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PLAINTIFF’S ANSWER TO DEFENDANTS’ PRELIMINARY OBJECTIONS

 

            Plaintiff, Rebecca R. Holzinger, by and through her attorney, David S. Dessen, Esquire, answers the Defendants’ Preliminary Objections as follows:

 

A.     FIRST OBJECTION

 

1.      Admitted.

 

2.      No response is required to the averment under the Pennsylvania Rules of Civil Procedure.  Rule 1006 speaks for itself.

 

3.      No response is required to the averment under the Pennsylvania Rules of Civil Procedure.  Rule 402 speaks for itself.

 

4.      Denied.  This averment is a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure.

 

5.      Admitted in part.  It is admitted that certain events occurred in Lancaster County.  It is specifically denied that the cause of action set forth in Plaintiff’s Complaint arose in Lancaster County.  The remainder of this averment is denied.

 

WHEREFORE, Plaintiff, Rebecca R. Holzinger, demands that Defendants’ First Preliminary Objection be overruled.

 

B.   SECOND OBJECTION

 

1.      Denied as stated.  Plaintiff’s Complaint speaks for itself.

 

2.      No response is required to this averment under the

Pennsylvania Rules of Civil Procedure.  Rule 1019 speaks for itself.

 

3.      Denied as stated.  Plaintiff’s Complaint speaks for

itself.

 

            WHEREFORE, Plaintiff, Rebecca R. Holzinger, demands

             that Defendants’ Second Preliminary Objection be

             overruled.

 

C.      THIRD OBJECTION

 

1.      Denied as stated.  Plaintiff’s Complaint speaks for itself.

 

2.      Denied.  This averment is a conclusion of law to which

no response is required under the Pennsylvania Rules of Civil Procedure.  By way of further answer, Plaintiff has not alleged a cause of action for battery and does not seek the application of the “discovery rule.”

 

3.      Denied.  This averment is a conclusion of law to which no response is required under the Pennsylvania Rules of Civil Procedure.  By way of further answer, the defense of the statute of limitations cannot be raised by Preliminary Objection.

 

WHEREFORE, Plaintiff, Rebecca R. Holzinger, demands that Defendant’s Third Preliminary Objection be overruled.

______________________________________________________

 

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ PRELIMINARY OBJECTIONS

 

I.        INTRODUCTION

 

On or about June 7, 2004, Plaintiff, Rebecca R. Holzinger

(hereinafter referred to as “Rebecca”) filed a Complaint (1) against her parents, Charles and Millicent Holzinger (hereinafter referred to as “Charles” and “Millicent”).  In her Complaint, Rebecca alleges that during 2001 Rebecca began to recall various disconnected disturbing events from her childhood. (2)  In January 2002, Rebecca sought and received professional mental health assistance from Evergreen Counseling Associates. (3)  Then, on or about April 14, 2002, Rebecca read an e-mail sent to her and other members of her immediate family by her former sister-in-law concerning certain activities of Rebecca’s brother, Tom. (4)  Over the next two weeks, Rebecca experienced sever emotional distress as she realized that some of the childhood events she had started to recall were connected to improper sexual contact by Charles. (5)  These incidents involved Rebecca waking up to discover Charles standing over her touching her breasts after having opened her pajama top, while Millicent was present. (6)  Rebecca’s severe emotional distress was the result of the earlier extreme and outrageous conduct of Charles and Millicent. (7)

            On or about June 28, 2004, the Defendants filed Preliminary Objections to Plaintiff’s Complaint.  The Defendants assert that the Complaint should be dismissed with prejudice because venue in Philadelphia County is improper, because the Complaint lacks specificity and because Plaintiff’s claim is barred by the statute of limitations.  For the reasons more fully set forth below, the Defendants’ Preliminary Objections have no merit and should be overruled.

