Amato v. Greenquist

                                        THIRD DIVISION
                                        April 16, 1997



1-94-2763)
1-95-0350) consolidated

DUANE F. AMATO,                         )    Appeal from
                                   )    the Circuit Court
     Plaintiff-Appellant,               )    of Cook County.
                                   )    
          v.                       )
                                   )
PASTOR VERNON C. GREENQUIST, an         )
individual, BISHOP SHERMAN HICKS, an    ) 
individual, METROPOLITAN CHICAGO SYNOD  )
OF THE EVANGELICAL LUTHERAN CHURCH OF   )
AMERICA, an Illinois not-for-profit          ) 
corporation, EVANGELICAL LUTHERAN       ) 
CHURCH IN AMERICA a/k/a ELCA, a foreign )  
not-for-profit corporation, and PEACE   )    
LUTHERAN CHURCH OF LAKE ZURICH, an      )    
Illinois not-for-profit corporation,    )    The Honorable
                                   )    Kenneth Gillis,     
     Defendants-Appellees.              )    Judge Presiding.


     Justice Leavitt delivered the opinion of the Court:
     Until late 1990, the plaintiff, Duane Amato, had thought
himself a happily married man.  According to a complaint he
filed, he and his wife, Linda, had been married for eighteen
years and had two children.  In 1987, the Amatos joined Peace
Lutheran Church of Lake Zurich (Peace), a fledgling parish headed
by the defendant, Pastor Vernon C. Greenquist.  The Amatos became
active in the church, and in October 1990, Linda began "faith
counseling" with Pastor Greenquist.  During November 1990, the
plaintiff and Linda began experiencing marital problems which
were accompanied by a "religious transformation" within her. 
Unbeknownst to Duane, during the course of faith counselling,
Linda had begun an affair with Pastor Greenquist, who was also
married.  On December 22, the plaintiff sought and began a course
of counselling with Greenquist.  Greenquist obliged Duane's 
request for counselling without informing him of the continuing
affair with Linda.
     Duane discovered the relationship between Greenquist and
Linda on February 15, 1991.  He notified church authorities,
including the defendant, Bishop Sherman Hicks, who was
Greenquist's immediate superior within the church hierarchy. 
Bishop Hicks suspended Greenquist, and Greenquist resigned his
position with Peace.  Bishop Hicks also suggested that Duane seek
professional counselling.  Soon after, Linda filed for a divorce
from the plaintiff.  Greenquist divorced his wife.  Greenquist
and Linda are now married.  
     The plaintiff's initial multi-count complaint against
Greenquist alleged intentional infliction of emotional distress,
breach of a fiduciary duty, clergy malpractice and common law
fraud.  He also sued Bishop Hicks, alleging breach of a fiduciary
duty and clergy malpractice.  Finally, alleging respondeat
superior, he sued Peace and the institutional hierarchy of the
Lutheran church, which consists of the Evangelical Lutheran
Church in America (ELCA) and the Metropolitan Chicago Synod of
the Evangelical Lutheran Church of America (Met Synod)
(collectively the "church defendants").
     Pursuant to motions filed by all of the defendants pursuant
to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 1994)), the trial judge dismissed most of the counts for
varying reasons stemming from the plaintiff's failure to state
causes of action, but most particularly because (1) Illinois does
not recognize the tort of clergy malpractice; and (2) the
relationship between cleric and parishioner is not a fiduciary
one.  The trial judge granted the plaintiff leave to amend, and
he filed a second amended complaint consisting of 14 counts
restating many of the same allegations, except that he
denominated the clergy malpractice claims against Greenquist and
Bishop Hicks as "psychotherapy malpractice (gross negligence)."
     The church defendants and Bishop Hicks renewed their section
2-615 motions to dismiss, and the trial judge granted them in
their entirety, dismissing 10 of the 14 counts of the complaint. 
Pastor Greenquist also renewed his section 2-615 motion to
dismiss, and in a separate order the trial judge dismissed, with
prejudice, all of the counts against him with the exception of
that alleging common law fraud.  The judge entered findings
pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)),
and the plaintiff seeks to overturn the dismissal, contending
that he has alleged facts sufficient to withstand a motion to
dismiss as to each of the counts dismissed.
