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I.                   STATEMENT OF JURISDICTION

 

This Court has jurisdiction over this appeal pursuant to 42 Pa.

C.S.A.& 742 as an appeal from a final order entered by the Court of Common Pleas of Philadelphia County that is not otherwise within the jurisdiction of the Supreme Court or the Commonwealth Court.

 

II.                STATEMENT OF THE SCOPE AND STANDARD OF REVIEW

 

A.     Scope of Review

 

The scope of this Court’s review of the trial court’s determination

to sustain preliminary objections in the nature of a demurrer is plenary.  Belser v. Rockwood Cas. Ins. Co., 791 A.2d 1216 (Pa. Super. 2002).

 

B.     Standard of Review

 

A demurrer admits as true all of the well pleaded facts in

the complaint and any reasonable inferences to be drawn therefrom, but not conclusions of law.   220 Partnership v. Philadelphia Elec. Co., 650 A.2d 1094 (Pa. Super. 1994), Georgina v. United Mine Workers of America, 572 A.2d 232 (Pa. Super. 1990), Clouser v. Shamokin Packing Co., 361 A.2d 836 (Pa. Super. 1976).  A preliminary objection in the nature of a demurrer “tests the legal sufficiency of the complaint.”  Vulcan v. United of Omaha Life Ins. Co., 715 A.2d 1169, 1172 (Pa. Super. 1998).  Because preliminary objections can be sustained only in cases that are free from doubt, any doubt about the legal sufficiency of a complaint should be resolved in favor of overruling the demurrer.  220Partnership, 650 A.2d at 1096, Clouser, 361 A.2d at 840.  When considering a demurrer, a court cannot consider matters collateral to the complaint but must limit itself to such matters as appear therein.  220 Partnership, 650 A.2d at 1096, quoting Coccia v. Cocciai, 427 A.2d 212, 213 (Pa. Super. 1981).

 

III.             ORDER OR OTHER DETERMINATIONS

            IN QUESTION

 

            AND NOW, this 3rd, Day of August, 2004, in consideration of Defendants’ Preliminary Objections and Plaintiff’s Response thereto, it is hereby ORDERED and DECREED that Defendants’ Preliminary Objections are SUSTAINED and Plaintiff’s Complaint is DISMISSED.

 

                                                                                      /S/ ARNOLD NEW

 

IV.              STATEMENT OF THE QUESTIONS INVOLVED

 

1.      Did the lower court err in dismissing Appellant’s claim

for Intentional Infliction of Emotional Distress as untimely and barred by the statute of limitations?

 

                  Suggested Answer – Yes

 

2.      Did the lower court err in dismissing Appellant’s Complaint on

the ground that venue in Philadelphia County is improper?

 

                  Suggested Answer – Yes (not addressed by the lower court.)

 

3.      Did the lower court err in dismissing Appellant’s Complaint on

 the ground that it did not conform to Rule 1019 of the Pennsylvania Rules of Civil Procedure?

 

Suggested Answer – Yes (not addressed by the lower court.)

 

V.                 STATEMENT OF THE CASE

 

A.     Procedural History

 

On or about April 13, 2004, Appellant Rebecca R. Holzinger

(hereinafter referred to as “Rebecca”) began the instant litigation by filing a Writ of Summons against her parents, Appellees Charles H. Holzinger and Millicent B. Holzinger (hereinafter referred to as “Charles” and “Millicent”).  (R. 7a- R. 9a).  On or about June 7, 2004. Rebecca filed a Complaint asserting a claim for Intentional Infliction of Emotional Distress (hereinafter referred to as “IIED”) (R. 10a – R. 13a).  Charles and Millicent filed Preliminary Objections to the Complaint on or about June 28, 2004 (R.14a – R. 20a).  Rebecca filed an Answer to the Preliminary Objections on or about July 19, 2004 (R. 21a – R. 25a).  Charles and Millicent filed a reply to Rebecca’s Answer to their Preliminary Objections on or about August 5, 2004 (R. 27a – R. 33a).  By Order dated August 3, 2004, the Honorable Arnold L. New sustained Defendants’ Preliminary Objections and dismissed Rebecca’s Complaint (R. 26a).  Rebecca filed a Notice of Appeal to this Court on September 1, 2004 (R. 1a – R. 5a).  On or about September 8, 2004, Rebecca filed a Concise Statement of Matters Complained of on Appeal and, thereafter, on October 18, 2004, Judge New issued an opinion supporting his August 3, 2004 Order sustaining Defendants’ Preliminary Objections.  Judge New’s Opinion is attached hereto as Attachment A-I and Plaintiff’s Concise Statement of Matters Complained of on Appeal is attached hereto as Attachment II.

