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Home My WebLink About99-6350 civilSHEILA STEPALOVITCH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 99-6350 CIVIL : MITCH SMITH, : CIVIL ACTION - LAW Defendant : IN RE DEFENDANT’S PRELIMINARY OBJECTIONS BEFORE BAYLEY AND HESS, J.J. OPINION AND ORDER The plaintiff’s complaint in this case was filed on April 17, 2000, in the Court of Common Pleas of Cumberland County. The matter was thereafter removed to the United States District Court for the Middle District of Pennsylvania on May 5, 2000. By order dated February 26, 2001, finding that it lacked subject matter jurisdiction, the United States District Court remanded the case to this court. According to the complaint, the defendant, Mitch Smith, is a licensed social worker in the Commonwealth of Pennsylvania. He began psychotherapy treatment with the plaintiff, Sheila Stepalovitch, in the course of his employment at Holy Spirit Hospital in 1990. In 1994, the defendant left Holy Spirit Hospital and went into private practice in Camp Hill where he continued “deprogramming” therapy with the plaintiff. It is in the course of this relationship that the plaintiff alleges sexual misconduct on the part of the plaintiff giving rise to the various matters complained of in her lawsuit. The defendant has filed preliminary objections seeking dismissal of counts VI and VII of the complaint and seeking to strike several paragraphs because they contain scandalous and impertinent matter. 99-6350 CIVIL Count VI of the complaint is entitled “Rape” and claims both compensa tory and punitive damages, including pain and suffering for certain nonconsensual physical contact, specifically sexual contact. The defendant demurs to this count in the complaint “because there exists no civil tort of ‘rape’ within Pennsylvania law.” We agree that rape may not exist as a separate cause of action but it is most certainly an actionable assault and/or battery. The elements of the tort of battery include any “harmful or offensive contact with a person.” See Levenson v. Souser , 384 Pa.Super. 132, 557 A.2d 1081 (1989). The conduct of the defendant, as alleged in the complaint, meets this definition. We will therefore not strike the allegations in plaintiff’s count VI deeming them merely expansive of the assault and battery claim. The defe ndant also seeks dismissal of count VII of the complaint. This count alleges a violation of civil rights and, specifically, a violation of Section 504 of the Rehabilitation Act. That section provides, in pertinent part: No otherwise qualified individual with a disability… shall, solely by reason of her or his disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…. 29 U.S.C. Section 794(a). Although the plaintiff’s complaint contains allegations that she is a person with a disability and that she was discriminated against, it fails to allege that she was participating in a federally funded program for which she was qualified. The plaintiff’s theory is that she receives Supplemental Security Income (“SSI”) from the federal government and that she uses the money to pay for the defendant’s services. Therefore, the defendant receives federal funding. The fact, however, that the plaintiff used federal money to pay for the defendant’s services does not 2 99-6350 CIVIL establish that the defendant received federal financial assistance within the meaning of the Rehabilitation Act. See Bingham v. Oregon School Activities Ass’n. , 37 F.Supp.2d 1189, 1204 ( D.Or. 1999). We agree with the defendant that the plaintiff has failed to state a claim under the Rehabilitation Act under which relief may be granted for a violation of civil rights. Finally, pursuant to Pa.R.C.P. 1028(a)(2), the defendant asks the court to strike paragraphs 8, 9, 10, 13, 15, 16, and 54 because they contain scandalous or impertinent matter. The defendant contends, specifically, that the inclusion of paragraphs 8, 9, 10, 13, and 15 constitutes scandalous and impertinent matter because those averments contain allegations of events occurring beyond the two-year statute of limitations applicable in this case. The affirmative defense of statute of limitations must be pleaded under new matter, and in absence of such pleading, the defense is not properly before trial court. Evans to the Use of Roadway Express Inc., v. D’Iorio , 360 Pa.Super. 45, 519 A.2d 983 ( Pa.Super. 1987). Rule 1030(a) of the Pennsylvania Rules of Civil Procedure states: Except as provided by subdivision (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of limitations statute of frauds, , truth and shall be pleaded in a responsive pleading waiver under the heading “New Matter” …. Pa..R.C.P. 1030(a). We will, therefore, dismiss the defendant’s preliminary objections insofar as they relate to the application of the statute of limitations. 3 99-6350 CIVIL The defendant also claims that certain of the aforementioned allegations, particularly paragraphs 15, 16 and 54 of the complaint, are impertinent and scandalous because they are designed to attack the character of the defendant and to gain negative media attention. The argument of the defendant is to the effect that the description of the sexual activity is gratuitously detailed. For allegations to be scandalous and impertinent and thus subject to being stricken, allegations must be immaterial and inappropriate to the proof of the cause of action. Common Cause/Pennsylvania v. Com. of Pa. , 710 A.2d 108, 115 ( Pa.Cmmwlth. 1998), aff’d 562 Pa. 632, 757 A.2d 367 (2000). Here, the allegations, though scabrous, are material and pertinent to the plaintiff’s cause of action. ORDER AND NOW, this day of July, 2001, the preliminary objection of the defendant to count VI of the plaintiff’s complaint is DENIED. The preliminary objections to pararaphs 8, 9, 10, 13, 15, 16 and 54 of the complaint are DENIED. The preliminary objection of the defendant to count VII of the complaint is SUSTAINED and said count is DISMISSED. BY THE COURT, _______________________________ Kevin A. Hess, J. Yvonne Husic, Esquire For the Plaintiff Timothy J. McMahon, Esquire For the Defendant : rlm 4 SHEILA STEPALOVITCH, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PE NNSYLVANIA : vs. : 99-6350 CIVIL : MITCH SMITH, : CIVIL ACTION - LAW Defendant : IN RE DEFENDANT’S PRELIMINARY OBJECTIONS BEFORE BAYLEY AND HESS, J.J. ORDER AND NOW, this day of July, 2001, the preliminary objection of the defenda nt to count VI of the plaintiff’s complaint is DENIED. The preliminary objections to pararaphs 8, 9, 10, 13, 15, 16 and 54 of the complaint are DENIED. The preliminary objection of the defendant to count VII of the complaint is SUSTAINED and said count is DISMISSED. BY THE COURT, _______________________________ Kevin A. Hess, J. Yvonne Husic, Esquire For the Plaintiff Timothy J. McMahon, Esquire For the Defendant : rlm