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OPINION

New, J                                                                         

October 18, 2004

 

            The trial court property granted Defendant’s preliminary objection to dismiss on the grounds that the statute of limitations had run and Plaintiff failed to state a legally cognizable cause of action.

 

PROCEDURAL AND FACTUAL HISTORY

 

            Rebecca Holzinger (“Plaintiff”), fifty years old, initiated a cause of action against her parents, Charles and Millicent Holzinger (“Defendants”) for intentional infliction of emotional distress.  On April 14, 2002, Plaintiff, while living in Philadelphia, received an e-mail from her former sister-in-law regarding activities of Plaintiff’s brother.  As a result of the e-mail, Plaintiff began to recall her childhood, in Lancaster, Pennsylvania, and certain improper sexual contacts for her father, Defendant Charles Holzinger.  Plaintiff is now experiencing emotional distress from dealing with what her father, Defendant Charles Holzinger, had done to her when she was a child.

 

Plaintiff filed a complaint on February 8, 2004.  Defendants filed preliminary objections for improper venue, failure to plead a cause of action with requisite specificity, and failure to state a legally cognizable claim.  This court granted Defendants’ preliminary objection for failure to state a legally cognizable claim and dismissed the case.  Plaintiff now appeals the dismissal.

 

LEGAL ANALYSIS

 

            Plaintiff, in her fifties, claims to have suffered from repressed memory relating to actions that occurred during her childhood.  Plaintiff asserts that the memories regarding her childhood surfaced as a result of an e-mail from her  sister-in-law.  Plaintiff has filed a cause of action for intentional infliction of emotional distress against her parents, as a result of the actions that allegedly took place during her childhood.

           

Defendants argue that the plaintiff has failed to state a cause of action.  They allege that any claim of intentional infliction of emotional distress has been long barred by the statute of limitations.  42 Pa.C.S.A. &5524.

           

Plaintiff, in her response to preliminary objections, argues that the injury did not manifest itself until the e-mail was received and therefore, the statute of limitations should be subject to the discovery rule.(1)

           

Our Supreme Court has addressed the identical issue raised by Plaintiff.  Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997).

           

In Dalrymple, the Court rejected Plaintiff’s claim that she could not reasonably have known of her injury until that moment in time when she recovered her repressed memory.  Plaintiff, in our case, attempts to circumvent the Dalrymple holding by alleging that her injury did not manifest itself until that moment in time when she recovered her repressed memory.

           

This argument is pure semantics.  As in the Dalrymle case, Plaintiff was the alleged victim of a sexual assault (a battery) as a youngster.  She is alleging injury as a result of that battery.

 

Notwithstanding the psychological evidence, appellant’s position cannot be cognizable under Pennsylvania law.  The very essence of the discovery rule in Pennsylvania is that it applies only to those situations where the nature of the injury itself is such that no amount of vigilance will enable the plaintiff to detect an injury.  Pocono, at 85, 468 A.2d at 471.  Appellant attempts to fit herself within this rule by simply declaring that the battery she suffered as a child was so traumatic that it was essentially unknown to her until the memory resurfaced.  In other words, appellant argues that the battery she suffered caused the injury of repressed memory, so that the repression is a much a part of the original injury as the actual battery itself.  Appellants’ argument is creative.  However, creativity cannot replace common sense.  Regardless of how appellant categorizes repressed memory she cannot escape the fact that the original injury was a battery which is commonly defined at law as a harmful or offensive contact.  Levenson v. Souser, 384 Pa. Super. 132, 557 A.2d 1081, appeal denied, 524 Pa. 621, 571 A.2d 383 (1989).  In a typical battery all the elements of the offensive touching will be present and ascertainable by the plaintiff at the time of the touching itself.  Id.  Under application of the objective standard 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.  Appellant’s argument, though admittedly quite ingenious, is still an assertion of an incapacity particular to this plaintiff’s ability to know that she suffered a battery.

 

Dalrymple v. Brown, 701 A.2d 164, 170 (Pa.1997).  Plaintiff attempts to sidestep the battery by not pleading a battery.  Not pleading a battery does not mean it did not occur.  Plaintiff knew or should have known she suffered a battery at the time of the incident(2), which was during her childhood.  The harm caused the Plaintiff occurred at the moment of the battery and was a result of the battery.  Therefore, the statute of limitations began to run at the date of the incident, not when Plaintiff’s repressed memory surfaced.  Since the discovery rule does not apply to toll the statute of limitations, Plaintiff’s claim is time barred.

 

1                    While Plaintiff correctly states that a statute of limitations defense should not be raised in preliminary objections, they waived this issue by failing to file preliminary objections to the preliminary objections.

 

2                    In Dalrymple, Plaintiff filed a claim for intentional infliction of emotional distress together with the battery.

 

            WHEREFORE, for all the reasons stated above the Court’s Order must stand.

Arnold L. New, J.       




 

|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|