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Thorsen v. Kaufmann's Dep't Stores - 55 Pa. D. & C.4th 565 (C.P. 2000)


In ruling on a preliminary objection in the nature of a demurrer, the court must accept as true all well-pleaded allegations in the complaint and all inferences reasonably deduced therefrom. Further, all doubts should be resolved against dismissal of the complaint. The court shall sustain preliminary objections and dismiss the complaint only in cases that are clear and free from doubt that the law will not permit recovery.


Plaintiff used a dressing room to try on an article of clothing. After trying on several pairs of jeans, the plaintiff left the dressing room wearing a pair of jeans that she had tried on intending to go to the sales floor to get a different size pair of jeans. After returning to the dressing room, she found that it was occupied, and the Kaufmann's sales clerk had her pants. The plaintiff alleged that a sales associate told her that she was "in trouble," and that her pants were being "held hostage" by the Kaufmann's sales associate and that she was prevented from leaving the area by these actions. The wife/plaintiff filed a complaint followed by an amended complaint which alleges that plaintiff was defamed by questioning her honesty and character (Count I), and that the Kaufmann's employees committed false imprisonment (Count II), assault and battery (Count III), intentional infliction of emotional distress (Count IV), and invasion of privacy (Count V) on the wife/plaintiff. The defendant has filed preliminary objections in the nature of a demurrer to each count of plaintiffs' complaint.


Were the facts sufficient to grant defendant’s preliminary objections in the nature of a demurrer to each count of plaintiffs' complaint?


(a) Count I, No; (b) Count II, No; (c) Count III, Yes; (d) Count IV, No; (e) Count V, No.


(a) The statements attributed to defendant Kaufmann's employee are of the kind that negatively affects the plaintiff's standing in the community, defendant's objections as to Count I must be denied; (b) A claim for false imprisonment arises if an actor (l) acted intentionally to confine an individual within fixed boundaries, (2) the intentional acts did directly or indirectly confine the individual, and (3) the individual was conscious of the confinement or is harmed by it. Accordingly, a question of fact exists for the fact-finder to decide if by her words and actions the Kaufmann's employee confined plaintiff Thorsen within the boundaries of the fitting rooms; (c) Words in themselves no matter how threatening, do not constitute an assault. The actor must take some affirmative action; the tort of battery occurs whenever an individual is actually subjected to a harmful or offensive contact; (d) In order to state a claim for intentional infliction of emotional distress, plaintiffs must allege facts that, if accepted as true, establish conduct by an actor (1) that is extreme and outrageous, (2) that is intentional or reckless, and (3) that causes severe emotional distress. Although there may not be one specific act, when read as a whole, there is conduct for a fact-finder to find outrageous conduct that was reckless and did cause emotional distress. Therefore, at this time, given the standards for preliminary objections, defendant's objections as to Count IV will be denied; (e) The plaintiff is given permission to wear store clothes onto the floor area, then is told she is in trouble, her clothes in the dressing room are removed and searched and there are some words exchanged between the wife/plaintiff and store employees which would be offensive to the plaintiff, all create questions of fact.

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