BRIEF OF APPELLEES

affirm that decision. Plaintiff bases her claim for intentional infliction of emotional distress upon alleged events from her childhood. Plaintiff reached the age of majority in 1972, at which time any cause of action she had for claims emanating from her childhood expired. 43 Pa. C.S.A. & 5524 (pre-1984). She alleges, however, that she did not suffer emotional distress until 2002, because only then did she recover her memory of the traumatic events to which she attributes her distress. She thereby attempts to evade the inevitable impact of the Pensylvania Supreme Courts decision in Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997), which clearly dictates that her claim be dismissed. As a matter of law, it is the point of causation which triggers the statute of limitations, not when the Plaintiff subjectively remembers the purportedly causative events or becomes upset by them. See also Seto v. Willits, 638 A.2d 258 (Pa. Super. 1994).

Additionally, although Plaintiff claims that the traumatic events upon which she predicates her claim occurred in Lancaster, Pennsylvania, she improperly invokes venue in Philadelphia County on the theory that she was in Philadelphia, thirty-two years after the fact, at least, when she read an e-mail which triggered her memories. Just as the statute of limitations is governed by when the traumatic events occurred, venue is dictated by where they occurred. Pa. R. Civ. P. 1006. Although the lower court did not reach this issue, it constitutes an independent basis for affirming its decision to dismiss Plaintiffs complaint. Likewise, Plaintiff has not alleged when during her childhood the supposed causative events took place. Accordingly, she has failed to sufficiently plead allegations of time in conformance with Rule 1019 (f) of the Pennsylvania Rules of Civil Procedure. This, too, provides an independent basis for affirming the lower courts decision.

In this case the Appellant, Rebecca Holzinger (hereafter Plaintiff), alleges that

in April, 2002, thirty-two years after she reached the age of majority, she recalled disconnected events of childhood abuse by her parents, the Appellees herein, Charles H. and Millicent B. Holzinger (hereafter Defendants) which, she contends, her memory had suppressed until then.(1) In April, 2004, pursuant to a Writ of Summons, she commenced this damage action against her parents for intentional infliction of emotional distress. RR at 7 & 9. On August 3, 2004, the Philadelphia Court of Common Pleas dismissed the Complaint with prejudice because it was filed beyond the two year statute of limitations. RR at 2a.

As the court below correctly concluded, controlling Pennsylvania law dooms Plaintiffs Complaint. Thus, she purports to espouse a novel legal theory which directly contradicts it. Contending that she could not have brought her claim for intentional infliction of emotional distress until her symptoms belatedly appeared, she abandons Pennsylvania law and rests her claim entirely upon miscellaneous cases from North Carolina. See Plaintiffs Brief at 12.

1 According to Plaintiffs Complaint, during 2001 Rebecca began to recall various disconnected events from her childhood. Ms. Holzinger, who was born on April 9, 1954, turned 18 in 19[6]2. Complaint at (P) 4-9, Reproduced Record at 11a. Citations to the Reproduced Record are hereafter referred to as RR at _.

1. Plaintiffs Statute of Limitations Expired When She Reached the Age of Majority

The statute of limitations for tort claims in Pennsylvania is governed by 42 Pa. C.S.A. & 5524. Pursuant to that provision, claims for battery and for intentional infliction of emotional distress (hereafter IIED) are subject to the same two-year limitations period. The statute begins to run as soon as the right to institute and maintain a suit arises. Dalrymple, supra, 549 Pa. at 223.

In 1984, the Pennsylvania legislature amended the statute of limitations provision to allow the tolling of legal claims during a plaintiffs minority. Under the new statute, plaintiffs have two years after they turn eighteen to bring claims which arose before then. The revised statute, however, does not apply retroactively to persons who, like the Plaintiff, reached the age of majority prior to 1984. Dalrymple, supra. 549 Pa. at 222, 223 n. 3; Redenz v. Rosenberg, 360 Pa. Super. 430, 520 A.2d 883, appeal denied, 516 Pa. 635, 533 A.2d 93 (1987).

