This section contains the nature of the case and procedural background.

Marsha (P) gave birth to twins, a boy and a girl, on June 27, 1981, in the sixth month of her pregnancy. The boy, Jeremy, died on June 29, 1981. Harvey (P) contacted his rabbi concerning burial arrangements and was referred to D. D informed Ps that land was available in the infant section of the cemetery and that only flat grave-markers were permitted in that area. The total charge quoted for a burial plot was One Hundred Eighty Dollars; One Hundred Dollars for the gravesite and Eighty Dollars for opening the grave. No further charges were discussed. Ps agreed to purchase a gravesite. Jeremy's funeral took place on June 30, 1981. At the time of interment, D asked Ps if he would like to make a settlement on the bill. Ps complied with the request. On July 7, 1981, the sister, Toby, died. Similar arrangements were made with D, and D again requested and received payment at the graveside. After the funerals, Ps expressed dissatisfaction with the location because they were in the remotest and most inaccessible area of the cemetery. Ps received a bill from D in late April of 1982 requesting One Hundred Forty-three Dollars for perpetual care and for sodding the burial plots. Ps were surprised to receive the bill. In mid-May of 1982, the grave-markers had been completed and would be installed upon payment of the balance due. The grave marker maker paid it. Ps received a card from the grave marker maker informing them that the marker had been installed. When they visited the cemetery on June 1, 1982, there was no marker on their children's grave sites. Ps talked to D and informed them that there was an unpaid balance on the bill for perpetual care and sodding. As for the markers, D had them and would not install them until the bill was paid. D demanded payment prior to installation. The Kazatskys left 'furious and extremely upset.' D called three days later and informed them the marker would be installed and they could hold their unveiling, but that there would be no care or maintenance of the grave-sites unless the bill was paid. The unveiling took place during a 'torrential downpour,' and when it was done and Ps were halfway up the road out of the cemetery, a car drove up towards them. D reminded Ps that there would be no care or maintenance unless the One Hundred Forty-three Dollars fee was paid. Ps found this 'infuriating and extremely upsetting.' Ps decided not to pay the disputed bill. There was crabgrass and weeds on the site, and by December of 1982, the marker had begun to tip and sink for lack of a foundation and surrounding sod. Ps sued in order to compel D to care for and maintain the burial plots. That count was later withdrawn by stipulation of counsel when D relented and began to maintain the gravesites. Ps' trespass count alleged fraudulent misrepresentation by D as to the location of the gravesites and the type of monument permitted, a claim which also has been abandoned on appeal. Ps also sued for intentional infliction of emotional distress in D's failing to care for the gravesites and demanding payments in addition to the purchase price of the plots. The case went to trial. Ps conceded on cross-examination that throughout their dispute, Ps did not seek medical or psychiatric counseling. D moved for a compulsory nonsuit. The motion was granted, and the court en banc refused to remove the nonsuit. The Superior Court affirmed, and Ps appealed.

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