     Because the counts at issue were dismissed pursuant to
section 2-615, we review the allegations of the complaint de novo
accepting as true all well-pleaded allegations and drawing all
reasonable inferences in a light most favorable to the plaintiff. 
T & S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080,
1083, 634 N.E.2d 306 (1994).  We will uphold the dismissal only
if "it clearly appears that no set of facts can be proved" which
will entitle the plaintiff to recover.  People ex rel. Daley v.
Datacom Systems Corp., 146 Ill. 2d 1, 11, 585 N.E.2d 51 (1991). 
Additional allegations pertinent to this appeal are as follows.
     ELCA is "a nationwide organization of churches of the
Lutheran faith."  Met Synod is "the local administrative 'branch'
of the ELCA and directly oversees the operation and function of
ELCA churches in the Chicago *** area, including PEACE."  Bishop
Hicks is the Met Synod's principal cleric.  He oversees the
operations of local ELCA churches in Chicago.
     Greenquist received his training as a minister and
counsellor through ELCA.  In 1990, he had approximately 11 years
experience in preaching and counselling.  His professional
counselling experience included marriage counselling, faith
counselling and general family counselling.  Greenquist "held
himself out as a skilled professional *** in matters of
counselling."  He, along with Peace and Met Synod, "encouraged
[congregants] to seek counselling from the church and its clergy
before seeking secular professionals in order 'to promote unity,
closeness and interdependence within members of the congregation'
(in accordance with stated church doctrine)."  Furthermore,
Greenquist "was acting within the scope and parameters of his
employment duties on behalf of [the church defendants] and in
furtherance of stated church doctrine when he counselled" the
plaintiff. 
     When the plaintiff first approached Greenquist regarding
marriage counselling, he had no knowledge of the ongoing
relationship between Linda and Greenquist.  Greenquist neither
referred the plaintiff to an independent counsellor nor indicated
that he would be unable to render "objective professional
assistance."  Rather, he "welcomed the opportunity to counsel
[the plaintiff] in order to further his own personal goals *** to
foster and promote his own sexual gratification, and to further
undermine the marital relationship of" the Amatos.  Furthermore,
Greenquist revealed to Linda confidences he learned from the
plaintiff during the counselling sessions in order to foster his
relationship with Linda.
     On March 5, 1991, the plaintiff advised Bishop Hicks of the
circumstances.  The plaintiff made an appointment for
"counselling" with the Bishop.  Linda accompanied him to this
session.  The plaintiff alleged that this session constituted
"professional counselling."  However, he also alleges that the
Bishop counselled him "in furtherance of church doctrine."  The
Bishop acted merely to protect the interests of the church.  He
"took no steps to remedy the situation" and "made no effort to
save the marriage."  Rather, he "counselled that [the plaintiff]
should get further 'professional' counselling but that Linda did
not need professional counselling because she 'had close
spiritual friends she could pray with."  
     In recent years, an increasing number of cases have been
brought by laity against clergy alleging abuse of the cleric-
parishioner relationship.  The plaintiffs in these cases
generally have denominated their claims "clergy malpractice." 
Our courts have refused to entertain such claims because the
first amendment's free exercise clause prohibits courts from
considering claims requiring the interpretation of religious
doctrine.  Baumgartner v. First Church of Christ, Scientist, 141
Ill. App. 3d 898, 904-906, 490 N.E.2d 1319 (1986).  To permit
claims for clergy malpractice would require courts to establish a
standard of reasonable care for religious practitioners
practicing their respective faiths, which necessarily involves
the interpretation of doctrine.  Baumgartner, 141 Ill. App. 3d at
906.
     Nonetheless, when doctrinal controversy is not involved in a
dispute between a claimant and a church, the first amendment does
not require judicial deference to religious authority.  Bivin v.
Wright, 275 Ill. App. 3d 899, 903, 656 N.E.2d 1121 (1995).  For
instance, "in disputes over church property, Illinois courts have
applied a 'neutral principles of law' approach, objectively
examining pertinent church characteristics, constitutions and
bylaws, deeds, State statutes, and other evidence to resolve the
matter the same as it would a secular dispute ***, using purely
secular analyses without relying on religious precepts."  Bivin,
275 Ill. App. 3d at 903.
     Applying these principles, the court in Bivin reinstated a
claim of negligent supervision against a church brought by a
husband and wife who had sued their reverend, the reverend's
superior and the church, alleging that during the course of
marital counselling, the reverend entered into a sexual
relationship with the wife which exacerbated the marital
problems.  The court noted that "the church defendant does not
claim that the alleged sexual misconduct of its minister was part
of its religious beliefs or practices or was in any way
sanctioned by the church."  Bivin, 275 Ill. App. 3d at 902. 