 

B.     Factual History

 

As set forth in the complaint, during 2001, Rebecca began to

experience various disconnected and disturbing thoughts of events from her childhood.(1)  Finding these thoughts unsettling, Rebecca sought out and received professional mental health assistance and counseling from Evergreen Counseling Associates.(2)  On or about April 14, 2002, Rebecca received and read an email sent to her and other members of her immediate family by her former sister-in-law concerning certain activities of Rebecca’s brother, Tom.(3)  Over the next two weeks, Rebecca began to experience severe emotional distress as she realized that the disturbing thoughts she had been having since 2001 involved improper sexual contact by Charles.(4)

 

            As further alleged in the complaint, Rebecca recalled specifically one incident from her childhood in which she awakened to find her father Charles standing over her and touching her breasts after having opened her pajama top while her mother Millicent was present.(5)  The next day when she confronted her mother Millicent about what occurred, Millicent informed her that it was Charles’ house and that he could do whatever he wanted.(6)  Rebecca also recalled a similar incident in which she awoke to find Charles touching her breasts and Millicent, also present, telling Rebecca that she [Millicent] was there to make sure that Charles did not go too far.(7)  

 

            The extreme and outrageous conduct of Charles and Millicent in acting as they did caused Rebecca severe emotional distress beginning sometime after April 14, 2002.(8)  As the result of Charles’ and Millicent’s actions during the incidents described above, Rebecca continues to suffer extreme emotional distress which has been diagnosed as an adjustment disorder, depression, and post-traumatic stress disorder.(9)

   See (P) 2-3 of the complaint.

2     See (P) 3 of the complaint.

3     See (P) 6 of the complaint.

4     See (P) 7 of the complaint.

5     See (P) 8 of the complaint.

6     See (P) 8 of the complaint.

7     See (P) 9 of the complaint.

8     See (P) 11 of the complaint.

9     See (P) 12 of the complaint.

 

 

VI.              SUMMARY OF ARGUMENT

 

Section 46 of the Restatement (Second) of Torts imposes liability on

 a person who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another.  Therefore, a person such as Rebecca only has a cause of action for IIED when she can allege and prove that she suffered severe emotional distress as the result of the outrageous and intentional conduct of the defendant.

 

            As set forth in the Complaint, Rebecca’s IIED cause of action arose after April 14, 2002, within two (2) years of the date she filed suit.  The lower court, however, held that the statute of limitations had expired on Rebecca’s claim and dismissed her Complaint.  The lower court reached this erroneous conclusion by improperly concluding that Rebecca’s Complaint asserts a claim for battery and then relying on Dalrymple v. Brown, 701 A.2d 164 (Pa. 1970) as support for its conclusion that the statute of limitations had expired, even though the Complaint clearly asserts a claim for IIED and not a claim for battery.

 

            Although not addressed by the lower court, venue is proper in Philadelphia County because Rebecca’s cause of action arose in Philadelphia County.  Even if, as the Appellees argue, venue is only proper in Lancaster County, Rule 1006(e) of the Pennsylvania Rules of Civil Procedure provide for the transfer of Rebecca’s claim to Lancaster County, not dismissal.

 

            Finally, Rebecca’s Complaint is sufficiently specific to permit the Appellees to frame an appropriate answer.

 

VII.            ARGUMENT

 

Charles and Millicent, in their Preliminary Objections, raised three

grounds in support of their demand that the lower court dismiss Rebecca’s Complaint.  First, Charles and Millicent claimed venue in Philadelphia County was improper.  Next, they complained that the Complaint was not sufficiently specific in violation of Rule 1019 of the Pennsylvania Rules of Civil Procedure and finally, they asserted a demurrer based upon their contention that the statute of limitations had expired and could not be extended by the discovery rule.

 

            The lower court, in its Opinion, only addressed the statute of limitations issue.  The lower court first held that even though Rebecca’s Complaint only asserts a claim for Intentional Infliction of Emotional Distress, the Complaint in reality asserts a claim for common law battery.  The lower court then concluded, relying on Dalrymple v. Brown, 701 A.2d 164 (Pa. 1997), that since the discovery rule does not toll the statute of limitations for battery, Rebecca’s Complaint had to be dismissed.

