REBECCA R. HOLZINGER : IN THE SUPERIOR COURT OF
CHARLES H. HOLZINGER AND :
MILLICENT B. HOLZINGER :
Appellee : No. 2481 EDA 2004
Appeal from the Order entered August 3, 2004
In the Court of Common Pleas of Philadelphia County
Civil No. April Term 2004, No. 01984
BEFORE: ORIE MELVIN, KLEIN and MONTEMURO* JJ.
FILED JUNE 6, 2005
CONCURRING MEMORANDUM STATEMENT BY KLEIN, J.:
While I agree with the result announced by the majority, I do not believe that Dalrymple v. Brown, 701 A.2d 164 (Pa. 1997), fully explains the outcome. Therefore, I write separately.
I disagree with the majoritys conclusion that this is a repressed memory case. If the action were for the battery of sexual abuse, then I would agree with the majority. The Supreme Court has made it clear in Dalrymple that repressed memory is not applicable in Pennsylvania. (1)
1) It may be time for our Supreme Court to revisit this issue, although this case does not appear to have the proper factual predicate. Dalrymple found repressed memory of sexual abuse, at least in reference to the 22 years of repression claimed there, to be absurd. This finding was reached despite admitting that Dalrymple had presented expert psychological testimony and no Frye hearing had been held. I believe that there is still a deep divide in the psychological community over the validity of repressed memory, but there have surely been more studies on the issue and more peer reviewed articles written since 1997. Therefore, I believe that in the proper case, it may be time for a full hearing on the issue.
*Retired Justice assigned to Superior Court.
However, plaintiff is making a different argument. Plaintiff is suing for intentional infliction of emotional distress. To make out a cause of action for emotional distress, a plaintiff has to prove two elements: (1) that the defendant did something that was wanton and outrageous; and (2) that the plaintiff suffered some physical manifestation of harm, such as the need for professional psychological care, which is what is alleged in this case. (2)
2) It is unclear just what level of physical harm needs to be shown. In Kazatsky v. King David Memorial Park, 527 A.2d 988 (Pa, 1987), the Supreme Court dismissed the action because no expert testimony regarding treatment for the alleged emotional distress was forthcoming. The requirement that the claim be supported by expert testimony eventually changed into a rule that a claim for physical injury must accompany the claim for emotional distress. See Hart v. OMalley, 647 A.2d 542 (Pa. Super. 1994). Those cases which cite the rule requiring physical harm all cite back to Kazatsky as the genesis.
The plaintiff must concede that repressed memory will not extend the statute of limitations for battery since, under Dalrymple, the 30 some years of repressed memory claimed here is untenable. Therefore, legally, as a child Holzinger knew she was improperly touched. However, plaintiff claims that she could not have sued for intentional infliction of emotional harm at that time or for many years thereafter, since she had not manifested any physical symptoms. It is only many years later that her problems developed to the point where she needed psychological help, and the second prong of the cause of action came to being.
In other words, she claims that although she might have been deemed to know of the wanton and outrageous conduct, she did not have a cause of action until decades later when she required psychological care. Since she sued within two years of the time the conduct ripened into a cause of action by the second prong of physical manifestation requiring medical care, she claims the suit was timely.
While the argument has surface appeal, we do not believe that the legislature intended to create an open-ended time limit for the limited actions of intentional infliction of emotional harm. The statute reads that the action must be brought within two years but is silent on within two years of what. It is the defendants action or the time when psychological symptoms fully manifest themselves?
I would hold that it is within two years of the defendants action, with the extension of the discovery rule applicable for the time it takes to learn of the actions.
Almost always, an intentional infliction of emotional claim will be part of a greater action that includes another tort. For example, in this case there was an indecent assault. In others, there might be harassment or defamation. Therefore, I would hold that the gist of the action is the other tort, and the plaintiff will be able to bring some lawsuit within two years of the defendants action (or learning of the defendants action). In this manner we would view a claim for intentional infliction of emotional distress almost as a derivative claim of the underlying tortious action. Support for this view of an intentional infliction of emotional distress claim may be found in the realization that, unlike most any other claim for personal injury, an intentional infliction of emotional distress claim, by specific definition, encompasses both the tortious action and the specific harm. By this I mean, while there is a claim for intentional (or negligent) infliction of emotional distress (consisting of an outrageous and/or wanton act and resulting psychological harm), there is no concurrent specific cause of action for intentional infliction of a broken arm. Thus, the underlying tort and the resulting harm are, in effect, melded together, making the harm specifically dependant upon the tort. To separate the two, as is proposed by Holzinger, would essentially divorce the effect from the cause. This, in turn, would lead to the result where the statute of limitations on the underlying tort, in this case sexual abuse/battery, has expired, see Dalrymple, but the statute of limitations for the harm has not. (3)
3) Some other jurisdictions get around this problem by recognizing the phenomenon of repressed memory, thus allowing the cause and effect to remain tied together. It should be noted that there is no absolute consensus among the 50 states regarding the admissibility of repressed memories.
It is true that there may be some isolated cases where there is no underlying tort and the plaintiff does not manifest physical symptoms for over two years. (4) Although in such a situation, there may never be a time that the plaintiff can sue, this result is preferable to having an open-ended statute of limitations for this tort.
4) For example, if a person, intending to inflict emotional harm, falsely tell someone that their child has been killed in a car accident, and the psychological care is not needed for more than two years.
Other, related but not specifically on point, reasons can be found in case law for leaving the tort and the harm tied together. In Pearce v. The Salvation Army, 674 A.2d 1123 (Pa. Super. 1996), a panel of our Court determined that repressed memory, as a mental infirmity, could not toll the statue of limitations. That determination was based upon 42 Pa.C.S. & 5533(a) and prior case law interpreting that rule. (5) The discovery rule provides an objective standard for a reasonable person to have discovered the injury. Thus, the mental impairment of a repressed memory, and by extension the repression of the psychological trauma, cannot serve to extend the statue of limitations. (6) While section 5533 is not directly applicable to the case at hand, it does evince a policy that mental impairment (7) is not cause to displace the statue of limitations.
5) Section 5533 does not apply to this case as that section was not enacted until 1978, well after the alleged abuse took place in this matter.
6) The Court recognized the problem of applying the reasonable person standard to a situation such as this, yet that Court believed it was up to our Supreme Court or legislature to change the rule.
7) Once again case law has slightly altered standards, as we found in the Kazatsky/Hart situation. Rule 5533 speaks of mental insanity, not mental impairment.
Further, in both E.J.M. v. Archdiocese of Philadelphia, 622 A.2d 1388 (Pa. Super. 1993) and McD. V. Rosen, 621 A.2d 128 (Pa. Super. 1993), this Court refused to split the harm from the tort. In each of those cases the plaintiff was aware of the underlying tortious conduct but was allegedly unaware of the harm caused. Such cases are analogous to our situation where we must presume under Dalrymple that Holzinger knew of the abuse but was unaware of the harm until she sought psychological care. In E.J.M. and McD, our Court refused to extend the statue of limitations to accommodate the knowledge of harm. (8)
8) What some may see as being harsh in my proposal may be ameliorated to some degree by the current embodiment of section 5533 which now contains a specific provision for the statue of limitations for sexual abuse of minors. That limitation is now 12 years after the victim attains 18 years of age. See 42 Pa. C.S. & 5533(b)(2).
In light of this rationale, I agree with the disposition of this matter, but based upon different reasoning.