Thus, the court held that it could "not conclude from plaintiffs'
complaint that their cause of action *** will infringe upon, or
place a burden upon, the church's freedom to exercise its
religion."  Bivin, 275 Ill. App. 3d at 903.
     The decision in Bivin clarifies that Illinois courts may
entertain lawsuits alleging tortious conduct by churches and
their employees, so long as the resolution does not require
interpretation of either religious doctrine or religious duties
imposed on an individual by a particular church.  We believe the
approach announced in Bivin reflects a reasoned approach to
determining the justiciability of disputes of this nature.  It is
also the approach which other jurisdictions have adopted in
assessing the particular type of claims raised by the plaintiff
in this case.  
     In F.G. v. MacDonell, 677 A.2d 258, 264 (N.J. Super. A.D.
1996), the court permitted a claim of negligent pastoral care and
counselling against a cleric-counsellor who had "used his
position to sexually exploit the counsellee."  In so holding, the
court recognized the constitutional limitations on the judiciary
in such disputes, but nonetheless stressed that whether such a
claim is cognizable requires a determination that the court will
not need to evaluate "dogma or ritual, or other matters of
ecclesiastical concern."  MacDonell, 677 A.2d  at 263.  Likewise,
the Colorado Supreme Court has recognized that in the context of
spiritual counselling, the free exercise clause is relevant only
if the defendant can show that the conduct that allegedly caused
plaintiff's distress was in fact part of the belief and practices
of the religious group."  DeStefano v. Grabrian, 763 P.2d 275,
283-84 (Colo. 1988).  See also Sanders v. Casa View Baptist
Church, 898 F. Supp. 1169, 1174 (N.D.Tex. 1995).  Accordingly,
one court has observed that clerics cannot, using the shield of
the first amendment, "masquerade[] in the form of marriage
counsel[lors]" and then "prey" on a counsellee.  Sanders, 898 F. Supp.  at 1175.
     The plaintiff contends that he has properly pled claims of
"psychotherapy malpractice" against both Pastor Greenquist and
Bishop Hicks.  The defendants contend that these counts merely
restate the allegations of the clergy malpractice claim
previously dismissed by the trial judge -- claims the plaintiff
concedes are not cognizable in an Illinois court.  Although we
acknowledge that the second amended complaint is not, in
substance, radically different from the one previously dismissed,
we will not determine the justiciability of these counts based
upon the nomenclature used by the plaintiff in entitling the
counts.  That is, if the plaintiff's allegations, as a whole, can
be fairly construed as claims of negligence directed at conduct
other than the defendants' performance of their clerical duties,
his claims must be reinstated.  See 735 ILCS 5/2-612 (West 1994)
("No pleading is bad in substance which contains such information
as reasonably informs the opposite party of the nature of the
claim.")  On the other hand, if the factual allegations of the
claims lead only to the conclusion that they allege malpractice
by the defendants in their practice as members of the clergy,
that would require us to adjudicate them pursuant to a reasonable
cleric standard, hence rendering them non-justiciable as in
Baumgartner.
     The plaintiff's complaint clearly alleges that the plaintiff
sought marital counselling from Pastor Greenquist and that
Greenquist held himself out as a professional counsellor.  Yet,
the complaint also states that Greenquist "encouraged
[congregants] to seek counselling from the church and its clergy
before seeking secular professionals in order 'to promote unity,
closeness and interdependence within members of the congregation'
(in accordance with stated church doctrine)."  Furthermore,
Greenquist "was acting *** in furtherance of stated church
doctrine when he counselled" the plaintiff.  The plaintiff then
lodges six specific charges against Pastor Greenquist, all
premised on the allegation that the Pastor "failed to exercise
ordinary care" and "wilfully defrauded and deceived" the
plaintiff.  According to the complaint the Pastor (1) co-
conspired with the plaintiff's wife to undermine the marriage;
(2) did not divulge his conflict of interest; (3) failed to refer
the plaintiff to a neutral counsellor; (4) rendered bad advice to
further his own goals and sexual gratification; (5) divulged
confidences to Linda; and (6) disregarded "all indicia of the
transference and countertransference phenomena which normally
occurs in the course of psychotherapy."
