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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

 

REBECCA R. HOLZINGER               :  IN THE

                                                            :  SUPERIOR 

 COURT OF

 PENNSYLVANIA

                        Appellant                      :

                                                            :

                  v.                                       :

:

:

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.

 

MEMORANDUM:                      FILED JUNE 6, 2005

 

    In this case based on repressed memories of sexual abuse, Appellant Rebecca Holzinger appeals the Order entered August 3, 2004, in the Philadelphia County Court of Common Pleas sustaining the preliminary objections of Appellees, her parents, and dismissing her complaint.  For the reasons set forth below, we affirm.

 

    On April 13, 2004, Appellant initiated this action against her parents for intentional infliction of emotional distress.  Appellant, who is 50 years old, claims that sometime during 2001, she began to “recall various disconnected events from her childhood.”  (Complaint at P 4).  Although she originally sought professional help in January of 2002, it was not until she received an e-mail from her former sister-in-law on April 14, 2002,(1) that she recalled two instances of sexual abuse perpetrated by her father during her childhood.  She claims to have remembered that on both occasions she woke up to find her father touching her breasts while her mother was present.  When she confronted her mother after the first incident, she recalls that her mother told her that it was her father’s house “and he could do whatever he wanted.”  (Id. at P 8).  She claims that the second time, her mother told her that she was present to make sure her father did not go too far.  Apellant’s complaint does not indicate when these recalled incidents occurred, simply that they happened during her childhood.  Moreover, she avers that she suffered severe emotional distress, including depression, adjustment disorder and post traumatic stress disorder, after regaining her memory of these events.

__________________________________

*  Retired Justice assigned to Superior Court.

 

1)       Appellant notes, cryptically, that the e-mail concerned “activities” by Appellant’s brother.  (Id. at P 6).

_______________________________

 

    Appellees filed preliminary objections challenging venue,(2) the lack of specificity of the complaint, and Appellant’s failure to plead a legally sustainable claim, i.e., a demurrer.  The demurrer, however, is actually a challenge based on a violation of the statute of limitations, and the inapplicability of the discovery rule per the Pennsylvania Supreme Court’s decision in Dalrymple v. Brown, 701 A.2d 164 (Pa. 1997).  Appellant filed an answer to the preliminary objections noting, inter alia, that a statute of limitations defense cannot be raised by preliminary objection.  By Order dated August 3, 2004, the trial court sustained Appellees’ preliminary objections and dismissed Appellant’s complaint.  This timely appeal follows.  In its subsequent Pa.R.A.P. 1925(a) Opinion, the court explained that it dismissed the complaint because it was time-barred; the court did not address Appellees’ challenges to venue and specificity.

 

                  Appellant raises three issues in her brief:

     

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?

 

2.      Did the lower court err in dismissing Appellant’s Complaint on the ground that venue in Philadelphia County is improper?

 

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?

 

(Appellant’s Brief at 4).  Because we agree that Appellant’s claim is time-barred, we need not address Appellant’s second and third issues.

________________________________

2)       Appellees lived in Lancaster County throughout Appellant’s childhood, and continue to do so.  Appellant, who lives in Philadelphia, predicates venue on the fact that the severe emotional distress she suffered occurred while she was living in Philadelphia.

_________________________________

 

    When reviewing the grant of preliminary objections that results in the dismissal of a cause of action we should sustain the objections “only in cases that are clear and free from doubt.”  Heinrich v. Conemaugh Valley Memorial Hosp., 648 A.2d 53, 57 (Pa. Super. 1994).  Our standard of review is plenary; considering as true all well pleaded facts in the complaint, we must determine whether the trial court properly found that under no circumstances will the law permit recovery.  Id.

