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August 28, 1987

Kathleen Stoneking, Plaintiff
Bradford Area School District, Frederick Smith, in his individual and official capacity as principal of Bradford Area High School; Richard Miller, in his individual and official capacity as assistant principal of the Bradford Area High School and Frederick Shuey in his individual and official capacity as Superintendent of the Bradford Area School District, Defendants

The opinion of the court was delivered by: MENCER


 The defendants have filed a motion for summary judgment. As set forth in their brief, the first ground for the motion is that the plaintiff failed to file her complaint in a timely fashion. The defendants also assert that the plaintiff failed to identify a constitutional right which has been violated. The defendants contend that as a matter of law there is no § 1983 claim because there is no individual liability nor is there any policy, practice or custom which would implicate the School District. In the alternative, it is asserted that defendants Smith, Miller and Shuey are entitled to qualified immunity. Finally, the defendants assert that the complaint fails to set forth state law violations.

 After consideration of the briefs, the voluminous deposition testimony and the relevant case law, this Court concludes that: (1) there are genuine issues of material fact pertaining to the statute of limitations; (2) the plaintiff has alleged a violation of a well-established constitutional right; (3) there are genuine issues of material fact pertaining to the liability of defendants Smith, Miller and Shuey; (4) there are genuine issues of material fact regarding the existence of an "official practice or custom;" (5) defendants Smith, Miller and Shuey are not shielded from liability by the defense of qualified immunity and (6) the complaint does fail to set forth state law claims. Therefore, this Court shall deny the motion for summary judgment filed on behalf of the defendants, as it pertains to Counts I, III, V and VII, *fn2" and grant the motion as it pertains to Counts II, IV and VI.


 In August, 1975, Edward Wright was hired by the Bradford Area School District to serve in the capacity of band director. Mr. Wright was responsible for instructing band activities and providing students with music lessons. Under Mr. Wright's direction, the high school band and individual band members were extremely successful in both regional and remote competitions. The band came to be the pride and joy of the school and the community. As the band's acclaim grew, so too did the acclaim of Edward Wright.

 Three and a half years into Mr. Wright's tenure, a young woman by the name of Judy Grove *fn3" came forward and informed Dr. Smith, the School Principal and Mr. Miller, the Assistant Principal, that the band director had sexually assaulted her. At that time, Ms. Grove openly acknowledged that she had been drinking prior to the assault and that the assault had taken place at Mr. Wright's residence. The details of the events that followed Ms. Grove's disclosure are vigorously contested. All parties agree, however, that Dr. Smith ultimately appeared before the band to quiet the "rumors" and to encourage the band to work together again.

 Mr. Wright's sexual abuse and harassment of Kathleen Stoneking began in the fall of 1980. The first incident of abuse consisted of Mr. Wright forcibly kissing Ms. Stoneking. As time progressed, the abuse greatly accelerated both in terms of frequency and in terms of intrusiveness. The sexual abuse continued, on an almost weekly basis, until Ms. Stoneking graduated from high school in the spring of 1983. As reported by the plaintiff, there were isolated incidences of abuse that occurred as late as May, 1985.

 In early March, 1986 William Smith, Frederick Smith's son, informed his father that Mr. Wright was sexually assaulting female band members. Almost immediately after this information was conveyed to Dr. Smith, the School District responded. The parents of other students who had been assaulted were contacted. Several meetings followed which were attended by various administration officials, the parents of some of the girls who had been assaulted and the girls themselves. Mr. Wright was suspended as of March 10, 1986 and later resigned from his job. Subsequently, Edward Wright pled guilty to a ten count indictment. *fn4"


 In reviewing a motion for summary judgment, the Court is governed by the standard set forth in Fed. R. Civ. P. 56(c). In pertinent part the Rule provides "the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving part is entitled to judgment as a matter of law."

 The application of this standard requires that "inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion." Baker v. Lukens Steel Co., 793 F.2d 509, 511 (3d Cir. 1986), citing, Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Therefore, this Court must resolve all doubt, as to the existence of a genuine issue of material fact, in favor of the plaintiff.


 A. Statute of Limitations

 In its recent decision of Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985), the Supreme Court declared that all actions brought pursuant to 42 U.S.C. § 1983 shall be characterized as personal injury actions and are subject, therefore, to the applicable state statute of limitations. In reaching this conclusion the Court instructed that: "the characterization of § 1983 for statute of limitations purposes is derived from the elements of the cause of action, and Congress' purpose in providing it. These, of course are matters of federal law. . . . [However,] the length of the limitations period, and closely related questions of tolling and application, are to be governed by state law." Id. at 268-69. Therefore, for claims arising in Pennsylvania, federal courts must apply the two year statute of limitations set forth in 42 Pa. C.S.A. § 5524 (2). See Sullivan v. City of Pittsburgh, 811 F.2d 171, 180 (3d Cir. 1987); Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir.), cert. denied, 474 U.S. 950, 88 L. Ed. 2d 297, 106 S. Ct. 349 (1985). Additionally, federal courts are bound to apply state tolling rules.