 

 

1                   The litigation was instituted on April 13, 2004 by Writ of Summons.

 

2                    See paragraph 4 of the Complaint.

 

3                    See paragraph 5 of the Complaint.

 

4                    See paragraph 6 of the Complaint. 

 

5                    See paragraph 7 of the Complaint.

 

6                    See paragraphs 8 and 9 of the Complaint.

 

7                    See paragraphs 10 and 11 of the Complaint.

 

 

II.                ARGUMENT

 

A.      Venue Properly Lies in Philadelphia County.

 

Plaintiff is not, as the Defendants apparently believe, asserting a claim for battery.  Instead, Plaintiff’s Complaint sets forth a cause of action for Intentional Infliction of Emotional Distress (hereinafter referred to as “IIED”).  Pennsylvania has adopted the definition of IIED set forth in & 46 of the Restatement (Second) of Torts.  Section 46 states:

 

(1)    One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

 

(2)    Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

  (a)    to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

  (b)   to any other person who is present at the time, if such

distress results in bodily harm.

 

Kazatsky v. King David Memorial Park, 527 A.2d 988, 991-992 (Pa. 1987).  Therefore, to prove a claim of intentional infliction of emotional distress, the following elements must be established:

                       

(1)    the conduct must be extreme and outrageous;

(2)    it must be intentional or reckless;

(3)    it must cause emotional distress;

(4)    that distress must be severe.

 

Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. 1977), citing Hooten v. Penna. College of Optometry, 601 F.Supp. 1151, 1155 (E.D. Pa. 1984).  There can be no doubt that Plaintiff’s Complaint adequately alleges a cause of action for IIED.  Charles’ and Millicent’s conduct was intentional and can only be described as extreme and outrageous and as a result of the Defendants’ actions, Rebecca has suffered severe emotional distress.

           

            Rule 1006(a)(1) of the Pennsylvania Rules of Civil Procedure provides:

 

(a)    Except as otherwise provided by subdivisions (a.1), (b) and (c) of this rule, 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… (emphasis added)

 

In the recent case of Kring v. Univ. of Pittsburgh, 829 A.2d 673 (Pa. Super. 2003), the Superior Court considered the meaning of the phrase “…in which the cause of action arose…” in connection with a tort cause of action.  The Kring Court reviewed two older Pennsylvania Supreme Court cases, Emert v. Larami Corp., 200 A.2d 901 (Pa. 1964) and Openbrier v. General Mills, 16 A.2d 379 (Pa. 1940) and concluded that for purposes of venue, a cause of action in a tort case arises where the injury is inflicted.  Kring, 829 A.2d at 677.  As the Supreme Court explained in Openbrier:

 

To constitute a tort, there must be an injury; mere negligence establishes no right of action.  The place of wrong is, and the tort must be deemed to arise, where the injury is inflicted, not where the negligent acts leading to it were committed:  Mike v. Lian, 322 Pa. 353, 356, 185 A. 775, 777.  If the glass was in the package of flour as the result of defendant’s negligence, no ‘right of action’ (which is synonymous with ‘cause of action’:  Alpha Claude Neon Corp. v. Pennsylvania Distilling Co., Inc., 325 Pa. 140, 142, 188 A. 825, 826) accrued to Mrs. Openbrier until she ate the bread and thereby suffered injury.

 

Openbrier, 16 A.2d at 380.  See also, Action Industries, Inc. v. Wiedeman, 346 A.2d 798, 805 (Pa. Super. 1975).  In this instant case, Plaintiff’s injury is the severe emotional distress she has suffered as a result of the Defendants’ actions.  It is undisputed that her injury occurred in Philadelphia and, therefore, Plaintiff’s cause of action arose in Philadelphia County.  The Defendants’ Preliminary Objection as to venue should be overruled.(8)

            Assuming, arguendo that this court concludes that venue in Philadelphia County is improper, the remedy is not, as Defendants demand, the dismissal of Plaintiff’s Complaint, but rather transfer

of the instant action to Lancaster County.

 

8                    The Defendants, based upon their erroneous belief that venue does not lie in Philadelphia County, also argue that service upon them in Lancaster County is improper under Rule 402.  Since under Rule 1006(a) venue in Philadelphia is proper, service on the Defendants by the Sheriff of Lancaster County is also proper.

 

B.      Plaintiff’s Complaint Comports with Rule 1019

 

            Defendants contend that Plaintiff’s Complaint violates Rule 1019 because Plaintiff has not only failed to plead specifically the time when her purported cause of action arose but “she has not identified the day, year, decade, or century when her injuries were inflicted.”  Defendants are simply wrong.

