable helplessness to obtain appellee’s release from prison before the following Monday evening. At this point we are four or five steps removed from appellant’s negligence. At least four independent, intervening causes have coincided to bring about appellee’s five day incarceration without a *29 hearing. This combination of intervening causes for which others were responsible produced a result entirely different than one could reasonably anticipate as a consequence of the Bureau’s negligence. Indeed, the result was one which even the majority conceives as being truly extraordinary. Under these circumstances, holding the Bureau responsible for appellee’s imprisonment without reasonable opportunity to post bail and without a hearing is wholly disproportionate to the culpability of the Bureau’s mishandling of Ms. Little’s tax inquiry. Indeed, the Bureau’s negligence pales into insignificance when the predominant effect of these intervening causes is considered. I would hold, therefore, that the Bureau’s negligence was not the legal or proximate cause of appellee’s harm.

Appellant’s tortious act, in any event, was an act or omission of simple negligence. Its tortious conduct was not intentional, nor was it reckless or wanton. Appellee’s cause of action is not one for false arrest, it is an action to recover for embarrassment and hurt feelings resulting from an imprisonment allegedly caused by the negligent act of another. Whether damages for such embarrassment and hurt feelings, where there has been neither physical nor mental injury, can be recovered against one who has been guilty of simple negligence is a vexing issue.

As a general rule, damages for mental anguish or humiliation, where there has been no physical injury, can be recovered only in cases of tortious conduct committed intentionally, wantonly or recklessly. See: 22 Am.Jur.2d Damages § 195 (1965). The general rule is stated in Section 436A of the Restatement (Second) of Torts as follows: “If the actor’s conduct is negligent as creating an unreasonable risk of causing ... emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.” This section was adopted and followed in Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 128-129 , 437 A.2d 1236, 1239-1240 (1981). See also: Plummer v. Abbott Laboratories, 568 F.Supp. *30 920 (D.R.I.1983); Sypert v. United States, 559 F.Supp. 546 (D.D.C.1983) (applying Virginia law); Avallone v. Wilmington Medical Center, Inc., 553 F.Supp. 931 (D.Del.1982); White v. United States, 510 F.Supp. 146, 149 (D.Kan.1981) (applying Georgia law); Keck v. Jackson, 122 Ariz. 114, 115 , 593 P.2d 668, 669 (1979); Barnhill v. Davis, Iowa, 300 N.W.2d 104, 107-108 (1981); Payton v. Abbott Labs, 386 Mass. 540 , 437 N.E.2d 171 (1982). The reasons for disallowing damages for mental distress alone where the tortfeasor’s conduct has not been intentional, reckless or wanton are stated in comment b to Restatement (Second) of Torts § 436A as follows:

Emotional disturbance which is not so severe and serious as to have physical consequences is normally in the realm of the trivial____ It is likely to be so temporary, so evanescent, and so relatively harmless and unimportant, that the task of compensating for it would unduly burden the courts____ [Moreover] in the absence of the guarantee of genuineness provided by resulting bodily harm, such emotional disturbance may be too easily feigned, depending, as it must, very largely upon the subjective testimony of the plaintiff [and may] open too wide a door for false claimants who have suffered no real harm at all. [Finally,] where the defendant has been merely negligent, without any element of intent to do harm, his fault is not so great that he should be required to make good [for mere embarrassment].

The majority relies on Section 905 of the Restatement (Second) of Torts to sustain an award solely for mental distress in the instant case. That section, however, does not support the rule which the majority espouses. It does no more than recognize that in some causes of action, non-pecuniary harm, such as emotional distress, may be compensated. The Restatement does not pretend to create a cause of action for negligent infliction of emotional distress. This is readily apparent from comment c, which provides as follows:

*31 c. Emotional distress in general. The principal element of damages in actions for battery, assault or false imprisonment, as well as in actions for defamation, malicious prosecution and alienation of affections, is frequently the disagreeable emotion experienced by the plaintiff. In other cases, protection against disagreeable emotions not involving bodily pain is ordinarily given only in an action for infringement of some other interest. Thus one who insults or annoys another, thereby causing a third person to suffer fright or physical discomfort, is ordinarily not subject to liability to the third person unless bodily harm results. (See §§ 312 and 313). Whether there can be an action merely for harm to the feelings presents a question of the existence of the cause of action and is not a problem of the amount of damages.

Restatement (Second) of Torts § 905, comment c (1979).

The Pennsylvania decisions have addressed specific fact patterns without establishing a per se rule. In Niederman v. Brodsky, 436 Pa. 401 , 261 A.2d 84 (1970), the Supreme Court recognized a cause of action for emotional distress caused to one who had been placed in imminent danger of physical impact by a negligent force directed toward him. In that case, however, the emotional distress had manifested itself in “coronary insufficiency, coronary failure, angina pectoris and possible myocardial infarction.” Id., 436 Pa. at 403 , 261 A.2d at 84 . In Sinn v. Burd, 486 Pa. 146 , 404 A.2d 672 (1979), a plurality of the Court suggested a “zone of danger test” which would allow recovery for mental anguish sustained by a parent who witnessed the tortious killing of a child. Even there, however, the Court was reviewing an order sustaining a demurrer to a count in the complaint which alleged “mental pain and suffering resulting in severe depression and an acute nervous condition.” Id., 486 Pa. at 151 , 404 A.2d at 674 . In Speck v. Finegold, 497 Pa. 77 , 439 A.2d 110 (1981), the Court was called upon to determine whether parents could maintain an action against a physician whose negligence had resulted in the *32 wrongful birth of a child with neurofibromatosis. The Court held that such an action could be maintained and that damages for mental distress caused to the parents could be recovered. However, in Mason v. Western Pennsylvania Hospital, 499 Pa. 484 , 453 A.2d 974 (1982), the Court held that a parent could not recover damages for emotional distress because of the “wrongful birth” of a normal, healthy child.

In the instant case, there was neither direct injury to appellee as a result of appellant’s negligence nor physical injury resulting from the embarrassment which she felt upon being imprisoned. And yet, it is readily understandable that unfeigned embarrassment and humiliation will in all probability result to a person who has been unnecessarily imprisoned. Recognizing that humiliation in cases of imprisonment may be greater than in other cases of emotional distress and that negligence resulting in imprisonment may require a different rule, but also recognizing the serious consequences of such a rule, the Restatement (Second) of Torts has declined to take a position. By caveat to Section 35 and in comment g of Section 905, the Restatement has expressed no view on whether a plaintiff should be permitted to recover damages for harm to his or her feelings when deprived of freedom by the negligent act or omission of another person.

The majority has entered this vacuum and has held that recovery for emotional distress in such cases can be premised on negligence alone. By so doing, it has placed members of the legal profession, particularly the members of the criminal trial bar, at grave and, in my judgment, unnecessary risk. I find it unnecessary to establish such a cause of action, with its potential for mischief, in the instant case. Appellant’s negligence was so remote from, and so lacking in relative culpability in bringing about, appellee’s emotional distress that it was not the legal cause thereof. I would reverse and direct the entry of judgment n.o.v. in favor of appellant.

. A representative of the School District testified that Ms. Little’s name was on the tax rolls and that the District had mailed forms in December to all persons on its tax rolls.