dissenting.
I dissent to those portions of the majority opinion that affirm the trial court’s dismissal of counts I, II, IV, and V of Kristine Holt’s complaint.
Taken as a whole, Holt’s complaint pleads facts that, if proven, would be sufficient to support her claims for wrongful discharge and intentional infliction of emotional distress. To state a cause of action for intentional infliction of emotional distress, a plaintiff must demonstrate that the defendant, by extreme or outrageous conduct, intentionally or recklessly caused the plaintiff to suffer severe emotional distress. Johnson v. Caparelli, 425 Pa. Superior Ct. 404, 625 A.2d 668 (1993), petition for allowance of appeal denied, 538 Pa. 635, 647 A.2d 511 (1994). A complaint must at minimum set forth facts upon which the cause of action is based; the plaintiff need not identify the specific legal theories underlying the complaint. Burnside v. Abbott Laboratories, 351 Pa. Superior Ct. 264, 505 A.2d 973 (1985), petition for allowance of appeal denied, (No. 164 W.Dist.Alloc.Dkt.1986, filed December 18, 1986). It is the duty of the trial court to discover the cause of action from the facts alleged. Id.
Holt’s complaint alleges specific acts committed by the Commonwealth defendants with the approval and participation of NPTPC and individual members of the NPTPC Governing Board. The complaint specifically alleges that the Commonwealth defendants inflicted emotional distress by rescinding restroom accommodations and by publicly ousting Holt from the job center where she worked; it specifically alleges that NPTPC inflicted distress through its policy of referring to her as Rick/Kristine and by encouraging harassment and ridicule by her co-workers. Whether the acts alleged constitute outrageous conduct to support her claim is a question for a jury and should not be decided by the trial court on preliminary objections. Holt also states a claim against the Commonwealth defendants for intentional interference with her employment contract in that the ouster of Holt from the job center prevented her from doing her job.
I am not as certain as the trial court or the majority that Holt’s claims against the Com*1142monwealth defendants would fail under sovereign immunity. It is not clear that the Commonwealth defendants were acting within the scope of their employment when they committed the acts alleged. Although the complaint does refer to these defendants in terms of their government employment, Holt also alleges that these defendants acted contrary to Department of Labor policy as set forth in Executive Order 1988-1 and as reiterated in the Department’s letter ordering Holt’s reinstatement. Furthermore, the tone of the complaint suggests Holt’s belief that the defendants acted with malice. To the extent that Holt’s complaint may be inconsistent in this respect or to the extent that clarification of her causes of action is necessary, Holt should be permitted to amend her complaint. For these reasons, I would reinstate counts II, IV, and V of Holt’s complaint.
Holt’s complaint also states a discrimination claim under the PHRA against NPTPC and the Governing Board members. The trial court concluded that Holt is prevented from showing that she is handicapped or disabled under the PHRA even though no Pennsylvania court has addressed the issue of whether transsexualism constitutes a handicap or disability. Holt asserts that she falls within the statutory definition of a handicapped or disabled person in that she is “regarded as having such an impairment.” 16 Pa.Code § 44.4.
Although the Pennsylvania Supreme Court limited such claims in Civil Service Commission v. Human Relations Commission, 527 Pa. 315, 591 A.2d 281 (1991),1 it is not clear that Holt is prevented from establishing that she is regarded as having a physiological disorder. “Physiology” refers to the “essential and characteristic life processes, activities, and functions[,]”2 and physiological disorders cannot be said to exclude transsexualism. Furthermore, the dissenting opinion in Civil Service Commission suggests that the standard applied in that ease should not be applied “as an unwavering absolute” where differing factual considerations call for different specifications in proof. Id. at 323, 591 A.2d at 285. Holt should be permitted the opportunity to establish that she falls within the protected class. For these reasons, I would reinstate count I of the complaint.
FRIEDMAN, J., joins in this dissenting opinion.. "A person who attempts to make a prima facie case on the basis that he is regarded as having a physical or mental impairment, then, must show that he is regarded as having a physiological disorder, cosmetic disfigurement or anatomical loss which affects the body systems set out [in 16 Pa.Code § 44.4].” Id. at 320, 591 A.2d at 283.
. American Heritage Dictionary 989 (New College Edition, 1979).