     We note, initially, that each of these allegations are
based, in part, on an underlying allegation of fraud.  The trial
judge has permitted the plaintiff to replead a separate fraud
count, the allegations of which essentially duplicate the ones
above.  Fraud is a distinct cause of action in Illinois.  To that
extent, we do not believe the allegations of fraud are germane to
a count alleging professional negligence, be it that of a
psychotherapist or a cleric.  Cf. Williams v. Chicago Osteopathic
Health Systems, 274 Ill. App. 3d 1039, 1048, 654 N.E.2d 613
(1995) (recognizing differing elements and standard of proof
between medical malpractice and fraud.)  Therefore, we address
the count for malpractice solely to the extent it alleges that
the Pastor breached a duty of care owed to the plaintiff.
Furthermore, the allegation regarding the Pastor's conspiracy
with Linda also has nothing to do with the Pastor's counselling
relationship with the plaintiff, and, hence, we find that it
fails to state a claim for professional negligence.  
     As to the remaining allegations, were this case to involve
directly the sexual relationship between cleric and counsellee,
we might be inclined to consider the reasoning of the court in
MacDonell, 677 A.2d. at 263, which, as noted, permitted a claim
of clergy malpractice, stressing the "bright line between
counselling culminating in a sexual relationship with a
counsellee and other types of harm allegedly resulting from a
failed counselling relationship."  As in Bivin, the MacDonell
court considered that when sexual misconduct is involved, the
fear of treading on doctrinal matters is minimal, and to
establish a standard of care involved "no impenetrable barrier." 
MacDonell, 677 A.2d  at 264.     
     However, unlike in Bivin and MacDonell, the sexual liaison
here, while impacting upon the plaintiff, involved his wife, who
is not a plaintiff.  Furthermore, to the extent the plaintiff
alleges mishandling of the transference phenomenon, the Pastor
did so with regard to Linda.  Indeed, the plaintiff concedes in
his brief that the Pastor's sexual liaison with Linda is not the
focal point of his claim of negligent counselling.
     In essence, the plaintiff's complaint alleges that Pastor
Greenquist, while counselling him in accordance with duties
established by church doctrine, breached his duty as a
professional marriage counsellor.  We believe there is an
inherent contradiction in this core allegation which exposes the
problem with claims of malpractice against members of the clergy,
even when couched in terms of professional or psychotherapy
malpractice.
     Nonetheless, the plaintiff urges, relying on the allegations
of his complaint in conjunction with the decision in Horak v.
Biris, 130 Ill. App. 3d 140, 474 N.E.2d 13 (1985), that Pastor
Greenquist was required "to exercise the same professional care
expected of other professionals in the field of psychotherapy." 
In Horak, a licensed social worker counselled the plaintiff on
marital matters while he was engaged in a sexual relationship
with the plaintiff's wife.  The court recognized an action for
social worker malpractice.  However, central to the decision in
that case was that the defendant held himself out as a social
worker licensed by the State of Illinois.  As such, he was
required to exercise the degree of skill possessed by members of
that profession.
     The plaintiff's complaint does not allege that Greenquist is
either a licensed social worker, licensed psychotherapist or a
licensed marriage counsellor or that he held himself out as one. 
Indeed, during the time when the plaintiff's claims accrued, the
statutes in force authorizing the licensing of and the
establishment of standards for practitioners of these professions
specifically exempted religious practitioners from their ambit,
so long as they do not hold themselves out as qualified under the
acts.  E.g. 225 ILCS 55/15(d) (West 1994) (Marriage and Family
Therapy Licensing Act); 225 ILCS 20/4(2) (West 1994) (Clinical
Social Work and Social Work Practice Act).  Furthermore, to the
extent Illinois has, subsequent to the alleged actions involved
in this case, statutorily recognized an action for sexual
exploitation within the confines of a psychotherapeutic
relationship, it has limited recovery under that act to the
victims of the exploitation and, in addition, excluded
"counselling of a religious nature" from the definition of
"psychotherapy."  740 ILCS 140/1(e) (West 1992) (Sexual
Exploitation in Psychotherapy Act).
