Miller, T. v. Comcast Corp. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TYLER B. MILLER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
COMCAST CORPORATION : No. 387 EDA 2021
Appeal from the Order Entered January 22, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 200700382
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 22, 2021
Tyler B. Miller appeals from the order sustaining the preliminary
objections filed by the Comcast Corporation (“Comcast”) and dismissing his
Amended Complaint with prejudice. We affirm.
Miller commenced this action in July 2020 by the filing of a civil
complaint. He filed an Amended Complaint in October 2020 alleging he is “an
unpaid no contract intern” and that since 2009 Comcast has “use[d] him in
movies, TV shows, music, and commercials” and put him “in the worst possible
light.” Amended Complaint at ¶ 1. He lists movies allegedly made by Comcast,
including the Despicable Me series, Identity Theft, The Purge, A Million Ways
to Die in the West, Happy Death Day, Happy Death Day 2U, The Invisible Man,
and The Hunt, and seems to allege they are about him or made to threaten
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* Retired Senior Judge assigned to the Superior Court.
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him. He claims Comcast is “telling a story about [his] life” and “trying to kill
[him], or trying [to] get people to kill [him].” Id. at 9. He asserts a claim of
intentional infliction of emotional distress (“IIED”).
Comcast filed Preliminary Objections based on res judicata and collateral
estoppel,1 failure to state a claim, and that the allegations are facially
implausible. Miller filed an Answer to the Preliminary Objections.
The trial court issued an order sustaining the Preliminary Objections and
dismissing the Amended Complaint with prejudice, without explanation. Miller
filed a timely notice of appeal. The court ordered that Miller file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The order warned that “[a]ny issue not properly included in this Statement
shall be deemed waived.” Order, filed May 12, 2021.
Miller filed a Rule 1925(b) statement with the following three
paragraphs:
1. I am fearful for my life, in this situation, this is the first
time I have dealt with Preliminary Objections, the Court
could of done more to help my extremely abusive, and
dangerous situation, with Comcast.
2. The Trial Court has not sufficiently stated its basis, but
my educated guesses that the Trial Court accepted Comcast
Corporations vague, and bare Defenses. They didn’t explain
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1 Miller also filed a complaint against Comcast in federal court alleging IIED.
The federal district court dismissed the complaint with prejudice and the Court
of Appeals affirmed. See Miller v. Comcast, Civil Action No. 17-cv-5564,
2018 WL 10626475 (E.D. Pa. Feb. 16, 2018), aff’d, Miller v. Comcast, 724
Fed. Appx. 181 (3d Cir. 2018) (per curiam).
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their defense well, and they did not go much in depth, to
counter my defenses, from their Preliminary Objections.
3. My Evidence (pictures), and nonconclusory statements
was obvious and sufficient, the Judge could see then, and
can see now, their abuse of me, it was blatantly clear, that
Comcast did not have any explanation for.
1925(b) Statement, filed May 17, 2021.
Miller’s brief lists the following issues, verbatim:
1. Whether Tyler Miller’s claims, which has already been
fully litigated through two levels of the Federal Court
System, is barred by the doctrines of res judicata, and
collateral estoppel?
2. Whether Tyler Miller's claims Fails as a matter of law
because, even if my allegations are true, Comcast's alleged
conduct fails to rise to the level of "extreme and outrageous"
required for "Intentional Infliction of Emotional Distress"
under Pennsylvania law?
3. Whether Tyler Miller claims Fails as a matter of law,
because he has only pled bare, fantastical allegations, and
has failed to plead any facts that would allow this Court to
reasonably infer that he is entitled to relief?
Miller’s Br. at 2 (omitting suggested answers).2
The issues Miller asserts on appeal were not included in his Rule 1925(b)
Statement. He therefore waived them. Pa.R.A.P. 1925(b)(4)(vii). See also
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (finding any issues
not included in Rule 1925(b) statement are waived); Forest Highlands
Cmty. Ass’n v. Hammer, 879 A.2d 223, 226 n.2 (Pa.Super. 2005) (noting
Lord applies in civil and criminal cases).
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2Miller listed the issues contained Comcast’s Statement of Questions in its
Memorandum of Law In Support of Preliminary Objections, and answered each
with a suggested answer of “[a]bsolutely not.”
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Furthermore, even if he had not waived his issues, we would affirm. In
reviewing an order sustaining preliminary objections, we must determine
whether the trial court committed an error of law. Feingold v. Hendrzak, 15
A.3d 937, 941 (Pa.Super. 2011) (citing Haun v. Cmty. Health Sys., Inc., 14
A.3d 120, 123 (Pa.Super. 2011)). “Preliminary objections in the nature of a
demurrer test the legal sufficiency of the complaint.” Id. We must accept as
true “all material facts set forth in the challenged pleadings [and] all
inferences reasonably deducible therefrom.” Id. (citation omitted).
“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.” Id. (citation omitted).
To state an IIED claim, a plaintiff must plead that the defendant
intentionally acted with “extreme and outrageous conduct” causing severe
emotional distress. John v. Phila. Pizza Team, Inc., 209 A.3d 380, 383
(Pa.Super. 2019) (quoting Dawson v. Zayre Dep’t Stores, 499 A.2d 648,
649 (Pa.Super. 1985)); Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998)
(quoting Restatement (Second) of Torts § 46(1) (1965)). Outrageous conduct
is conduct “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized society.” Hoy, 720 A.2d at 754. Liability for
IIED “does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Miller v. Peraino, 626 A.2d 637, 641
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(Pa.Super. 1993) (quoting Kazatsky v. King David Mem’l Park, Inc., 527
A.2d 988, 995 (Pa. 1987)).
Miller contends Comcast is targeting and harassing him, but the
Amended Complaint does not support an IIED claim. The Amended Complaint
contains opinions, suspicions, and accusations but does not allege facts to
establish Comcast intentionally engaged in extreme and outrageous conduct
that caused Miller severe emotional distress. See Feingold, 15 A.3d at 942(affirming order sustaining preliminary objections where the complaint
contained “nothing more than conclusory[,] unsubstantiated suspicions and
allegations that [Appellees] engaged in improper and fraudulent conduct
intended to deprive [Appellant] of money to which he was allegedly entitled”).3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2021
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3 Because the court did not err in sustaining the demurrer, we would not need
to address Miller’s other issues, if he had not waived them.
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