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MEMORANDUM OF LAW IN SUPPORT

OF DEFENDANTS’ PRELIMINARY OBJECTIONS

TO PLAINTIFF’S COMPLAINT

 

INTRODUCTION

 

            Pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure, Defendants Charles H. and Millicent B. Holzinger (“Defendants”), have filed the foregoing Preliminary Objections to the Complaint filed by their daughter, Rebecca Holzinger (“Plaintiff”), which was served upon their undersigned counsel on June 7, 2004. (1) For all the reasons stated in the Preliminary Objections and in this Memorandum of Law, Defendants respectfully request that the Court dismiss the Complaint in its entirety on the grounds of improper venue, insufficient pleading, and failure to state a legally cognizable claim.

 

A.     FIRST OBJECTION:  VENUE DOES NOT LIE IN PHILADELPHIA

 

Plaintiff has commenced this action in Philadelphia County against her parents, both of whom live in Lancaster County.  As venue can only lie in Lancaster County, where the Defendants reside, and because the alleged events which give rise to Plaintiff’s cause of action took place in Lancaster County, Plaintiff’s action should be dismissed on the ground of improper venue.

           

Rule 1006 of the Pennsylvania Rules of Civil Procedure states, in pertinent part:

 

… 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.

 

Here, there is no basis for asserting venue in Philadelphia County pursuant to the terms of Rule 1006.

 

            First, neither Defendant can be personally served in Philadelphia County:  Pursuant to Rule 402 of the Pennsylvania Rules of Civil Procedure, original service may be made upon the Defendants only by 1) handing them a copy of the summons or complaint; or 2) by handing a copy of the summons or complaint to an adult member of the family who resides at their residence.  Charles and Millicent Holzinger  both reside at 365 Sylvan Retreat Road, Columbia, Pennsylvania in Lancaster County.  Only in Lancaster can they be served.  Indeed, the summons which commenced this action was served upon them at their Sylvan Retreat home in Lancaster County by a Lancaster County sheriff.

 

            Second, neither the cause of action, nor any of the alleged transactions relevant to it, took place in Philadelphia County:  Plaintiff has premised her cause of action solely upon alleged recovered memories from some undefined time, at least thirty-two years ago, when she was a child. (2)  The events associated with these memories, as articulated in Plaintiff’s Complaint, purportedly took place in Lancaster County, in “Charles’ house.”  Complaint at (P) 8.  Plaintiff has set forth no facts which could support a claim that the alleged events took place anywhere other than in “Charles’ house” in Lancaster County, where Plaintiff grew up and where her parents still reside.

 

            Although the Plaintiff’s Complaint refers to emotional distress which she has experienced since 2001 as a result of an e-mail from her former sister-in-law, which she presumably read at her current residence in Philadelphia, her symptoms of distress, no matter how severe, do not create a cause of action. (3)   Likewise, the place where she has experienced her distress is not germane to the question of venue.  If Plaintiff has a cause of action against her parents at all, it arose where their alleged wrongful acts against her took place, not where she happened to be when she purportedly recalled or read about the wrongful acts.  As a matter of law, Plaintiff’s cause of action does not and cannot arise from a belated memory which she claims to have recovered in a remote time and place.  It does not and cannot arise from reading an e-mail on a Philadelphia computer.  Accordingly, venue does not lie in Philadelphia County. (4)  Plaintiff’s complaint must, therefore, be dismissed.

 

1                    Defendants did not receive a Notice to Defend.

 

2                    Paragraph 4 of the Plaintiff’s Complaint states:  During 2001 Rebecca began to recall various disconnected events from her childhood.  Ms. Holzinger, who was born on April 9, 1954, turned 18 in 1962.

 

3                    Paragraph 6 of her Complaint states:  “On or about April 14, 2002 REBECCA read an e-mail sent to her and the other immediate members of her family, from her former sister-in-law concerning certain activities by the woman’s former husband, Tom, REBECCA’S BROTHER.”  Tom is not a defendant in this action.  Plaintiff does not claim that the e-mail which supposedly triggered her distressing memories had anything to do with her parents.  Rather, by Plaintiff’s own admission, it referred to her brother only.

 

4                    In the event that the Court does not dispose of this action in its entirety, Defendants reserve the right to file a petition pursuant to Rule 1006 (d) for a change of venue for the “convenience of the parties.”  Defendants are both in their eighties and traveling to Philadelphia to defend this action would constitute a hardship for them.

 

 

 

SECOND OBJECTION:  THE PLAINTIFF’S ALLEGATIONS REGARDING THE TIME WHEN HER CAUSE OF ACTION AROSE ARE NOT PLED WITH SUFFICIENT SPECIFICITY

 

Plaintiff’s allegations in support of her purported cause of action have not been pled with the requisite specificity.  Indeed, it is impossible to determine when the two events which she claims as the basis for her cause of action took place.  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.  See Complaint at (PP) 4, 8 & 9; see also n. 2, infra.