     Finally, although the plaintiff does allege that Greenquist
mishandled psychotherapeutic principles, such as the transference
phenomenon, he does not allege that Pastor Greenquist had either
formal training in and knowledge of these principles or any
counselling training outside of his training by the defendant
ELCA.  Indeed, the plaintiff's allegations presuppose that a
Pastor is under the same ethical obligations the State imposes
upon therapists it licenses.  We cannot impose such obligations
on a church within the constricts of the first amendment.  That
is the holding of Baumgartner, in which the court refused to
impose the standards of the licensed medical professional upon a
Christian Science practitioner.  Accordingly, we will not uphold
the plaintiff's complaint based upon the Horak decision.
     The plaintiff also urges that our supreme court's decision
in Corgan v. Muehling, 143 Ill. 2d 296, 574 N.E.2d 602 (1991),
permits his claims.  The plaintiff contends that, as in Corgan,
because he alleged that Greenquist held himself out as a
"professional counsellor," Greenquist may be held accountable for
his negligent counselling, generally.  Corgan involved the
allegations of a plaintiff involved in a sexual relationship with
the defendant psychologist.  Even accepting Corgan for the broad
proposition advanced by the plaintiff, we note again that the
allegations of the complaint indicate that Pastor Greenquist's
training as a counsellor was solely under the aegis of ELCA and
was, thus, religious in nature.
     The complaint does allege that the Pastor held himself out
as a "skilled professional" in matters of counselling, but it
also admits that the Pastor counselled in accordance with stated
church doctrine and encouraged members to seek counselling within
the church "before seeking secular professionals."  The plaintiff
alleged that Pastor Greenquist provided marriage counselling to
him in accordance with church doctrine.  That is not the same as
a situation in which a plaintiff alleges that "a particular
church *** also offer[s] purely secular counselling as a service
to members of its congregation or to a broader segment of the
population in need of such services."  Dausch, 52 F.3d  at 1433. 
We believe that given the particular facts alleged by the
plaintiff, a trial court would be required to investigate the
nature of counselling, as well as the training of counsellors,
within this particular church.  That is not permitted in Illinois
(Baumgartner v. First Church of Christ, Scientist, 141 Ill. App.
3d 898, 490 N.E.2d 1319 (1986)), or in any other jurisdiction. 
See Dausch, 52 F.3d  at 1432 n.2.
     This area requires, as the MacDonell court recognized, that
a bright line be drawn between those claims actionable and those
which impinge on first amendment guarantees.  In the factual
context of this case, we believe that "line" requires us to
uphold the trial judge's ruling.  At core, the plaintiff has
alleged that Pastor Greenquist is a very bad counsellor who tried
during counselling sessions to hide an illicit affair with the
plaintiff's wife.  Yet, according to the complaint, he was
performing the counselling itself in the context of duties
imposed upon him as a cleric by church doctrine.  And, as the
plaintiff concedes, this case is about the counselling.  We
believe that to permit the plaintiff's claims would effectively
erase the bright line espoused by the MacDonell court, a line we
agree must be drawn.  Accordingly, the trial judge did not err in
dismissing the count for psychotherapy malpractice against Pastor
Greenquist.
     As to the plaintiff's allegations of malpractice against
Bishop Hicks, we hold that the plaintiff has not properly alleged
a counselling relationship, let alone an actionable duty.  In
response to the plaintiff's request that Bishop Hicks render
counselling services to him as a result of Pastor Greenquist's
activities, the Bishop responded that the plaintiff should seek
professional counselling.  The plaintiff fails to allege any
facts that support a conclusion that this was a "counselling"
session.  Rather, his complaint centers on the Bishop's refusal
to counsel him.  First, we believe that the allegations clearly
indicate that the plaintiff approached the Bishop within the
context of his duties as the head of the church.  As such, the
claim is clearly non-justiciable.  Furthermore, we fail to
perceive how the Bishop's response is actionable, even if he was
acting in order to effect damage control, as the plaintiff
alleges.  We also conclude that the disciplinary action that
Bishop Hicks subsequently did or did not take with regard to
Pastor Greenquist is, as regards this case, outside any
relationship he had with the plaintiff.  The trial judge properly
dismissed the psychotherapy malpractice claim against Bishop
Hicks.
