By Max Mitchell, From The Legal Intelligencer

An ex-husband, who allegedly falsely advertised online that his
-wife was offering to provide sexual services, did not owe his ex-wife a sufficient duty to establish liability for negligent infliction of emotional distress, a court of common pleas judge has ruled.

The court also tossed a claim for intentional infliction of emotional distress because the ex-wife failed to allege specifically what the online advertisement said. It also threw out a claim against the ex-husband’s employer for invasion of privacy, an intentional tort, for having been pleaded as the product of the employer’s allegedly negligent reckless or careless conduct.

Earlier this month, Lawrence County Court of Common Pleas Judge Thomas M. Piccione granted several preliminary objections to the defendants in Kreitzer v. DeMatteo. Although the rulings sustained all of the defendants’ preliminary objections, Piccione allowed the plaintiffs several days to amend their complaint.

According to Piccione, plaintiff Amy Kreitzer alleged her ex-husband, defendant Michael J. DeMatteo, and his employer should be liable for negligently causing emotional injuries. However, Piccione said Kreitzer failed to establish that DeMatteo owed her a fiduciary or contractual duty, and the ex-spouse relationship does not automatically create a duty that would be sufficient to sustain her claims.

“Ex-spouses are not contractually bound to each other. Ex-spouses do not owe each other a duty to protect each other’s emotional well-being,” Piccione said. “Just because people who used to associate with one another possess information the misuse of which could lead to deep emotional harm does not create a relationship as contemplated to establish fiduciary duty. If the court were to take such a position, it would be compelled to find as a matter of law that a confidential, fiduciary relation exists between even casual friends. Such is not the state of the law.”

According to Piccione, Kreitzer alleged DeMatteo created a website that indicated she was offering sexual services and products. The site listed Kreitzer’s maiden name and home address, as well as accompanying maps and location identifiers, Piccione said. Kreitzer said the site derived from a computer on premises owned by defendant E.R. Advanced Ceramics, which employed DeMatteo.

Kreitzer maintained the statements on the site were false, offensive and outrageous. She further contended that, after the site was viewed by members of the public, it caused her mental suffering, shame, emotional distress and loss of reputation, among other things.

Kreitzer and her husband, Douglas Kreitzer, sued DeMatteo and E.R. Advanced Ceramics, alleging negligent and intentional infliction of emotional distress, loss of consortium, and false-light invasion of privacy.

Regarding DeMatteo’s employer, the plaintiffs contended the company knew or should have known that DeMatteo was misusing company equipment. They argued that E.R. Advanced Ceramics failed to protect the public or take safety precautions to prevent DeMatteo’s activity, and failed to reasonably inspect or provide controls of DeMatteo’s use of the computer.

The defendants filed preliminary objections, arguing the plaintiffs’ complaint lacked specifics and was legally insufficient to support the claims.

Piccione largely agreed with the defendants, and initially held the complaint failed to provide enough detailed information about the website for the defendants to prepare an adequate defense.

“The complaint fails to identify any time or range of time or location, other than on the Internet, whatsoever,” Piccione said. “The lack of these facts in the complaint renders the defendants unable to properly respond to it.”

DeMatteo had also argued that, along with failing to establish that he owed the plaintiffs a duty, the plaintiffs failed to assert any specific physical injuries, which is a requirement for asserting an intentional infliction of emotional distress claim.

Piccione said the Kreitzers did not make any allegations that the website had caused them to undergo any medical treatment, and that, while the plaintiffs’ description of DeMatteo’s conduct was outrageous, the claim lacked specifics.

“The plaintiffs do not set forth exactly what this website stated,” Piccione said. “This is not the type of information which would be brought out through discovery. The plaintiff should already have seen the website and its contents.”

Regarding the Kreitzers’ claims against E.R. Advanced Ceramics, Piccione noted the company had argued that the invasion of privacy claims were defective because they failed to show any intentional conduct on the part of the company.

Piccione said the Kreitzers only argued the company was negligent, careless or reckless, and that any theory that E.R. Advanced Ceramics was vicariously liable was based in negligence, and not intentional activities.

“The complaint in the instant case does not assert a separate claim against defendant ER for negligence as it relates to hiring or supervising its employees; rather, the plaintiffs assert the invasion of privacy claim against both defendants,” Piccione said. “As a result, this claim must fail.”

Susan M. Papa of Papa & Papa represented the plaintiffs. LeeAnn A. Fulena of Robb Leonard Mulvihill represented DeMatteo, and Joseph V. Lesinski of Marshall Dennehey Warner Coleman & Goggin represented E.R. Advanced Ceramics.

Papa and a secretary at both Robb Leonard and Marshall Dennehey did not return a call for comment.

Max Mitchell can be contacted at 215-557-2354 or [email protected]. Follow him on Twitter @MMitchellTLI.

(Copies of the 13-page opinion in Kreitzer v. DeMatteo, PICS No. 15-0951, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •

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