 

    Before we discuss the merits of Appellant’s challenge we must address a procedural issue.  Pa.R.C.P. 1030 mandates that all affirmative defenses, including the statute of limitations, must be raised in an Answer under the heading “New Matter.”  Here, Appellees improperly raised their statute of limitations argument in preliminary objections.  This Court has held that “[w]here a party erroneously asserts substantive defenses in preliminary objections rather than to raise these defenses by answer or in new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections.”  Preiser v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992), aff’d, 646 A2.d 1166 (Pa. 1994).  In a footnote in its Opinion, the trial court found that Appellant waived her objection to Appellees’ improper pleading by failing to file preliminary objections in response.  See Trial Ct. Op. at 2 n.1.  However, Appellee did object to the improper pleading in an answer to the preliminary objections.  See Plaintiff’s Answer to Defendant’s Preliminary Objections, at P C.3.  We find this objection sufficient to satisfy Preiser.  See Pa.R.C.P. 1032(a) (“A party waives all. . . objections which are not presented either by preliminary objection, answer or reply. . . “) (emphasis added).  However, Appellant did not raise this procedural issue in her Pa.R.A.P. 1925(b) Statement; as such, it is now waived.  Mar-Eco, Inc. v. T & R and Sons Towing and Recovery, Inc. 837 A.2d 512, 518 (Pa. Super. 2003).

 

    Appellant’s first, and dispositive, argument challenges the trial court’s finding that her action is time-barred.  Although she concedes that the statute of limitations for claims of intentional infliction of emotional distress is two years, see 42 Pa.C.S.A. & 5524, Appellant contends that the statute did not begin to run until she first suffered severe emotional distress from the abuse, that is, shortly after she received her sister-in-law’s e-mail on April 14, 2002, and recalled the repressed memories of abuse.  Because she initiated suit on April 13, 2004, Appellant claims that her action is timely.  We disagree.

 

It is axiomatic that 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[.] . . . Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies which acts to toll the running of the statute.

 

Pocono International Raceway v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983).  One such exception is the discovery rule which “arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause.”  Id. (emphasis in original).

 

    Appellant’s argument focuses on when the statute of limitations began to run on her claim.  She contends that because the tort of intentional infliction of emotional distress requires physical harm resulting from the actor’s conduct, her cause of action did not accrue until she first experienced severe emotional distress sometime after April 14, 2002.

 

    The tort of intentional infliction of emotional distress is defined in Section 46(1) of the Restatement (Second) of Torts:

 

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.

 

Although the Pennsylvania Supreme Court has declined to expressly adopt Section 46, Hoy v. Angelone, 720 A.2d 745, 753 n.10 (Pa. 1998), it has acknowledged the tort and expanded on the definition provided in the Restatement.  In Kazatsky v. King David Memorial Park, 527 A.2d 988, 991 (Pa. 1987), the Court noted that “[t]he gravamen of the tort of intentional infliction of emotional distress is outrageous conduct on the part of the tortfeasor.”  Analyzing the injury element of the tort, the Court held that “at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.”  Id. at 995.  See also Fewell v. Besner, 664 A.2d 577, 582 (Pa. Super. 1995) (citing Kazatsky, supra) (“A plaintiff must show physical injury or harm in order to sustain a cause of action for intentional infliction of emotional distress.”).  Focusing on this injury element of the claim, Appellant argues that “until [she] experiences severe emotional distress, there is no [intentional infliction of emotional distress] cause of action.”  (Appellant’s Brief at 11) (emphasis in original). 

 

    However, Appellant ignores the fact that the reason why she did not suffer emotional distress at the time of the abuse is because she repressed her memories of the abuse.  Thus, although Appellant characterizes her case as a straightforward intentional infliction of emotional abuse claim, it is, in actuality, a repressed memory case.  And, on that point, the Supreme Court’s decision in Dalrymple v. Brown, 701 A.2d 164 (Pa. 1997), is dispositive.(3)