 The Pennsylvania Superior Court discussed applicability of the discovery rule in Anthony v. Koppers Co., 284 Pa. Super. 81, 425 A.2d 428 (1980), rev'd on other grds. 496 Pa. 119, 436 A.2d 181 (1981). In that case, the court explained that, "the discovery rule is a judicial creation, fashioned to solve a specific problem, namely, whether the law should preclude recovery for an injury that not even a diligent party may reasonably be expected to discover." Anthony, 284 Pa. Super. 89, 425 A.2d at 432. The court went on to note that although the exception, as it was first applied involved the concealment of injury, "as the rule has developed it has become clear that its basis is not concealment by the defendant but rather the ability of the plaintiff to discover . . . [her] injury or its cause." Anthony, 284 Pa. Super. at 95, 425 A.2d at 436 (emphasis added). Thus, when the discovery rule is applicable the statute of limitations will not start to run until the plaintiff actually discovers the injury and the cause of the injury or reasonably should have discovered such. *fn5"

 The role of the court in evaluating a plaintiff's assertion that the discovery rule should apply is limited. *fn6" The court must decide whether there is sufficient evidence by which a jury could reasonably decide that the plaintiff did not discover the injury or its cause until after the occurrence of the liability-creating act. Once a court makes that determination the remaining questions are for the jury. As the court in Burnside v. Abbot Laboratories, 351 Pa. Super. 264, 292, 505 A.2d 973, 988 (1985), recently pointed out: "Where the issue involves a factual determination regarding what is a reasonable period of time for a plaintiff to discover . . . [her] injury and its cause the determination is for the jury." See also Taylor v. Tukanowicz, 290 Pa. Super. 581, 586, 435 A.2d 181, 183 (1981).

 In the instant action the plaintiff asserts that she did not discover that the individual defendants were the cause of her injuries until the School District took affirmative action to discipline and discharge Edward Wright. *fn7" Those events occurred in March, 1986. Thus, plaintiff contends that the two year statute of limitations should run from that date. Defendants, on the other hand, insist that plaintiff was aware of the requisite facts at least by the time she graduated from Bradford Area High School, in June, 1983. *fn8"

 In addressing the court's role in determining whether a claim is time barred, the third circuit offered the advice that "since the applicability of the statute of limitations usually involves question of fact for the jury, defendants bear a heavy burden in seeking to establish as a matter of law that the challenged claims are barred." Van Buskirk v. Carey Canadian Mines, LTD, 760 F.2d 481, 498 (3d Cir. 1985). Reviewing the available evidence in the light most favorable to the plaintiff, this Court concludes that the defendants have not satisfied that heavy burden. There are genuine issues of material fact pertaining to the tolling of the statute of limitations. Therefore, the motion for summary judgment, as it pertains to the statute of limitations defense, is denied.

 B. Evaluation of Section 1983 Claim

 1. Identification of constitutional right

 In pertinent part 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

 The crux of any section 1983 action is a violation of a protected constitutional right. Thus, identification of the specific right is "not a mere academic exercise and is necessary in determining whether a cause of action may be maintained under section 1983." Metcalf v. Long, 615 F. Supp. 1108, 1113 (D.C. Del. 1985). See also Fox v. Curtis, 712 F.2d 84, 87 (4th Cir. 1983).

 In the complaint, plaintiff alleges that the defendants, acting under color of state law, deprived her of her rights, privileges and immunities as secured by the Constitution. More specifically, the plaintiff alleges that she was deprived of her liberty interest which entitled her to be free from the constant threats, intimidation, sexual abuse and sexual harassment perpetrated by Edward Wright. Although the plaintiff does not expressly link her claim to the substantive due process clause of the fourteenth amendment, identification of the liberty interest serves that purpose. The critical question is whether such a right is cognizable under the fourteenth amendment.

 In discussing the breadth of the fourteenth amendment the district court in Metcalf pointed out:

Substantive due process is a nebulous term, the meaning of which readily changes depending on the context of the particular situation. Substantive due process derives from the idea that the framers of the Constitution intended to protect rights other than those specified. In deciding that certain rights not specified in the constitution are protected by the due process clause, the Court has looked to those rights which are "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

 Metcalf, 615 F. Supp. at 1120. A review of the case law will assist in the task of determining whether the rights asserted by the plaintiff are so rooted in tradition and conscience to rise to the ranks of fundamental.

 The Supreme Court's decision in Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977) is instructive in this area. The issue in Ingraham revolved around the use of corporal punishment in public schools. After deciding that the eighth amendment offered the school students no protection, the Court turned its attention to the fourteenth amendment due process clause.

 In a summary fashion, the Court concluded that "where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, we hold that Fourteenth Amendment liberty interests are implicated." Ingraham, 430 U.S. at 674. Thus, the Supreme Court recognized the existence of a substantive right to be free from bodily abuse.

 Admittedly, the liberty interests asserted in the instant action are not identical to those asserted and recognized by the Supreme Court in Ingraham. However, common sense suggests that the right to be free from sexual abuse is at least as fundamental as the right to be free from the less intrusive physical abuse of paddling. The Supreme Court's view that corporal punishment implicates a constitutional liberty interest is ...

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