 

            For the reasons more fully set forth below, the lower court’s analysis is legally wrong and its decision to dismiss Rebecca’s Complaint must be reversed.

 

A.     REBECCA’S CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS TIMELY AND IS NOT BARRED BY THE STATUTE OF LIMITATIONS.

 

            As a general rule, the “statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake, or misunderstanding do not toll the running of the statute of limitations.” Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. Super. 1983).  Pursuant to 42 Pa. C.S.A. & 5524, the tort of IIED is subject to a two-year statute of limitations.  The question, therefore, is when did Rebecca’s right to institute and maintain a suit arise?  The answer is that her right did not arise until sometime after April 14, 2002.

 

1.      Rebecca’s Cause of Action for the Intentional

Infliction of Emotional Distress Did Not Accrue Until After April 14, 2002, the Time When She First Experienced Severe Emotional Distress.

 

            The statute of limitations begins to run as soon as a plaintiff’s right to institute and maintain a suit arises, or in other words, from the time the plaintiff’s cause of action accrues.  There is no uniform definition for the words, “cause of action,” since the elements of every tort are different.  For example, the tort of battery is generally defined as an unlawful or non-consensual touching, Levenson v. Souser, 557 A.2d 1081 (Pa. Super. 1989) and the plaintiff’s cause of action accrues at the time of the non-consensual touching.  Dalrymple, 701 A.2d at 170.  With reference to IIED, Pennsylvania has adopted the definition of IIED set forth in & 46 of the Restatement (Second) of Torts.  Section 46 defines IIED as follows:

 

(1)   One who by extreme and outrageous conduct

intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2)   Where such conduct is directed at a third person, the

actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a)     to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b)     to any other person who is present at the time, if such distress results in bodily harm.

 

Kazatsky v. King David Memorial Park, 527 A.2d 988, 991-992 (Pa. 1987).  Therefore, in order to maintain a claim of IIED, a plaintiff must allege and prove the following:

 

(1)   the defendant’s conduct must be extreme

      and outrageous;

(2)   it must be intentional or reckless;

(3)   it must cause emotional distress;

(4)   that distress must be severe.

 

Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. 1997), aff’d 720 A.2d 745 (Pa. 1998), citing Hooten v. Penna. College of Optometry, 601 F. Supp. 1151, 1155 (E.D. Pa. 1984).

 

            IIED differs from other intentional torts, including the tort of battery, in one very critical respect.  IIED is unique in that the definition of the tort requires as an essential element of the cause of action that plaintiff allege that she suffered damages of a particular form (emotional) and to a particular degree (severe).  Until these elements are present, that is until the plaintiff experiences severe emotional distress, there is no IIED cause of action.  In Rebecca’s case, though her parents’ outrageous and intentional conduct occurred when she was a child, she did not begin to suffer severe emotional distress because of that conduct until sometime after April 14, 2002.  It was only at this time that the tort of IIED came to fruition and Rebecca’s IIED cause of action accrued.

 

            Counsel has not found any Pennsylvania case that has considered the precise issue of when an IIED cause of action accrues.  However, the Court of Appeals of North Carolina has twice ruled on this issue in recent years.  In Bryant v. Thalminer Bros., Inc., 437 S.E.2d 519 (N.C. App. 1993), the Defendant argued that the plaintiff’s claims were barred by North Carolina’s three-year statute of limitations because the alleged acts of harassment by defendant’s employee had occurred more than three years prior to the filing of plaintiff’s complaint.  Id. At 526.  The Bryant court disagreed, finding the plaintiff’s cause of action did not accrue until she experienced distress which, though occurring some years after the wrongful conduct, was the “severe emotional result required to complete the tort…outrageous conduct by the defendant alone would confer no cause of action on the plaintiff in the case until she suffered extreme emotional distress.”  Id. (emphasis added).  The Bryant court concluded that the plaintiff’s complaint was timely because it was filed within three years of her distress and the accrual of her cause of action.  Id.

 

            In Ruff v. Reeves Bros., Inc., 468 S.E.2d 592 (N.C. App. 1996), one of the defendants argued that the plaintiff’s IIED claim was barred because it was not brought within three years of the defendant’s outrageous conduct. Id. at 594.  The Ruff court rejected this argument stating:

 

                        Ordinarily, the period of the statute of limitations begins to

                        run when the plaintiff’s right to maintain an action for the      

                        wrong alleged accrues.  The cause of action accrues when

                        the wrong is complete…(citations omitted).  In Bryant,

                        as in the instant action, the plaintiff’s cause of action

                        did not accrue until the actions of the defendant did, in fact,

                        cause severe emotional distress.