Plaintiff was born on April 9, 195[2].(3) Her claim for IIED, therefore, expired on April 9, 1972. Even if, arguendo, the modified statute did apply to Plaintiffs claims, they still expired, at the very latest, two years after she turned eighteen, on April 9, 197[4]. Dalrymple, supra, 549 Pa. at 221. Thus, regardless of when during her childhood Plaintiffs cause of action allegedly arose, (and she provides no clue as to when this might have been), it is time barred and not cognizable in any Pennsylvania Court. 42 Pa. C.S.A. & 5524; Dalrymple v. Brown, 549 Pa. 217 (Pa. 1997).

In order to avoid the unfairness that would result to plaintiffs who could not possibly know, even with the use of due diligence, that a tort had been committed against them, the Pennsylvania Supreme Court has adopted a discovery rule to toll the time when a plaintiff is charged with notice that she has suffered a legal injury and that her statute of limitations has begun to run. Where the existence of the injury is not known to the complaining party and such knowledge cannot be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably ascertainable. Dalrymple, 549 Pa. 223.

The discovery rule is an objective standard which is limited in both scope and application. Id., 549 Pa. at 232; E.J.M. v. Archdiocese of Philadelphia, 622 A.2d 1388 (Pa. Super. 449 1993). Only when the injury itself is such that no amount of vigilance would enable the plaintiff to detect it does the discovery rule rescue an otherwise moribund cause of action.(4) Conversely, both the Supreme Court and this Court have reiterated that where the existence of the injury would be readily discernible by a reasonable person using due diligence during the limitations period, the discovery rule is not applicable. Dalrymple, supra.; see also Seto v. Willits, 638 A.2d 258 (1994). Accord Bailey v. Lewis, 763 F. Supp. 802 (E.D. Pa. 1991). The party attempting to invoke the rule bears the heavy burden of establishing the inability to know of the injury despite the exercise of reasonable diligence. Dalrymple, supra, 549 Pa. at 224; Luhan v. Mansmann, 1997 WL 634499 (E.D. Pa.) at 3. Whether this standard has been satisfied is measured objectively not by reference to the individual plaintiff, but to a reasonable person exercising due diligence. Id.(5)

Long before this case, other plaintiffs attempted to use the theory of repressed memory to resuscitate damage claims for psychic injuries which expired before they could recall the traumatic events which purportedly caused them. In Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997), the Pennsylvania Supreme Court refused to extend the discovery rule to those cases. On numerous occasions prior to Dalrymple, this Court considered the same issue and arrived at the same conclusion. Pearce v. The Salvation Army & Crouch, 449 Pa. Super. 654, 674 A.2d 1123 (1996); Seto v. Willits, supra.; see also E.J.M. v. Archdiocese of Philadelphia, supra.; A.McD. v. Rosen, 423 Pa. Super. 304, 621 A.2d 128 (1993), Bowser v. Guttendorf, 541 A.2d 377 (pa. Super. 19880. (declining to apply discovery rule to claims for psychic injury attributable to childhood sexual assault where memory of the assault was not suppressed, but plaintiffs failed to recognize until after the limitations period had elaspsed that the assault caused their injuries). Plaintiffs novel legal argument, therefore, is nothing more than a disingenuous misrepresentation of controlling legal authority.(6)

In Dalrymple, as in this case, the plaintiff brought allegations of sexual abuse against the defendant many years after she reached the age of majority, seeking to recover damages for her mental injuries. Among other things, she brought claims for battery and IIED, both of which had expired long before under the applicable statute of limitations. Like the plaintiff here, she attempted to rescue her untimely claims on the theory that she was not on notice of her injury until she recovered the memory of it.(7)

