The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER
This matter concerns a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by defendants Chester-Upland School District and Chester-Upland Board of School Directors. Plaintiffs, John I. Smith and Patricia N. Smith, initiated this action seeking damages when their daughter was killed and son was injured as they attempted to cross the street when they were walking home from school. Plaintiffs have filed a five count complaint against defendants seeking damages for negligence against each individual defendant, as well as punitive damages for willful and wanton misconduct against all four defendants. Plaintiffs claim that defendants are liable because they negligently supervised the school crossing guard, who had been assigned to the school crossing post at the intersection of Route 320 and the 1700 block of Providence Road in Chester, Pennsylvania, where the accident occurred. On the day of the accident, the school crossing guard failed to report to duty. Plaintiffs claim that the school crossing guard frequently failed to report to duty, and further, that defendants were aware of this fact.
Defendants claim that the complaint in its entirety should be dismissed against them. First, they claim that they are immune from suit for negligence under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 et seq. ("the Act"). Second, they claim that they are also immune from suit for punitive damages for willful and wanton misconduct under the Act. Third, they claim that plaintiffs cannot recover on a claim of loss of consortium because Pennsylvania does not recognize such a claim with respect to the loss of a child by a parent. Fourth, they claim that defendant Chester-Upland Board of School Directors is a non-entity and cannot be sued.
In response, plaintiffs first concede that there is no cause of action for loss of consortium by parents with respect to the loss of a child. Second, plaintiffs claim that defendants are not immune under the Act because they fall within 42 Pa.C.S.A. § 8542(b)(4), which is the "trees, traffic controls and street lighting" exception to immunity under the Act. Third, plaintiffs claim that punitive damages are recoverable for willful and wanton acts by agencies under the Act. Finally, plaintiffs claim that defendant Chester-Upland Board of School Directors is an agency for purposes of the Act.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is the appropriate method in which to challenge the legal sufficiency of a claim. See United States v. Marisol, Inc., 725 F. Supp. 833 (M.D. Pa. 1989). In ruling upon a 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). In so reviewing the pleadings and any materials of record, the court must accept as true all of the matters pleaded and all reasonable inferences that can be drawn therefrom, construing them in the light most favorable to the non-moving party. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir. 1990); Hough/Lowe Assoc., Inc. v. CLX Realty Co., 760 F. Supp. 1141, 1142 (E.D. Pa. 1991). A complaint is properly dismissed if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir. 1988).
1. Immunity for claims of negligence under the Act
We first address whether defendants are immune from suit for their alleged acts of negligence under the Act. In their complaint, plaintiffs allege that defendants "knew or should have known of the inherently dangerous conditions that existed at said crossing and they failed to exercise the proper safeguards in maintaining said crossing as they had a duty of care to the minors named herein." Complaint, para. 24. They further allege that defendants knew or should have known of the "inherently unsafe conditions existing at the crossing described" as well as of the "lack of the proper and reliable use of the manual traffic control device utilized through the school crossing guard." Complaint, paras. 39, 44. They also allege that defendants "failed to exercise reasonable and adequate alternatives for the maintenance of a safe school crossing for children at said location" and that this negligence proximately caused plaintiffs' injuries. Complaint, para. 40, 45. Finally, they allege that defendants had the duty to supervise the crossing guard. Id. at paras. 41, 46.
Defendants claim they are immune under the Act because none of the exceptions to immunity apply in this situation. Defendants cite as support cases where school districts and agencies were immune from suit for failing to provide any sort of traffic controls. On the other hand, plaintiffs argue that the exception to immunity for traffic control devices, 42 Pa.C.S.A. § 8542 (b)(4) ("section (b)(4)") applies in this case, and that a school crossing guard constitutes a traffic control device. Plaintiffs further claim that although defendants had a discretionary duty to erect traffic control devices, once they did so by providing a crossing guard, they had a duty to supervise the guard.
In response, defendants cite Erney v. Wunsch, 35 Pa. D. & C. 3d 440 (1983) where the common pleas court of York County specifically held that a school crossing guard did not constitute a traffic control device so as to come within the purview of section (b)(4).
It appears that this precise issue has never been considered by any of the courts in Pennsylvania with the exception of the common pleas court's decision in Erney. Thus, as a federal court sitting in diversity, we are faced with the difficult task of predicting how the Pennsylvania courts would decide this issue if confronted with it. See Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3rd Cir. 1990). However, based on the Pennsylvania courts' interpretations of the Act, the reasoning of Erney and principles of statutory construction, we hold that a school crossing guard does not constitute a traffic control device; therefore section (b)(4) does not apply to defendants and they are immune from suit under the Act.
The Act gives a general grant of immunity to local agencies for damages caused by the agency, an employee or any other person. 42 Pa.C.S.A. § 8541.
However, section 8542 of the Act lists several exceptions to the grant of immunity that apply as long as certain specified conditions have been met. These conditions are as follows:
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or ...