            As set forth at some length above, Rebecca’s injury and cause of action arose when she began to suffer from severe emotional distress as a result of the Defendants’ earlier outrageous actions.  The Complaint specifically identifies that time as in or around April 14, 2002.  In Baker v. Rangos, 324 A.2d 498 (Pa. Super. 1974), the Superior Court considered at some length Rule 1019(f)’s requirement that time and place be pled with specificity.  The question before the Court was whether Rule 1019(f) was satisfied if a complaint generally specified the time certain conversations occurred and specified the place from which the property was taken.  The Baker Court observed that in circumstances where there can be no claim that some acts were authorized and some were not, the complaint satisfied the requirements of Rule 1019. 324 A.2d at 509.  In the instant case, there can be no claim that any of the complained of touching by Charles was authorized by Rebecca.  Depending on what is believed, either Charles touched Rebecca’s breasts or he did not, but as the court observed in Baker, “Greater specificity will not aid the defendants in answering the complaint.”  Id.  The Defendants’ second Preliminary Objection should be overruled.

 

C.     The Plaintiff has Stated a Legally Cognizable Claim

 

The Defendants’ third Preliminary Objection is premised

upon their erroneous belief that Plaintiff’s cause of action is one of battery.  However, as set forth above, Plaintiff is asserting an IIED claim and not a battery claim.

            As the Defendants acknowledge in footnote 6 to their Memorandum of Law in support of their Preliminary Objections, the statute of limitations is an affirmative defense and my not be raised by way of Preliminary Objections.  Relying on Dalrymple v. Brown, 701 A.2d 164 (Pa. 1997), the Defendants contend that because the discovery rule cannot be used to extend the statute of limitations in a battery cause of action, this Court should treat the Defendants’ statute of limitations objection as the legal equivalent of a demurrer.  This Court, however, does not have to decide whether the Defendants’ novel legal argument is correct or not, since the facts upon which the argument is based are incorrect.

            Rebecca’s IIED cause of action, as set forth in her Complaint, arose on or after April 14, 2002.  It was at that time that she began to suffer from severe emotional distress, the injury that resulted from the Defendants’ earlier outrageous conduct.  Unlike a battery, which is defined as a harmful or offensive contact, Levenson v. Souser, 557 A.2d 1081 (Pa. Super 1989), in which the injury and the prohibited conduct occur at the same time, the injury in an IIED claim, severe emotional distress, can manifest itself months or years after the underlying outrageous conduct.  In the instant case, Rebecca was able to determine within two years of her injury that her injury was caused by the actions of the Defendants.  The discovery rule tolls the statute of limitations between the time a plaintiff discovers an injury and through reasonable investigation, learns that the injury was caused by another.  Here, Plaintiff was able to determine the cause of her injury and institute suit within the statutorily prescribed two years.  Therefore, the discovery rule has no applicability.

            The Defendants have denominated their third preliminary objection a demurrer.  A demurrer admits as true all the well pleaded facts in the complaint and any reasonable inferences to be drawn therefrom, but not conclusions of law.  220 Partnership v. Philadelphia Elec. Co., 650 A.2d 1094 (Pa. Super. 1994), Georgina v. United Mine Workers of America, 572 A.2d 232 (Pa. Super. 1990), Clouser v. Shamokin Packing Co., 361 A.2d 836 (Pa. Super. 1976).  Preliminary objections can be sustained only in cases that are clear and free from doubt.  Any doubt as to the legal sufficiency of the complaint should be resolved in favor of overruling the demurrer.  220 Partnership, 650 A.2d at 1096, Clouser, 361 A.2d at 840.  The Plaintiff has set forth a cause of action for IIED in a timely filed lawsuit.  The Defendants’ Preliminary Objections should be overruled.

 

III.               CONCLUSION

 

For all of the above stated reasons, the Defendants’

Preliminary Objections should be overruled.

 

                                            Respectfully submitted,

 

                                            By:  David S. Dessen, Esquire

                                                    Dessen, Moses & Sheinoff

                                                    Attorney for Plaintiff

 

Dated:  July 19, 2004

 

 




 

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