The Pennsylvania Supreme Court flatly rejected this legal theory, and dismissed all of the plaintiffs claims, including her claim for IIED.(8) The Supreme Court agreed with the reasoning which previously led this Court to the same result.(9) It unambiguously and emphatically held that an incapacity unique to the plaintiff, such as repressed memory, does not trigger the discovery rule. 42 Pa. C.S.A. & 5533. The Court explained that [t]o require an alleged tortfeasor, no matter how heinous the allegations, to respond to claims of an injury many years after the fact, would allow the exception known as the discovery rule, to swallow the rule of law embodied within the statute of limitations itself. Dalrymple, 549 Pa. at 230.(10) The Court emphasized that the rule was intended to be applied in very limited circumstances, and was designed to objectively balance the interests of injured plaintiffs and alleged tortfeasors faced with [] stale claims that, due to the passage of time and the fading memory, may be indefensible. Id. This, after all, is the fundamental purpose of a statute of limitations. By requiring aggrieved parties to bring their claims within a certain time of the injury, these provisions ensure that the passage of time does not damage the defendants ability to adequately defend against claims made. Dalrymple, supra, 549 Pa. at 223. Equally important, they protect the integrity of the judicial system by ensuring that the truth-finding process is not compromised by the proof problems which inherently complicate the accurate disposition of stale claims. Lujan v. Mansmann, 1997 WL 634499 (E.D. Pa.) at 3.(11) As the Court correctly observed, those purposes are particularly at risk where the only evidence of the actual injury is held in the memory of the accuser, which also may be fading or confused. Id.

The policy concerns of greatest import to the Supreme Court in Dalrymple are even more powerful here, because in this case the Plaintiff claims she experienced emotional distress for the very first time decades after the injuries were allegedly inflicted or set in motion. Cf., Seto (plaintiff claimed to have suffered emotional distress dating back to the traumatic event, but did not know the reason for the distress until she recovered her memory of the trauma). Proof of causation in a case such as this can never be more than tenuous. Any number of things in the Plaintiffs adult life could have produced her distress.(12) Indeed, after the passage of so much time, it is impossible to plausibly connect Plaintiffs distress with anything the Defendants did or did not do during her childhood. Forcing the Defendant to dredge through their own long lives and the Plaintiffs, as well, in defense of a claim which can never be proven, is fundamentally unfair.(13) Indeed, this is the precise reason the the Pennsylvania legislature saw fit to adopt a statute of limitations for IIED claims, and also why the Supreme Court refused to extend the discovery rule to expired claims for psychic injury. Dalrymple, supra. This Court has no latitude to do otherwise. See also Seto, supra, 422 Pa. Super. At 346.(14)

4 For instance, surgical injuries and chemical exposures which do not creaste physical symptoms until years later might trigger the discovery rule. Romeo and Son, Inc., v. P.C. Yezak & Son, Inc. 539 Pa. 390, 652 A.2d 830 (1995) (structural defects in a building); Love v. Raymark Industries, Inc., 430 Pa. Super. 155, 633 A.2d 1185, appeal denied, 538 Pa. 658, 648 A.2d 1185 (1994) and Trieschock v. Owens Corning Fiberglass Co., 354 Pa. Super. 263, 521 A.2d 863 (1987) (illness caused by exposure to asbestos); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) (surgical sponge left in abdomen during operation but not discovered for nine years); Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959) (sub-ground damage to telephone lines and sewer pipes). For the most part, the Pennsylvania appellate courts have limited the application of the discovery rule to chemical exposures and negligence claims which produced physical injuries that remained hidden from view until after the limitations period expired. They have never allowed the discovery rule to toll the statute of limitations in a case involving intentional infliction of emotional distress, or for any other type of claim involving a psychic injury.

5 Under Pennsylvania law, statutes of limitations are not tolled as a result of the

claims arise, even where repressed memories are involved, at the time of the battery which sets them in motion occurs. See e.g., Dalrymple, supra, 549 Pa. at 223 (dismissing claim for intentional infliction of emotional distress); Seto v. Willits, supra (same); Bowser v. Guttendorf, supra (same).

