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DEFENDANTS’ PRELIMINARY

OBJECTIONS TO PLAINTIFF’S 

          COMPLAINT

 (Please note this word processing system does not have legal keys so

I will be using a (P) for paragraph and an ampersand for case law.)

 

INTRODUCTION

 

            Plaintiff Rebecca Holzinger (hereafter “Plaintiff”), a

resident of Philadelphia, has commenced this action in

Philadelphia County Court of Common Please against her

parents, Charles H. and Millicent B. Holzinger (hereafter

“Defendants”), both of whom live in Lancaster County,

Pennsylvania.  Plaintiff, who is now fifty (50) years old, has

based her claim on alleged recovered memories from some

unspecified point in her childhood.  Pursuant to Rule 1028

of the Pennsylvania Rules of Civil Procedure, and for all the

reasons set forth below and in the accompanying Memorandum

of Law, Defendants bring these Preliminary Objections based

on improper venue, failure to specifically plead allegations

relating to time, and failure to state a legally cognizant claim. 

They respectfully request that the Court dismiss Plaintiff’s

Complaint in its entirety and with prejudice.

 

A.  FIRST OBJECTION:  VENUE DOES NOT LIE IN

PHILADELPHIA

 

Pursuant to Rule 1006 of the Pennsylvania Rules of

Civil Procedure, Defendants object to Plaintiff’s

Complaint on the basis of improper venue. 

In support of their Objection, Defendants aver

the following:

 

1.      Charles and Millicent Holzinger both reside

at 365 Sylvan Retreat Road, Columbia, Pennsylvania,

which is located in Lancaster County, Pennsylvania.

 

2.      Pursuant to Rule 1006 of the Pennsylvania

Rules of Civil Procedure, “… an action against an

individual may be brought in and only in a county

in which the individual may be served or in which

the cause of action arose or where a transaction or

occurrence took place out of which the cause of

action arose or in any other county authorized by law.”

 

3.      Pursuant to Rule 402 of the Pennsylvania

Rules of Civil Procedure, original service may be made

upon the Defendants only by 1) handing them a copy

of the summons or complaint; or 2) handing a copy

of the summons or complaint to an adult member of

the family who resides at their residence.

 

4.      Charles H. and Millicent B. Holzinger can be

personally served only in Lancaster County.  They

cannot be served in Philadelphia County.

 

5.      The alleged events which give rise to

Plaintiff’s cause of action took place in Lancaster

County, sometime before 1972. (1)

 

            WHEREFORE, venue does not property lie in

Philadelphia County.  Defendants respectfully request that the

Court dismiss this action in its entirety on the basis of

improper venue.

____________________________________________________________ 

1                    Paragraph 4 of the Plaintiff’s Complaint states: 

“During 2001 Rebecca began to recall various disconnected

events from her childhood.”  These alleged events purportedly

took place in “Charles’ house.”  Complaint at (P) 8.  Ms. Holzinger,

who was born on April 9, 1954, turned 18 in 1972.

 ______________________________________________________________________

 

B.      SECOND OBJECTION:  THE PLAINTIFF’S

ALLEGATIONS REGARDING THE TIME WHEN HER

CAUSE OF ACTION AROSE ARE NOT PLED WITH

SUFFICIENT SPECIFICITY

 

Pursuant to Rule 1019 of the Pennsylvania Rule of

Civil Procedure, Defendants object to Plaintiff’s

Complaint because she has failed to allege with

specificity the time when the events took place upon

which she premises her cause of action.  In support of

this Objection, Defendants aver the following:

 

1.      Plaintiff premises her claim upon two

alleged events that occurred at some unspecified

time during her “childhood.”  Complaint at

(P) 4; 8 & 9.

 

2.      Rule 1019 of the Pennsylvania Rules of

Civil Procedure require that “{a}verments of time,

place, and special damage shall be specifically stated.”

 

3.      Plaintiff, who was born on April 9, 1954, and

therefore reached the age of majority on April 9, 1972,

has not specified when during her childhood the

acts which she alleges in Paragraphs 8 and 9 of her

complaint took place.

 

            WHEREFORE, as Plaintiff has failed to plead

specifically the time when any of the events took place upon

which her purported cause of action arose, her Complaint

must be dismissed. (2)

_______________________________________________________ 

2                    Regardless of when during her childhood Plaintiff’s

cause of action arose, it is time barred and not cognizable

in any Pennsylvania Court.  Dalrymple v. Brown, 549 Pa.

217, 701 A. 2d (1997).  See also 42 Pa. C.S.A. & 5524

(actions for “battery” must be brought within two years). 

See also infra at Section C (Defendants’ Third Preliminary

Objection) and Defendants’ Memorandum of Law at 5.