 

Rule 1019 of the Pennsylvania Rules of Civil Procedure require that “{a}verments of time, place, and special damage shall be specifically stated.”  Here, Plaintiff has not only failed to plead specifically the time when her purported cause of action arose; she has not identified the day, year, decade, or century when her injuries were inflicted.  Complaint at (P) 4.  Accordingly, Plaintiff’s Complaint must be dismissed. (5)

 

__________________________________________________________________________________ 

5     Regardless of when during her childhood Plaintiff’s cause of action allegedly arose, it is time barred and not cognizable in any Pennsylvania Court.  Dalrymple v. Brown, 549 Pa. 217(Pa. 1997).  An action for “battery,” which is the only conceivable basis for the Plaintiff’s claim, must be brought within two years of the alleged act.  See also 42 Pa. C.S.A. & 5524.  Although in 1984 the statute of limitations was amended, providing for tolling of the limitations period during a plaintiff’s minority, the statute did not apply retroactively to persons who had reached the age of majority prior to 1984.  Thus, Plaintiff’s claims expired on April 9, 1972.  Even if the modified statute did apply to Plaintiff’s claims, they still expired, at the very latest, two years after she reached the age of majority, on April 9, 1974.  Dalrymple, supra 549 Pa. at 221.  Plaintiff has brought her claim against her parents thirty-two years after she reached the age of majority.  See Section C, infra.

 

 

THIRD OBJECTION:  THE PLAINTIFF HAS FAILED TO STATE A LEGALLY COGNIZABLE CLAIM (DECURRER)

 

Pursuant to Rule 1019 of the Pennsylvania Rules of Civil Procedure, Defendants object to Plaintiff’s Complaint because she has failed to allege a legally cognizable claim.  Under the rubric of “other tort,” Plaintiff’s claim is premised upon two alleged events that occurred at some unspecified time during her “childhood,” which concluded, as a matter of law, in 1972.  Complaint at (P) 4; 8-9.  The viability of her claim wholly depends upon an application of the so-called “discovery rule,” which the Pennsylvania Supreme Court has adopted under limited circumstances to toll the time when a plaintiff is charged with notice that she has suffered a legal injury, in a manner which the Court has rejected unequivocally.  Accordingly, Plaintiff has failed to state a claim, and her case must be dismissed. (6)

 

That Plaintiff’s claim is moribund is not a factual question, but is dictated as a matter of law by the Pennsylvania Supreme Court’s dispositive ruling in Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997).  There, similarly to the case at bar, the plaintiff brought allegations of sexual abuse against the defendant thirteen years after she reached the age of majority.  The Court flatly rejected the plaintiff’s effort to extend the discovery rule to cases of repressed memory, pursuant to which a plaintiff had attempted to rescue her untimely claim on the theory that she was not on notice of her injury until she recovered the memory of it.

 

The Court emphasized in Dalrymple, as the Pennsylvania Superior Court had done numerous times before, that Pennsylvania’s “discovery rule” is based on an objective standard.  Accordingly, when the existence of the injury would be readily discernible by a reasonable person using reasonable diligence, the discovery rule is not applicable.  (7)  Dalrymple, supra; Seto v. Willits, 638 A.2d 258 (1994); E.J.M. v. Archdiocese of Philadelphia, 662 A.2d 1388 (Pa. Super. 449 1993).  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 Court said 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. (8)  The Court refused to permit an incapacity unique to the plaintiff, such as repressed memory, to trigger the discovery rule and toll the statute of limitations.  Repressed memory cases, therefore, as a matter of law, are not cognizable in Pennsylvania Courts, unless they are brought during the applicable statute of limitations. (9)

 

WHEREFORE,  as Plaintiff has failed to plead a legally sustainable cause of action, and her Complaint must be dismissed.

 

_____________________________________________________________

6    Statutes of limitations defenses are ordinarily reserved for Judgment on the   Pleadings or Summary Judgment.  The discovery rule is raised here, however, as a substantive legal issue which establishes as a matter of law that Plaintiff’s claim is not cognizable under Pennsylvania law.  As the dismissal of Plaintiff’s claim is foreclosed by controlling precedent from the Pennsylvania Supreme Court, the discovery rule is being raised on Preliminary Objections in the nature of a demurrer.  Expeditious disposal of this matter will benefit all the litigants and prevent the needless expenditure of the Court’s resources as well.

 

7        Only where the injury itself is such that no amount of vigilance would enable the plaintiff to detect the injury will the discovery rule apply under Pennsylvania law.  Dalrymple, supra, 701 A.2d at 170.  For instance, surgical injuries and chemical exposures which do not create symptoms until years later create issues of fact as to the applicability of the discovery rule.  Allegations of battery do not.  See eg., Dalrymple, supra, 701 A,2d at 170 (collecting cases).

 

8        Plaintiff’s allegations establish on their face that she was aware of the fact of the injury at the time it allegedly occurred.  In Paragraph 8 of her Complaint she claims to have confronted her mother about the alleged actions of her father.  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.

 

9        As Justice Newman observed in her concurring opinion, the “Majority has 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.

____________________________________________________________________________________

 

VERIFICATION - signed by Charles H. & Millicent B. Holzinger

                            on June 26, 2004




 

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