7 The only thing novel about Plaintiffs case is that she premises her belated lawsuit on repressed memory but claims not to be invoking the discovery rule. However, because she claims not to have been injured until she discovered her repressed memories, and those memories relate to events which admittedly transpired many years before the statute of limitations expired, the only way Plaintiffs claim can be analyzed under Pennsylvania law is through the prism of the discovery rule. See Dalrymple, supra., 549 Pa. at 223. Plaintiffs concession that the rule is not applicable merely supports the lower courts decision to dismiss her meritless Complaint. Brief at 13 n. 12.

8 Thus, Plaintiffs attempt to evade the application of Dalrymple and its inexorable consequences by couching her claim as one of IIED rather than a battery, is unavailing. As the lower court correctly recognized, the Supreme Court never intended for its ruling in Dalrymple to be easily side-stepped by a semantic pleading device. See also Seto v. Willits, 432 Pa. Super. 346, 638 A.2d 258 (1994). The lower court, this Court, and the Pennsylvania Supreme Court have all recognized that claims for psychic injury premised on childhood abuse emanate from a battery. Thus, whether or not the Plaintiff seeks damages for the offensive touching itself, the basis for her claims of emotional distress flows directly from that original injury (the engine which drives this appeal is appellants assertion that she could not reasonable have known of her injury until that moment in time when she recovered her repressed memory of that event). Dalrymple, 549 Pa. at 223. Because in a typical battery all the elements of the offensive touching will be present and ascertainable to the plaintiff at the time of the touching itself, the Supreme Court recognized that it would be absurd to argue that a reasonable person, even assuming for the sake of argument, a reasonable six year old, would repress the memory of a touching so that no amount of diligence would enable that person to know of the injury. Dalrymple, supra, 701 A.2d at 170. Accord, Bowser v. Guttendorf, supra.

established a rule of law forever foreclosing application of the discovery rule to cases of alleged repressed memory. Dalrymple, supra, 701 A.2d at 173.

opportunities to develop reliable evidencethe entire legal proceeding will thus be reduced to being a exercise in pure speculation. Old claims also are more likely to be spurious than new ones Thus, stale claims present major evidentiary problems which can seriously undermine the courts ability to determine the facts. By precluding stale claims, statutes of limitation increase the likelihood that courts will resolve factual issues fairly and accurately. Dever-Gorka v. Hosler, 26 D & C 4^th 448, 455, 457 (1994).

admission, does not refer in any way to either of her parents. Complaint at (P) 6, RR at 11a.

13 Because emotional distress is the most subjective type of injury, and has the

highest potential for abuse, Plaintiff is required to objectively prove, through competent medical evidence, both the existence of severe distress and that the distress was caused by the Defendants. Kazatsky v. King David Memorial Park, 515 Pa. 83, 527 A.2d 988 (1987). The potential for abuse is particularly acute here, as Plaintiff admits that she did not suffer an injury at all until more than thirty years after the abuse was purportedly inflicted. Even if Plaintiff proves her factual allegations, she cannot establish causation when she admits that her parents actions produced no injury, severe or otherwise, for decades.

14 As this Court observed in Seto, if there is to be any departure from the clear

Plaintiffs effort to distinguish her case from Dalrymple by asserting that she had no claim until, decades after she alleges she was abused, she finally experienced emotional distress, is not a novel argument, but it is an absurd one. Brief at 11.(15) If accepted by the Court, it would essentially do away with the statute of limitations for claims of IIED, whether or not the plaintiff bases her claims on repressed memories. Indeed, under this theory, even plaintiffs with clear and uninterrupted memories of tortious events would be under no duty to bring their actions until they subjectively deem their distressing symptoms to exist at all or to be severe, regardless how remote in time from the point of causation that might occur.(16) The magical accrual of such claims after years of dormancy would be wholly within plaintiffs control, and defendants, like the Holzingers here, could be called on decades after the fact to recall events and refute allegations from the far distant past, eons after relevant and exculpatory records and witnesses have vanished from the earth. Moreover, each time the Plaintiff claims to recover a new memory, she would be entitled to initiate a new claim based on the same alleged decades-old battery. Thus, Plaintiffs statute of limitations would extend into perpetuity. These were the very concerns that motivated the Supreme Court in Dalrymple, and this Court before it, not to mention the Pennsylvania legislature, to choose an objective standard for determining the statute of limitations for IIED claims. Dalrymple, 549 Pa. at 230.

