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THOMAS A. CLOSE AND LINDA PARKER v. MARILYN VOORHEES ET AL. (06/18/82)

decided: June 18, 1982.

THOMAS A. CLOSE AND LINDA PARKER, CO-ADMINISTRATORS OF THE ESTATE OF ANTHONY CLOSE, DECEASED, APPELLANTS
v.
MARILYN VOORHEES ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Tioga County in the case of Thomas A. Close and Linda Parker, Co-Administrators of the Estate of Anthony Close, deceased v. Marilyn Voorhees, Larry Jones, Northern Tioga School District, Lavern Kipferl and Ann Kipferl, his wife, and Kerry Kipferl, No. 604 Civil Division, 1980, In Trespass.

COUNSEL

Robert B. Elion, Fisher, Rice, Barlett, Elion & Wayne, for appellants.

David R. Bahl, McCormick, Reeder, Nichols, Sarno, Bahl & Knecht, for appellees.

President Judge Crumlish and Judges Rogers and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge Mencer did not participate in the decision in this case.

Author: Doyle

[ 67 Pa. Commw. Page 206]

This is an appeal by Plaintiffs*fn1 from a decision and order of the Court of Common Pleas of Tioga County sustaining defendants' Northern Tioga School District, Marilyn Voorhees and Larry Jones*fn2 (Defendants) preliminary objections in the nature of a demurrer and dismissing Plaintiffs' complaint insofar as it applies to them for failure to state a cause of action. We affirm.

The initial complaint in this matter was filed May 9, 1980. An amended complaint was filed October 21, 1980. It alleges that, on February 22, 1980, Anthony Close, while attending a study hall at Williamson High School,*fn3 became embroiled in an argument with another

[ 67 Pa. Commw. Page 207]

    student, Kerry Kipferl. Defendant Voorhees, the study hall's supervisor, was purportedly out of the room at the time, leaving it without adult supervision, but returned while the argument was still in progress and separated the students. Voorhees allegedly again left the room, whereupon the argument reerupted and Kerry Kipferl stabbed Anthony Close with a knife he had in his possession. This stabbing resulted in the death of Anthony Close later that same day.

In raising actions in survival and wrongful death, Plaintiffs in their amended complaint assert it was negligence and/or reckless action on the part of Defendants which led to Anthony Close's death. The alleged negligence consisted of, inter alia : failure to enforce existing regulations or take additional measures to keep weapons off school grounds; failure to take measures to assure that students remain in assigned seats during class; and failure to exercise due care for safety of others under the circumstances. Plaintiffs also raise a civil rights action claiming that Defendants are liable under 42 U.S.C. § 1983*fn4 because it was their negligent and reckless conduct, as entities of the state or employees thereof, which helped cause Anthony Close's death, i.e. action under color of state law which deprived Anthony close of his life without due

[ 67 Pa. Commw. Page 208]

    process of law in violation of the fourteenth amendment to the United States Constitution. By way of response, Defendants filed preliminary objections in the nature of a demurrer asserting that there is no civil rights cause of action under § 1983 and requesting dismissal of the entire complaint as it applies to them on the grounds that they are immune from liability for the incident under the Political Subdivision Tort Claims Act*fn5 (Tort Claims Act). Following oral argument, the common pleas court issued an opinion and order on December 1, 1980, sustaining the preliminary objections. A clarifying order was issued on January 29, 1981, and the appeal to this Court followed.

It is axiomatic that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material factual averments and all inferences fairly deducible therefrom. Robinson v. Department of Justice, 32 Pa. Commonwealth Ct. 77, 377 A.2d 1277 (1977). Conclusions of law, unjustified inferences, argumentative allegations and expressions of opinion, however, are not deemed admitted. Township of Upper Moreland v. Pennsylvania Department of Transportation, 48 Pa. Commonwealth Ct. 27, 409 A.2d 118 (1979). With this in mind, the ruling court must "consider whether petitioner has stated on the ...


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