     The plaintiff also alleges that both Pastor Greenquist and
Bishop Hicks breached a fiduciary duty owed to the plaintiff.  In
the count against the Pastor, the plaintiff assigns, as breaches
of the duty, the same allegations, save the mishandling of the
transference phenomenon, as he did in his count for malpractice. 
That is, that the Pastor "wilfully defrauded" him by undermining
the marital relationship; divulging confidences to Linda; not
revealing his conflict of interest; and rendering advice against
the plaintiff's best interest.
     Under Illinois law, a fiduciary relationship is recognized
to exist when "a special confidence [is] reposed in one who, by
reason of such confidence, must act in good faith and with due
regard to the interests of the person reposing such confidence." 
Estate of Osborn, 128 Ill. App. 3d 453, 455, 470 N.E.2d 1114
(1984).  Such a relationship may exist as a matter of law, "or it
may be the result of a more informal relationship--moral, social,
domestic or even personal in its origin."  Estate of Osborn, 128
Ill. App. 3d at 455.
     Applying this definition in Dausch v. Rykse, the United
States Court of Appeals for the Seventh Circuit held that
Illinois law, in conjunction with the first amendment, prohibited
the recognition of an action for breach of fiduciary duty
premised upon the counselling relationship between a cleric and a
church member with whom the cleric had been sexually involved. 
Dausch, 52 F.2d  at 1438
     The Dausch court reasoned that in order to determine such a
duty would require the court
          "to define a reasonable duty standard and to
     evaluate [the cleric's] conduct against that standard,
     an inquiry identical to that which Illinois has
     declined to undertake in the context of a clergy
     malpractice claim and one that is of doubtful validity
     under the Free Exercise Clause.  It is clear that
     Illinois would not entertain a claim for breach of
     fiduciary obligation under the circumstances alleged
     here."  Dausch, 52 F.3d  at 1438.  
However, other jurisdictions which have faced this question have
had "no difficulty" in concluding that a cleric's sexual activity
with a counsellee or the spouse of a counsellee may be used by
the counsellee as the basis to state a cause of action for breach
of fiduciary duty.  DeStefano v. Grabrian, 763 P.2d 275, 289
(Colo. 1988).  See also MacDonell, 677 A. 2d at 264-65; Sanders
v. Casa View Baptist Church, 898 F. Supp 1169 (N.D.Tex. 1995).    
     Although we agree with the courts in these jurisdictions
that the relationship between a cleric and parishioner reflects
many aspects of a fiduciary one, we hold that under Illinois law,
a contention that a cleric has breached his duty as a fiduciary
is not actionable.  We believe that when a parishioner lodges
such a claim, religion is not "merely incidental" to a
plaintiff's relationship with a defendant, "it [is] the
foundation for it."  H.R.B. v. J.L.G., 913 S.W.2d 92, 99 (Mo.
App. 1995).  The fiduciary relationship is inescapably premised
upon the cleric's status as an expert in theological and
spiritual matters.  The plaintiff's complaint confirms this.
     In lodging his claim for breach of fiduciary duty, the
plaintiff alleged that in divulging confidences to the Pastor, he
relied on the Pastor's "representations concerning his
professionalism, training, skill, and experience, as well as
[his] commitment to God and religion."  We consider it imprudent
for a court to attempt to dissect the secular from the sectarian
in this equation.  While we would consider unlikely the Pastor's
ability to establish that his behavior in this case was
religiously motivated (cf. H.R.B., 913 S.W.2d at 98-99), the
plaintiff's relief lies in other well-recognized causes of
action, such as the count alleging intentional infliction of
emotional distress, which we reinstate, as well as the fraud
count which the trial judge permitted the plaintiff to replead
and which repeatedly finds its way into every allegation of both
malpractice and breach of fiduciary duty raised by the plaintiff. 
Thus, we affirm the dismissal of the counts for breach of
fiduciary duty as against both Pastor Greenquist and Bishop
Hicks.  Furthermore, in light of our holding in this regard, we
affirm the dismissal of counts seven, nine, twelve and thirteen
of the plaintiff's complaint in that they are all claims of
respondeat superior against the church defendants arising out of
the alleged breaches of fiduciary duty by Pastor Greenquist and
Bishop Hicks.  