Like the plaintiff in Dalrymple, the Plaintiff here is too late. As a matter of law, her claim accrued when she experienced the alleged abuse. She is deemed to have had knowledge within the limitations period of the battery which allegedly set into motion her distressing symptoms, intentionally or otherwise.(17) Although the Plaintiff could have alleged multiple causes of action based on the events she describes, they were all extinguished, at the very latest, two years after she reached the age of majority. See Section II-B, infra.

15 This court has specifically rejected the Plaintiffs argument that a new limitations period begins for each new manifestation of an injury when there has been no subsequent conduct by the defendant. Shadle v. Pearce, supra, 430 A.2d at 685-6. See also Lujan v. Mansmann, supra, citing Orozco v. Childrens Hospital of Philadelphia, 638 F. Supp. 280, 282 (E.D. Pa.). By definition, a theory which directly flouts Pennsylvania law is the very antithesis of a novel claim. Dalrymple, supra; Shadle v. Pearce, 287 Pa. Super. 436, 430 A.2d 683 (1981).

16 Indeed, Plaintiffs argument draws no distinction between claims of IIED based on repressed memories and memories which were never repressed. Brief at 11. Pennsylvania law is to the contrary. Dalrymple, supra. See also, E.J.M., supra (dismissing battery claims where plaintiff alleges he recalled the abuse, but did not know until many years later that he had been injured by it).

17 Plaintiff admits, in fact, that she was aware of the events at the time they allegedly occurred. In Paragraph 8 of her Complaint Plaintiff claims to have confronted her mother about her fathers alleged actions. RR at 10a. Accordingly, even if the Supreme Court, arguendo, had left any room for a plaintiff to invoke the discovery rule based on repressed memory, it would not be applicable here, e.g., E.J.M., supra.

Plaintiff has alleged that her parents committed tortious acts against her in her fathers house in Lancaster, Pennsylvania at some point in her childhood.(18) She contends, however, that venue is proper in Philadelphia County because her claim for IIED did not arise until decades after the fact while she was living in Philadelphia.

Plaintiffs improper assertion of venue is based upon the same faulty reasoning that dooms her statute of limitations claim. Both arguments are premised upon the incorrect notion that her cause of action accrued when she read an e-mail on a Philadelphia computer and first recognized her symptoms of emotional distress. If she has a claim at all, however, it arose when and where the events which supposedly precipitated that distress took place. The statute of limitations is controlled by when those events occurred. Venue is controlled by where they occurred. This result is dictated by Rule 1006 of the Pennsylvania Rules of Civil Procedure, which states, in pertinent part:

As the abuse Plaintiff alleges occurred in Charles house, Rule 1006 straightforwardly dictates that venue can only lie in Lancaster County. Neither Defendant can be personally served in Philadelphia County and none of the causative events which Plaintiff alleges took place there.(19) Where Plaintiff was sitting when she remembered the alleged abuse is entirely irrelevant.