 

Id.  In both Bryant and Ruff, the North Carolina Court of Appeals recognized that the definition of IIED includes the manifestation of severe emotional distress and properly concluded that no cause of action accrues until the plaintiff suffers severe emotional distress.

 

            Although Pennsylvania has not ruled on this precise issue, the Pennsylvania Supreme Court’s decision in Bond v. Gallen, 469 A.2d 556 (Pa. 1983) supports the proposition that the beginning of the limitations period may be delayed until the occurrence of a threshold event.  The questions before the Supreme Court in Gallen was when the two year statute of limitations in a personal injury action growing out of an automobile accident began to run under the now repealed Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. && 1009.101, et seq.  The Act provided that a party does not have a cause of action unless and until medical expenses exceeded $750.00.  The Court held that the statute of limitations did not begin to run until the plaintiff knew or should have known that his or her medical expenses would exceed $750.00, even if this event did not occur until many years after the accident.(10)

10     See also Osborne v. Erie Paint Co., 52 Pa. D & C 4th 129 (2001), which held that the statute of limitations in a claim for non-economic damages arising from an injury sustained by an insured with limited tort coverage did not begin to run until the plaintiff knew or should have known that he or she suffered serious bodily injury as a result of the automobile accident.

 

2.      Rebecca’s Claim for Intentional Infliction of Emotional Distress Cannot Ipso Facto Turned Into Cause of Action for Barttery.

 

It is hornbook law that one series of events  may give rise to multiple

causes of action.  One of the most common examples of this proposition is where a person is injured in an automobile accident and then dies from his or her injuries sometime later.  Such a fact pattern gives rise both to a survival action and a wrongful death action.  In such a situation, the plaintiff may pursue either or both causes of action and each claim is independent of the other.

 

            In the instant case, the conduct of Charles and Millicent also gives rise to two (2) independent torts, IIED and the tort of battery.  While acknowledging that Rebecca had asserted an IIED claim, citing no authority whatsoever, and acting like Merlin the Magician, the lower court waved its magic wand, said “Abracadabra” and declared Rebecca’s claim one for battery.(11)  Having completed that sleight of hand, the lower court then returned to legal precedent and relying on Dalrymple, concluded that the statute of limitations had expired on Rebecca’s magical battery claim and dismissed her Complaint.  While the Defendants’ actions were unquestionably a battery and while the holding in Dalrymple makes clear the statute of limitations for battery has expired,(12) the statute of limitations for IIED, as set forth above, has not expired.  The lower court’s decision to merge the two torts into one is improper and must be reversed.

11     See Page 3 of the lower court’s opinion in which it states, “Plaintiff attempts to sidestep the battery by not pleading a battery.  Not pleading a battery does not mean it did not occur.”

12     The Supreme Court in Dalrymple considered whether the “discovery rule,” an equitable theory to postpone the running of the statute of limitations in a situation in which the plaintiff’s cause of action has accrued but the plaintiff does not know he or she has been injured, applied to a battery claim.  The Court reasoned that since the plaintiff had to know of the non-consensual touching at the time it occurred (the injury for the tort of battery), the discovery rule did not apply.  The discovery rule has no application in the instant case because, like in the No-Fault case, Rebecca’s cause of action did not accrue until she experienced the severe emotional distress in April, 2002.

 

 

B.     VENUE IN PHILADELPHIA COUNTY IS PROPER.

 

Charles and Millicent contend that venue in Philadelphia County is

improper and that venue only lies in Lancaster County, Pennsylvania, the county where they reside (R. 16a).  The lower court did not address this issue in its opinion, but as set forth below, Appellees are incorrect.  Further, even if Appellees are correct, the remedy is not to dismiss Rebecca’s complaint but simply to transfer the matter to Lancaster County.

