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March 16, 1995


The opinion of the court was delivered by: J. CURTIS JOYNER


 Defendant Methacton School District, and Defendants Gerald Raske, John Klock and J. Russell McConnell (the Methacton Defendants), each of whom is a current or former employee of the Methacton School District, move this Court for dismissal of all the claims against them in Plaintiffs' Amended Complaint. This motion is based on Federal Rule of Civil Procedure 12(b)(6); Methacton Defendants assert that Plaintiffs have failed to state claims for which relief can be granted.


 The facts underlying this litigation are tragic. According to the Amended Complaint, and largely conceded by the Methacton Defendants, in December, 1992, Defendant Gregory DiFonzo was a music teacher at the Shawmont Elementary School within the Philadelphia School System. At that time, Plaintiff Baby Doe was a nine-year old girl who was a student of DiFonzo's. One day in December, DiFonzo brought Baby Doe to the band room and sexually abused her. He has since pleaded guilty to the crimes of involuntary deviate sexual intercourse, indecent assault, corrupting the morals of a minor, sexual abuse of children, endangering the welfare of a minor, and possession of pornographic materials (a videotape he made of himself abusing Baby Doe).

 In addition to suing the Philadelphia School District, Michael Giamo (Director of Philadelphia's Music Department), and DiFonzo, Plaintiffs have sued the Methacton Defendants under 42 U.S.C. § 1983 and for negligence under Pennsylvania common law.

 Plaintiffs' claims against the Methacton Defendants are based on events that took place in the late 1970s. From 1970 through 1979, DiFonzo was employed by the Methacton School District as a music teacher. In 1976, DiFonzo began a romantic relationship with a twelve-year old girl who was his student. This relationship continued for three years, and had at least some physical dimension, although its extent is unknown.

 In 1978, other students and teachers had become suspicious that an inappropriate relationship existed between the two. This suspicion was confirmed when the girl's parents discovered love letters between the two. Her parents reported the letters and relationship to Defendant Vice-Principal J. Russell McConnell. He in turn, presumably informed Defendant Principal John Klock, because Klock warned DiFonzo not to spend any more time with the child, nor let her stay after school with him. When DiFonzo ignored this warning, Klock gave DiFonzo a written warning that he typed and delivered himself.

 Nonetheless, DiFonzo did not stop seeing the girl, and for months they continued to spend lunch hours alone in the band room. Finally, in March of 1979, DiFonzo arranged for both to be excused from school, allegedly because of illness. According to the Amended Complaint, they "drove around in DiFonzo's car, parked and engaged in petting." Amended Complaint P 41.

 The next day, DiFonzo was called to the office of Defendant Gerald Raske, the Methacton School Superintendent. There, Raske and Klock confronted DiFonzo, and DiFonzo admitted the incident. Raske gave DiFonzo a prepared resignation letter, ready to be signed, that indicated that DiFonzo was resigning for "personal reasons." Id. at P 45. They told DiFonzo that if he signed the letter, he could avoid an investigation and suspension. DiFonzo signed the letter, and thereby terminated his employment with the Methacton School District. Neither Raske nor Klock notified anyone of the abuse, or placed any indication of the true reason for the resignation in any Methacton School District files. Id. at P 76.

 Three weeks later, DiFonzo applied for a position as a music teacher with the Philadelphia School District. The Philadelphia School District allegedly requested a recommendation for DiFonzo from the Methacton School District, and the Methacton School District responded that DiFonzo's service had been "satisfactory," and gave no indication of any potential pedophilic problems. Id. The Philadelphia School District subsequently hired DiFonzo.

 According to the Amended Complaint, shortly after hiring DiFonzo, Defendant Michael Giamo, Director of Music for the Philadelphia School District, learned of the events in Methacton from his brother, Louis Giamo, who had been DiFonzo's supervisor at the Methacton school. Michael Giamo confronted DiFonzo, who admitted the abuse. According to the Amended Complaint, Michael Giamo did nothing in response to the information. Almost fourteen years later, when DiFonzo was still an employee of the Philadelphia School District, he sexually abused Baby Doe.



 In considering a 12(b)(6) motion, a court must primarily consider the allegations contained 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 (3d Cir. 1990).

 In ruling upon such a motion, the Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).


 Plaintiffs' Amended Complaint alleges that the Methacton Defendants instituted a policy, practice or custom of deliberate indifference to Baby Doe's constitutional rights, pursuant to which the sexual abuse of Baby Doe by DiFonzo occurred. They argue that when the Methacton Defendants permitted DiFonzo to resign for "personal reasons," gave DiFonzo a satisfactory recommendation when the Philadelphia School District inquired, and made no reports to Children and Youth Services, * ...

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