__________________________________________________________________

 

C.      THIRD OBJECTION:  THE PLAINTIFF HAS

FAILED TO STATE A LEGALLY COGNIZABLE

CLAIM (DEMURRER)

 

Pursuant to Rule 1019 of the Pennsylvania Rules

of Civil Procedure, Defendants object to Plaintiff’s

Complaint because she has filed to allege a legally

cognizable claim.

 

1.       Based on two alleged events that occurred at

some unspecified time during her “childhood,”

Plaintiff has sought compensatory and punitive

damages against the Defendants totalling $100,000.00.

Complaint at (P) 4: 8-9.

 

2.       Plaintiff’s claim depends for its legal viability

upon application of the “discovery rule” in a manner

which specifically contradicts the governing law of the

Commonwealth, as articulated by the Pennsylvania

Supreme Court in Dalrymple v. Brown, 549 Pa,

217, 701 A.2d 164 (Pa. 1997).

 

3.      Pursuant to the Pennsylvania Supreme Court’s

controlling opinion in Dalrymple, supra, Plaintiff’s

claim is barred as a matter of law, and is not legally

cognizable under any of the facts which she has

articulated in her Complaint, or which she could

articulate in any subsequent pleading.

 

WHEREFORE, as Plaintiff has failed to plead a

legally sustainable cause of action, her

Complaint must be dismissed.

 

                                                         LORRIE McKINLEY, ESQUIRE

                                                         Counsel for Defendants

 

DATE:  June 28, 2004

 

            MEMORANDUM OF LAW TO FOLLOW TOMORROW




 

|Please Page Down| |Welcome| |CONTACT US| |THE CABLE GUY| |GRAND JURY| |LANCASTER LYNCHING - 1| |LANCASTER LYNCHING - 2| |LANC. LYNCHING - 3| |LANC. LYNCHING - 4| |LANC. LYNCHING - 5| |LANC. LYNCHING - 6| |DR. FRAUD GETS SMART| |TRIBUNE DAYS - 3| |KRUSHINSKI - 1| |KRUSKINSKI - 2| |KRUSHINSKI - 3| |NOTES - FEB 7-13| |BRIEF OF APPELLEES| |LANCASTER| |TRIBUNE DAYS| |TRIBUNE DAYS - 2| |HOW I GOT SMART/PARODY| |APPEAL/SUPERIOR COURT| |CHARLIE'S PROMISE - 3| |JUDGE'S OPINION| |DEFENDANTS' REPLY| |APPEAL| |PLAINTIFF'S ANSWER| |MEMORANDUM OF LAW| |PRELIMINARY OBJECTIONS| |MAN ON THE SIDEWALK| |HOLZINGER v. HOLZINGER| |THE LETTERS| |TWO EMAILS| |DIPLOMATS 2| |DIPLOMATS SPEAK| |PLANNED PARENTHOOD| |CHARLIE'S PROMISE-1| |CHARLIE'S PROMISE - 2| |DR. FRAUD ON CLYDE| |LETTERS/EDITOR| |NAME CHANGE| |TWILIGHT ZONE| |JOURNEY| |A SIMPLE, SAD STORY| |A FAMILY TRAGEDY| |A FAMILY TRAGEDY-2| |A FAMILY TRAGEDY - 3| |A FAMILY TRAGEDY - 4| |TO MY BROTHERS AND SISTERS| |PUPPIES 4 SALE| |PUPPIES - 2| |ECLIPSE| |CLYDE'S COFFEE| |TALKBACK| |KASEY1| |OPEN LETTER| |ALICE 1| |Best/Worst 3-7 to 13| |Best/Worst 1-16 to 1-10| |REVIEW/POIST ON HARPER| |EMILY LETTER| |NEIGHBORS LETTER| |FAMILY LETTER - 2| |Ph.D DOCUMENT| |TROUBLE'S COMING| |CORTNEY FRY - 1| |CORTNEY FRY - 2| |UNGODLY SILENCE| |HEATHER NUNN - 1| |CORTNEY FRY - 3| |FAMILY LETTER - 3| |ALICE POEMS| |DALRYMPLE V. BROWN| |SUPERIOR COURT| |F&M & INCEST| |NOTES - 1| |NOTES - 2| |NOTES -3| |NOTES - 4| |NOTES - 5| |NOTES - 6| |NOTES - 7| |FAMILY LETTER - 2| |RACIAL INCIDENT| |SUPREME COURT| |SUPREME COURT 2| |LETTER TO JOHN FRY| |TALKBACK| |THANK YOU - LIP NEWS| |CORTNEY FRY - GRAND JURY| |LOUIS FARINA - FIND JURY| |TERRIBLE POLICE WORK| |DO ME A FAVOR| |GAMBLING CRACKDOWN| |GODVOICEHOLZINGER| |VERBAL - TOM CRUISE| |MAYOR STEALING CABLE?| |TED BYRNE| |THE BYRNE GUY|