     The trial judge also dismissed the plaintiff's count
alleging intentional infliction of emotional distress against
Pastor Greenquist.  In order to plead such a claim, the plaintiff
must allege facts establishing that the defendant's conduct was
"extreme and outrageous and that the defendant either intended
his conduct to inflict severe emotional distress or knew that
there was a high probability that the conduct would cause such
distress."  The plaintiff also must allege that the conduct, in
fact, caused severe emotional distress.  McGrath v. Fahey, 126 Ill. 2d 78, 86, 533 N.E.2d 806 (1988).
     A complaint for intentional infliction of emotional distress
may stand "only where the conduct complained of [is] so
outrageous 'as to go beyond all bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civil
community.'"  Pavilion v. Kaferly, 204 Ill. App. 3d 235, 245, 561 N.E.2d 1245 (1990).  We may assess the outrageousness of a
defendant's actions based, in part, upon a "defendant's improper
use of a position of power which gives him the ability to
adversely affect the plaintiff's interests."  Kolegas v. Heftel
Broadcasting Corp., 154 Ill. 2d 1, 22, 607 N.E.2d 201 (1992).
     The plaintiff alleged that he sought counselling "concerning
his failing marriage."  Pastor Greenquist acted in an extreme and
outrageous manner by counselling the plaintiff while the Pastor
was involved with Linda Amato and by counselling in a manner
designed to "covertly undermine" the couple's marriage.  The
plaintiff discovered the relationship between Greenquist and
Linda when he found correspondences the two had been exchanging,
including Christmas and Valentine's Day cards, as well as
"enclosed love letters."  Greenquist told the plaintiff that his
relationship with Linda was "God's will."  The plaintiff
concludes that as a result of the Pastor's actions, he has
suffered "depression, despair, insomnia, anxiety, nervousness and
emotional trauma."
     We believe these allegations satisfy the plaintiff's
pleading burden.  The defendant allegedly used his position to
learn confidential information, which he divulged to Linda in an
effort to destroy the plaintiff's marriage.  The plaintiff has
alleged that the Pastor's actions were intentional and that he
has suffered various and severe emotional distresses as a result. 
Cf. Kolegas, 154 Ill. 2d  at 21-25.  Therefore, we vacate the
portion of the trial judge's order dismissing count II of the
plaintiff's complaint.
     The remaining counts are against the church defendants and
sound in respondeat superior based upon the intentional
infliction of emotional distress by Greenquist, as well as
emotional distress occasioned by Bishop Hicks.  Under the
doctrine of respondeat superior, an employer may be liable for
the torts of his servant when such acts are committed in the
course of employment and in furtherance of the employer's
business; however, the employer is not liable if the employee
commits the acts solely for his own benefit.  Giraldi v. Lamson,
205 Ill. App. 3d 1025, 1030, 563 N.E.2d 956 (1990).
     As to the church defendants' liability for Pastor
Greenquist's actions (counts VIII, X and XIV), we hold that the
complaint fails to allege that the Pastor's actions in deceiving
and otherwise counselling the plaintiff were for anything other
than his own benefit.  For instance, paragraph 25 of the common
allegations states, "PASTOR did not reject DUANE'S requests for
counselling or refer said request to an independent third
party***, but rather welcomed the opportunity to counsel DUANE in
order to further his own personal goals."  Furthermore, paragraph
26 of the common allegations states that "PASTOR *** counselled
DUANE against DUANE'S best interests in order to further PASTOR'S
own material goals, to foster and promote his own sexual
gratification, and to further undermine the relationship of his
parishioners."  Because these core factual allegations underlie
all of the plaintiff's respondeat superior counts involving
Pastor Greenquist, the plaintiff cannot establish liability on
this basis.
     Count XI is entitled "respondeat superior-negligent
infliction of emotional distress," and is based upon the actions
of Bishop Hicks.  In stating this claim, the plaintiff
specifically incorporates the allegations against the Bishop in
count V, which was a claim for psychotherapy malpractice.  We
agree with the church defendants that the essence of this claim
is one for respondeat superior based upon psychotherapy
malpractice, a claim which we have already rejected with regard
to Bishop Hicks.  Therefore, that claim may not stand against the
church defendants.
     For all of the forgoing reasons, we affirm the judgment of
the circuit court in dismissing all of the counts in the
plaintiff's second amended complaint, with the exception of count
II for intentional infliction of emotional distress against
Pastor Greenquist, which we reinstate.
     Affirmed in part, vacated in part and remanded for further
proceedings.
     McNamara, J., and Rakowski, J., concur.