_____________________________________

3)       Appellant relies on Bond v. Gallen, 469 A.2d 556 (Pa. 1983), for the proposition that “the beginning of the limitations period may be delayed until the occurrence of a threshold event.”  (Appellant’s Brief at 12).  Bond, however, involved an action under the now repealed No-Fault Motor Vehicle Act.  That Act abolished tort liability arising out of the use of a motor vehicle, with only a few limited exceptions.  One such exception was when the reasonable medical bills of the injured party exceeded $750.  Id. at 558.  Thus, the Court concluded that the plaintiff may be permitted to file suit more than two years after the motor vehicle accident in question, if she did so within two years of knowing or having reason to know that her medical bills would exceed the statutory threshold limit.  Id. at 559.  We find that this proposition does not translate to the case at bar since, as will be discussed infra, Appellant had reason to know of the trauma at the time it occurred.

_______________________________________

 

    The facts in Dalrymple are eerily similar to those presented sub judice.  The plaintiff, who was in her mid-thirties, claimed that in August of 1990, she recovered repressed memories of a childhood sexual assault that occurred in 1968 and 1969 when she was aged 7 to 8.  The complaint, which set forth claims for battery, assault, intentional infliction of emotional distress, and punitive damages, was dismissed on summary judgment as time-barred.

 

    The Supreme Court framed the issue on appeal as follows:  “Whether the discovery rule should extend the statute of limitations in a case where the plaintiff claims that repressed memory of an injury is the cause of the failure to file the action timely?”  Id. at 165.  Holding that it should not, the Court focused on the Commonwealth’s objective policy approach to the application of the discovery rule.

 

As we have stated before, the rule is an equitable one, which excludes the period of time during which the injured party is reasonably unaware that an injury has been sustained so that people in that class have essentially the same rights as those who suffer an immediately ascertainable injury….

The party seeking to invoke the discovery rule bears the burden of establishing the inability to know of the injury despite the exercise of reasonable diligence.  The standard of reasonable diligence is objective, not subjective.  It is not a standard of reasonable diligence unique to a particular plaintiff, but instead, a standard of reasonable diligence as applied to a “reasonable person.”

 

Id. at 167 (citations omitted) (emphasis in original).  The Court found that the discovery rule “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.”  Id. at 170.  With respect to Dalrymple’s specific claim, the Court deemed “absurd” her argument that a reasonable 6 year old would repress the memory of a sexual abuse so that “no amount of diligence would enable that person to know of the injury.”  Id.  Although the Court focused on the battery underlying the offensive touching, it dismissed all of Dalrymple’s claims, including one alleging intentional infliction of emotional distress.

 

    Despite Appellant’s attempt to confuse the issue here, her claim is identical to the one raised in Dalrymple.  The fact that she did not raise a claim for battery is irrelevant.  Dalrymple explains that the discovery rule applies only when “’no amount of reasonable diligence’ would have enabled the injured party to discern the injury.”  Id.  It is evident that Appellant’s delayed emotional response to the alleged abuse was a direct result of her repression of all memories of the abuse.  However, as the Dalrymple Court made clear, the repression of sexual abuse even by a child is an unreasonable response to the trauma.  See Id.  Therefore, Appellant’s claim, filed at the very least, some 30 years after its occurrence, is time-barred.(4)

_______________________________________

4)       As the Court noted in Dalrymple,

 

[h]ere we have only the “memories” of the plaintiff to rely upon in determining that an actual injury occurred.  There is no objective evidence of an injury.  To require an alleged tortfeasor, no matter how heinous the allegations, to respond to claims of an injury many years after the fact, where the only “evidence” of the actual injury is held in the “memory” of the accuser, would allow the exception known as the discovery rule, to swallow the rule of law embodied within the statute of limitations itself.

 

Id.  Indeed, here, Appellant has failed to recall the year of the alleged abuse, averring only that it occurred during her “childhood.”  We fail to see how Appellees could defend against these allegations.

___________________________________

 

    Order affirmed.

 

    Klein, J. files a Concurring Memorandum Statement.

 

Judgment Entered

 

June 6, 2005

 

 

JUDGE KLEIN’S CONCURRING MEMORANDUM STATEMENT IS HERE.

 

 




 

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