DEFENDANTS REPLY TO PLAINTIFFS RESPONSE TO THEIR PRELIMINARY OBJECTIONS
Plaintiffs Answer to Defendants Preliminary Objections is rife with irrelevancies and legal assertions which defy the most basic parameters of tort law in Pennsylvania. Far from articulating novel legal theories, Plaintiff relies on legal precepts which have been specifically rejected by the appellate courts in Pennsylvania, and have no other basis in fact or law. Accordingly, for all the reasons stated herein, and in their Preliminary Objections, Defendants respectfully request that the Court dismiss Plaintiffs Complaint with prejudice.
A. Venue Lies In Lancaster County Only
Plaintiff has alleged that her parents committed tortious acts
against her in her fathers house in Lancaster, Pennsylvania at some point in her childhood.(1) She now contends, in response to Defendants Preliminary Objection challenging venue in Philadelphia County, that because her claim is not for battery, but for Intentional Infliction of Emotional Distress, and also because her distressing symptoms did not arise until decades after the fact while she was living in Philadelphia, her cause of action arose in Philadelphia County and that venue is proper there.
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 her argument. 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 of 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.(2)
Thus, regardless how she 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 by the Defendants, not where Plaintiff claims she first experienced the distressing symptoms. Pa. R.Civ. P. 1008. No matter where she was sitting in 2002 when she read the e-mail which allegedly triggered the emotional distress for which she now seeks compensation from her aged parents, she has not alleged that the Defendants committed any act against her in Philadelphia which could have produced that distress, however belatedly. If Defendants ever inflicted harm upon the Plaintiff, they did so in their Lancaster County home, as set forth in Plaintiffs Complaint.(3) Accordingly, there is no plausible theory under which venue could be proper in Philadelphia County. Pursuant to Rule 1008 of the Pennsylvania Rules of Civil Procedure, venue can only lie in Lancaster County.(4) Defendants first Objection must, therefore, be sustained.
1 Complaint at (PP) 4 & 8.
2 The Plaintiff also misconstrues the Pennsylvania Supreme Courts decision in 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, it inflicted harm at the point at which the tortious act was completed. See Plaintiffs Memorandum in Response to her Answer at 2 (Rebeccas severe emotional distress was the result of the earlier extreme and outrageous conduct of Charles and Millicent). Plaintiff has not alleged that the Defendants engaged in tortious conduct of any kind at any time or any place other than described in Paragraphs 4 and 8 of her Complaint. Thus, Emert is inapposite.
3 See Plaintiffs Answer to Defendants Preliminary Objections, (P) 5.
4 Plaintiff also alleges in Footnote 8 of her Answer that Defendants have asserted that service was improper in Lancaster County. Defendants have never made such an assertion. To the contrary, Lancaster County is the only place where the Defendants can be served. See Defendants Preliminary Objections, Section A, Paragraph 5. That is precisely why venue lies in Lancaster County, not Philadelphia County. Pa. R. Civ. P. 1006.
B. Plaintiffs Complaint Fails to Properly and Specifically Plead the Time When the Events Which Gave Rise to Her Cause of Action Took Place
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, in an attempt to overcome Defendants objection regarding her failure to plead her allegations of time with the requisite specificity. 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.(5) Plaintiff has utterly failed to allege when those acts took place.
Accordingly, for all the reasons set forth in Defendants Second Preliminary Objection, her complaint must be dismissed 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).
5 Thus, the time when Plaintiff alleges that she first experienced her emotional distress is irrelevant.
C. Plaintiffs Complaint Fails to State An Actionable Claim
Plaintiff freely admits that in order for her case to survive, the
Court would have to conclude that the discovery rule applies to claims of intentional infliction of emotional distress. See Plaintiffs Answer at 6-7. As set forth in Defendants Third Preliminary Objection and their Memorandum in support of those objections at 5-7, such a holding would require the Court to ignore controlling precedent from the Pennsylvania Supreme Court, which squarely rejects the applicability of the discovery rule to claims of recovered memories of childhood sexual abuse which occurred outside the statute of limitations. Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997).
Obviously, this Court is bound by the Supreme Courts ruling in Dalrymple. Nothing in Dalrymple indicates that the Courts ruling is limited to claims of battery. To the contrary, the plaintiff in Dalrymple brought claims for, among other things, intentional infliction of emotional distress. The Court dismissed all of her claims. See also Seto v. Willits, 432 Pa. Super. 346, 638 A.2d 258 (1994).(6) Accordingly, Plaintiffs Answer to Defendants Third Objection must also be rejected. Defendants Third Objection should be sustained.
6 Moreover, the same statutory provision, 42 Pa. C.S.A. & 5533, governs the statute of limitations for all tort claims, including, inter alia, both battery and intentional infliction of emotional distress alike.
WHEREFORE, for all the reasons set forth here and in Defendants
Preliminary Objections, the fate of Plaintiffs Complaint is clear and free from doubt. Defendants Preliminary Objections must be sustained. Defendants respectfully request that the Plaintiffs Complaint be dismissed.
By: Lorrie McKinley
Attorney I.D No. 41211
Attorney for Defendants
Dated: August 5, 2004