 

            It is a well-established principle of Pennsylvania law that venue is proper in any county in which an individual may be served or in a county in which the transaction or the cause of action arises.  Rule 1006(a) of the Pennsylvania Rules of Civil Procedure provides:

 

(a)    Except as otherwise provided by subdivisions (a.1), (b)

and (c) of this rule, 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…(emphasis added)

 

In Kring v. University of Pittsburgh, 829 A.2d 673 (Pa. Super. 2003), this Court had occasion to consider the issue of where a cause of action arises for purposes of determining proper  venue.  In Kring, this Court reviewed two older Pennsylvania Supreme Court Cases, Emert v. Larami Corp., 200 A.2d 901 (Pa. 1964) and Openbrier v. General Mills, 16 A.2d 379 (Pa. 1940) and concluded that for purposes of venue, a cause of action for the tort of wrongful use of civil proceedings was properly brought in the county in which the injury was inflicted.  Kring, 829, A.2d at 677.  As the Supreme Court explained in Openbrier;

 

To constitute a tort, there must be an injury; mere negligence establishes no right of action.  The place of wrong is, and the tort must be deemed to arise, where the injury is inflicted, not where the negligent acts leading to it were committed:  Mike v. Lian, 322 Pa. 353, 356, 185 A. 75 775, 777.  If the glass was in the package of flour as the result of defendant’s negligence, no ‘right of action’ (which is synonymous with ‘cause of action’:  Alpha Neon Corp. v. Pennsylvania Distilling Co., Inc., 325 Pa. 140, 142, 188 A. 825, 826) accrued to Mrs. Openbrier until she ate the bread and suffered injury.

 

16 A.2d at 380.  See also, Action Industries, Inc. v. Wiedeman, 346 A.2d 798, 805 (Pa. Super. 1975), where this Court stated that the reason for the ‘place of injury rule’ is that the injured plaintiff should be allowed to choose the forum of the injury rather than being limited to the forum of the defendant’s convenience.  Action Industries, Inc., 346 A.2d at 806.  As in the above cases, the injury suffered by Rebecca, severe emotional distress, occurred in Philadelphia County and, therefore, venue in Philadelphia County is proper.

 

            Assuming arguendo that this court concludes that venue in Philadelphia County is improper, the remedy is not the dismissal of the Complaint but rather transfer of the action to Lancaster County, a county in which the Appellees concede venue is proper under Rule 1006 of the Pennsylvania Rules of Civil Procedure.  Rule 1006(e), which provides the exclusive method for challenging venue as improper, states:

 

(e) Improper venue shall be raised by preliminary objection and if not so raised shall be waived.  If a preliminary objection to venue is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county.  The costs and fees for transfer and removal of the record shall be paid by the plaintiff.

 

According to the plain meaning of Rule 1006(e), if venue in Philadelphia County is improper, this case should be transferred to Lancaster County, “a County of proper venue within the State” rather than dismissed entirely.

 

C.     REBECCA’S COMPLAINT COMPLIES WITH

      RULE 1019 OF THE PENNSYLVANIA RULES

      OF CIVIL PROCEDURE.

 

            Appellees’ last argument, which also was not addressed by the lower court, is that Rebecca’s complaint should be dismissed pursuant to Rule 1019(f) of the Pennsylvania Rules of Civil Procedure because she failed to allege with sufficient specificity the time when the events occurred which form the basis of her cause of action (R. 17a).  Defendants are simply wrong.

 

            According to Rule 1019(f) of the Pennsylvania Rules of Civil Procedure, “Averments of time, place, and items of special damages shall be specifically stated.”  In Baker v. Rangos, 324 A.2d 498 (Pa. Super. 1974), this Court considered if Rule 1019(f) was satisfied if a complaint generally specified the time certain conversions occurred and specified the place from which a property was taken.  The Baker court observed that in circumstances where there can be no claim that some acts were authorized and some were not, the complaint satisfied the requirements of Rule 1019.  324 A.2d at 509.  In this case, there can be no claim that any of the complained of touching by Charles was authorized by Rebecca.  Depending on what is believed, either Charles touched Rebecca’s breasts or he did not, but as the court observed in Baker, “Greater specificity will not aid the defendants in answering the complaint.”  342 A.2d at 509.

 

            Rule 1019’s general purpose in requiring specificity in pleadings is to enable defendants to prepare their defenses.  Smith v. Wagner, 558 A.2d 1308, 1310 (Pa. Super. 1990).  Rebecca’s complaint as filed clearly enables Appellants to adequately prepare to defend this action.  The complaint comports with both Rule 1019’s specificity requirements and its general purposes and should not therefore have been dismissed.

 

VIII.         CONCLUSION

 

For all of the above stated reasons, the Order of the lower court

dated August 3, 2004, sustaining Appellees’ Preliminary Objections and dismissing Rebecca’s Complaint, should be reversed.

 

                                         BY:  DAVID S. DESSEN, ESQUIRE

                                                 Dessen, Moses & Sheinoff

                                                 Attorney for Plaintiff

 

Dated:  December 3, 2004

 

 

 




 

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