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DEFENDANTS’ REPLY TO PLAINTIFF’S RESPONSE TO THEIR PRELIMINARY OBJECTIONS

 

            Plaintiff’s 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 Plaintiff’s Complaint with prejudice.

 

A.                 Venue Lies In Lancaster County Only

 

Plaintiff has alleged that her parents committed tortious acts

against her in her father’s 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 Appellant’s lawsuit, i.e., his damages, is sufficient to establish the occurrence from which Appellant’s 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 Plaintiff’s 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 Court’s 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 Plaintiff’s own allegations, it inflicted harm at the point at which the tortious act was completed.  See Plaintiff’s Memorandum in Response to her Answer at 2 (“Rebecca’s 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 Plaintiff’s 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 Defendant’s Preliminary Objections, Section A, Paragraph 5.  That is precisely why venue lies in Lancaster County, not Philadelphia County.  Pa. R. Civ. P. 1006.

 

B.                 Plaintiff’s 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 Plaintiff’s allegations were true, if they lack reference to time, place or nature of the defendant’s purported disruptive actions, they are not sufficient under Rule 1019; moreover, Plaintiff’s 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.                 Plaintiff’s 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 Plaintiff’s 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 Court’s ruling in Dalrymple.  Nothing in Dalrymple indicates that the Court’s 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, Plaintiff’s Answer to Defendant’s Third Objection must also be rejected.  Defendant’s 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 Plaintiff’s Complaint is “clear and free from doubt.”  Defendants’ Preliminary Objections must be sustained.  Defendants respectfully request that the Plaintiff’s Complaint be dismissed.

                                                                                                   Respectfully submitted,

 

                                                                                                   By:  Lorrie McKinley

                                                                                                   Attorney I.D No. 41211

                                                                                                   Attorney for Defendants

 

Dated:  August 5, 2004

 

 




 

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