Cucinotti v. Ortmann
1960 Pa. LEXIS 417, 399 Pa. 26, 159 A.2d 216 (1960)
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Rule of Law:
Mere words, no matter how threatening, do not constitute a legally actionable assault. To be actionable, threatening language must be accompanied by an overt, affirmative act that places a person in reasonable apprehension of an immediate battery.
Facts:
- On or about November 20, 1955, at 440 East Girard Avenue in Philadelphia, Defendants threatened Plaintiffs.
- The Defendants stated they would assault the Plaintiffs with great force and violence, and would hit, beat, and strike them.
- The Defendants threatened that they would strike the Plaintiffs with blackjacks.
- At some point on that day, the Defendants brought into view and showed the Plaintiffs that they were carrying blackjacks.
- As a result of the Defendants' actions, the Plaintiffs suffered great emotional distress and fear that a battery would be committed against them.
Procedural Posture:
- Plaintiffs initiated an action for trespass (assault) against Defendants in the Court of Common Pleas of Philadelphia County.
- Defendant Ulrich filed preliminary objections to the original complaint, arguing it failed to state a cause of action.
- The trial court sustained the preliminary objections but granted Plaintiffs leave to file an amended complaint.
- Plaintiffs filed an amended complaint.
- Defendant Ulrich again filed preliminary objections to the amended complaint.
- The trial court sustained the second set of preliminary objections, dismissing the complaint and denying Plaintiffs leave to amend further.
- Plaintiffs (appellants) appealed the trial court's final order to the present court.
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Issue:
Do threatening words alone, without an accompanying overt act indicating an immediate ability and intent to carry out the threat, constitute a legally actionable assault?
Opinions:
Majority - Mr. Justice Cohen
No. Threatening words alone are insufficient to constitute an assault. To be legally actionable as an assault, threats must be accompanied by some affirmative act indicating that a battery will ensue immediately. The plaintiffs' complaint, even as amended to include the showing of blackjacks, fails because it does not allege that the weapons were displayed with such a show of force as to place the plaintiffs in immediate fear of harmful bodily contact. There is no alleged connection in time between the showing of the blackjacks and the threats of violence that would amount to an offer to commit a battery. Furthermore, Pennsylvania's well-settled rule requires physical injury or impact for recovery of damages for unintentional emotional distress, and while the rule may differ for intentional infliction, the pleadings here are legally insufficient to establish liability under that theory either.
Dissenting - Mr. Justice Musmanno
Yes (implicitly). The majority's holding is incorrect because it relies on the flawed legal theory that physical impact or battery is required for recovery. This policy of nonliability for harm caused by fright without physical contact is insupportable in law, logic, and elementary justice. Citing his dissent in Bosley v. Andrews, where a plaintiff suffered a heart attack after being chased by a bull that never touched her, the author reiterates his firm opposition to the established Pennsylvania rule and states he will continue to dissent from it.
Analysis:
This decision reaffirms the traditional, strict common law definition of assault in Pennsylvania, requiring a clear, overt act beyond mere verbal threats. It establishes a high pleading standard for plaintiffs, forcing them to allege specific physical actions that create a reasonable apprehension of immediate harm. The case also demonstrates the court's strong adherence to the 'physical impact' rule for claims involving emotional distress, making it difficult to recover for purely psychological injuries even when they result from intentional threats. This reinforces a clear line between threatening speech, which is not actionable as an assault, and threatening conduct, which is.