In Kring v. University of Pittsburgh, 829 A.2d 673 (Pa, Super. 2003), upon which the Plaintiff, herself, relies, the Pennsylvania Superior Court specifically rejected the very argument Plaintiff advances here. There, as in this case, the plaintiff attempted to draw a false distinction between the infliction of harm by the defendant, and his own experience of that harm, in an effort to assert venue in an improper forum. The Court admonished that the cause of action arises where the ultimate point of origin of all the activities which gave rise to it were transacted by the defendant. The Court specifically declined to hold that one part of Appellants lawsuit, i.e, his damages, is sufficient to establish the occurrence from which Appellants cause of action arose Id., 829 A.2d at 678.(20) See also Kravatsky v. King David Memorial Park, 515 Pa. 183, 190, 527 A.2 988 (1987) (the gravamen of the tort of IIED is the outrageous conduct on the part of the tortfeasor).

Thus, regardless how Plaintiff characterizes her cause of action, be it battery, intentional infliction of emotional distress, or any other tort, venue is dictated by the place where her injuries were inflicted or set in motion by the Defendants, not where she claims she first experienced the distressing symptoms. Pa. R. Civ. P. 1006. As set forth in Plaintiffs Complaint, the emotional distress for which she now seeks compensation from her aged parents was inflicted or set in motion, if ever, in Lancaster County.

service could be made upon the Defendants only by 1) handing them a copy of the summons or complaint; 2) by handing a copy of the summons or complaint to an adult member of the family who resides at their residence in Columbia, Pennsylvania in Lancaster County. Indeed, the summons which commenced this action was served upon them at their Sylvan Retreat home in Lancaster County, by a Lancaster County sheriff.

Emert v. Larami Corp., 414, Pa. 396, 200 A.2d 901 (1964), by confusing the negligence claim in that case with the intentional conduct which has been alleged here. In Emert, a case which involved a claim for damages based on a defective product, the defendant did not inflict harm until its negligently manufactured product malfunctioned and injured the plaintiff. Here, by contrast, the Defendants allegedly tortious conduct was intentional. According to the Plaintiffs own allegations, Defendants inflicted that harm when they abused her in their Lancaster home. Complaint at (P) 11, RR at 11a. Additionally, Emert involved a claim for physical, not psychological injuries. Thus, Emert is inapposite.

of time, place, and special damage shall be specifically stated. This provision ensures fundamental fairness to defendants, and is of critical importance to their ability to prepare a defense. Here, Plaintiff has not only failed to plead specifically the time when her purported cause of action arose; she had not indentified the day, year, decade, or century when her injuries were inflicted.(2)

In an attempt to overcome her absolute failure to plead her allegations of time with the specificity required by the Rules of Civil Procedure, Plaintiff relies on the same false distinction between the time and place in which she alleges she first experienced her emotional distress, and the time and place in which she alleges that her parents committed tortious acts against her. For all of the reasons set forth above, Plaintiff is wrong about where and when her cause of action arose. If Plaintiff has a cause of action against her parents, it arose, as a matter of law, when they engaged in tortious conduct against her.(3) Plaintiff has utterly failed to allege when those acts took place. Indeed, other than the vague reference to her childhood and therefore presumably sometime prior to April 9, 1972 Defendants are left to guess the decade, much less the year, when Plaintiff claims that they abused her.(4) It is impossible for the Defendants to prepare a defense to allegations which could have occurred at any time before Plaintiff turned eighteen.(5)

Accordingly, Plaintiffs complaint is legally deficient pursuant to Rule 1019 (f) of the Pennsylvania Rules of Civil Procedure. See e.g., Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974) (regardless of whether the Plaintiffs allegations were true, if they lack reference to time, place or nature of the defendants purported disruptive actions, they are not sufficient under Rule 1019; moreover, plaintiffs allegations must be specific enough to allow the defendant to determine the applicability of a statute of limitations defense).

3 Thus, the time when Plaintiff alleges that she first experienced her emotional

5 For instance, Plaintiffs father, who is an anthropologist, was occasionally out

of the country during her childhood. It is important for him to know when the alleged events took place so that he can ascertain his own whereabouts at the time Plaintiff contends he was at home in Lancaster engaging in child abuse.

For all the reasons stated herein, Defendants Charles and Millicent Holzinger respectfully request that the Court affirm the decision of the Court of Common Pleas.