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September 14, 1999


The opinion of the court was delivered by: Joyner, District Judge.


This 42 U.S.C. § 1983 action was brought by plaintiffs, Constance Jordan, Myeshia Jordan, and Nickie Jordan against defendants, the City of Philadelphia ("Philadelphia"), Department of Human Services of the City of Philadelphia ("DHS"), Valerie Mack, Children and Youth Division of the Department of Human Services of the City of Philadelphia, Marlene H. Rivers ("Rivers"), Tinea Mimms ("Mimms"), and the Women's Christian Alliance ("WCA"), Roslyn Mosely, Frank and Lois Crawford, and Joel Crawford. Before the Court is the motion of defendants Rivers, Mimms, and WCA to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion shall be granted in part and denied in part.

Factual Background

Plaintiffs are three sisters who were placed in the foster home of Frank and Lois Crawford by the DHS in September 1987. The Crawfords were selected as foster parents by WCA, an agency which contracts with the DHS to provide foster care. Rivers has been the Executive Director of the WCA. Mimms has been employed by the WCA. Plaintiffs allege they were subjected to numerous instances of forced sexual activity by the Crawfords' teenage son.

On January 5, 1999 plaintiffs filed suit. They amended the complaint on February 22, 1999. On February 24, 1999 defendants, Rivers, Mimms and WCA filed this 12(b)(6) motion.*fn1

Standards Governing 12(b)(6) Motions

It has long been held that the issue of the sufficiency of a pleading may be raised by the filing of a 12(b)(6) motion to dismiss. In resolving a Rule 12(b)(6) motion, the courts are to primarily consider 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 (3d Cir. 1990). In so doing, the court must accept as true the facts alleged in the complaint, together with all reasonable inferences that can be drawn therefrom and construe them in the light most favorable to the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Hough/Loew Associates, Inc. v. CLX Realty Co., 760 F. Supp. 1141, 1142 (E.D.Pa. 1991).

The court's inquiry is directed to whether the allegations set forth by the plaintiff constitute a statement of a claim under Rule 8(a) and whether the plaintiff has a right to any relief based upon the facts pled. Rule 8(a) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief . . ." Fed. R.Civ.P. 8(a)(2). The purpose of a "short and plain statement" is to give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Rannels v. S.E. Nichols, Inc., 591 F.2d 242, 245 (3d Cir. 1979) (quoting Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957)).

Dismissal under Rule 12(b)(6) for failure to state a claim is therefore limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267 (1985).


I. Assault

Defendants*fn2 first move to dismiss the First, Second, and Third Counts of the complaint on the grounds that it lacks sufficient factual allegations to state a claim for assault. Since the amended complaint addresses many of the deficiencies initially alleged in the plaintiffs' complaint, the court will deny Defendants' motion to dismiss Counts I, II and III. See Sun Co., Inc. v. Badger Design & Constructors, 939 F. Supp. 365, 367 n. 3 (E.D.Pa. 1996); 6 Charles A. Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 1476 at 556-58 (2d ed. 1990 & Supp. 1999).

II. Intentional Infliction of Emotional Distress

Defendants also move to dismiss the claims for emotional suffering and distress which are set forth in the Fourth, Fifth, and Sixth Counts. To bring an intentional infliction of emotional distress claim, the plaintiff must show that the defendant's (1) extreme and outrageous conduct, (2) intentionally or recklessly, (3) caused, (4) severe emotional distress. Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988, 991 (1987); Stouch v. Brothers of Order, 836 F. Supp. 1134, 1144-1145 (E.D.Pa. 1993), citing, inter alia, Williams v. Guzzardi, 875 F.2d 46, 51 (3d Cir. 1989); Restatement (Second) of Torts § 46.

To satisfy the first element of the four-prong test, the conduct must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency as to be regarded as atrocious and utterly intolerable in a civilized community. Stouch, supra. at 1145; Malia v. RCA Corporation, 690 F. Supp. 334, 336 (M.D.Pa. 1988); Rittenhouse Regency Affiliates v. Passen, 333 Pa. Super. 613, 615, 482 A.2d 1042, 1043 (1984), citing, inter alia, Martin v. Little, Brown & Co., 304 Pa. Super. 424, 432, 450 A.2d 984, 988 (1981); Restatement (Second) of Torts § 46, cmt. d.

The role of the court is to determine initially if the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. If reasonable persons may differ, the issue goes to the jury, subject to the control of the court, to determine whether the conduct is sufficiently extreme and outrageous to incur liability. Restatement (Second) of Torts § 46, cmt. h. See also Gibbs v. Ernst, 150 Pa.Cmwlth. 154, 164, 615 A.2d 851, 856 (1992), rev'd, in part, on other grounds, 538 Pa. 193, 647 A.2d 882 (1994) (finding that determination of whether defendants' failure to disclose vital negative information about plaintiffs constituted outrageous and extreme conduct was an evidentiary question for trier of fact).

Applying these principles of the first prong to the case at hand, we note that WCA was the agency responsible for the selection of the Crawfords as the foster family of the plaintiffs. (Compl. ¶ 14; Am. Compl. ¶ 14). Plaintiffs were involuntarily committed to this foster home (Compl. ¶ 27, Am.Compl. ¶ 27) and were apparently subject to the authority of the defendants. Plaintiffs aver that defendants knew or should have known prior to the placement that a member of the Crawford family was on a child abuse listing (Compl. ¶ 29, Am. Compl. ¶ 29). Further, plaintiffs contend that defendants were deliberately indifferent and grossly negligent, especially in light of the fact that defendants were verbally notified by the plaintiffs as to the sexual abuse (Compl. ¶¶ 31, 37; Am. Compl. ¶¶ 31, 37). Accepting the facts alleged as true, we find that plaintiffs' contentions are strong enough to support a finding by the trier of fact that the defendants' actions constituted extreme and outrageous conduct. Cf. McNeal v. City of Easton, 143 Pa.Cmwlth. 151, 158, 598 A.2d 638, 641 (1991) (Court held summary judgment proper in favor of defendants on issue of intentional infliction of emotional distress where plaintiff never informed defendants of third-party's conduct and where defendants were not accused directly of any extreme or outrageous conduct).

Second, the plaintiffs carry the burden of proving that the defendants' conduct was intentional or reckless. The word "intent" connotes an actor's desire to cause the consequences of his act, or that he believes that the consequences are substantially certain to occur. Restatement (Second) of Torts, § 8A. In contrast, an actor's conduct is considered in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do. He must know or have reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is greater than that which constitutes only negligent conduct. Restatement (Second) of Torts, § 500.

Applying these principles to the case at hand, and assuming all alleged facts as true, defendants' averred conduct appears to fall within the definition of recklessness. According to plaintiffs, defendants had a duty to the plaintiffs pursuant to federal statutes and they had reason to know of the dangerousness of the Crawford home and of the ongoing instances of sexual abuse against the plaintiffs. Further, reckless conduct has been defined as involving the disregard of, or indifference to, consequences, under circumstances involving danger to life or safety to others, although no harm was intended. Black's Law Dictionary 1270 (6th ed. 1990). To a fact-finder, the risk defendants took in not acting on this information may be unreasonable, especially in light of the "easily perceptible danger of death or substantial physical harm" alleged by Plaintiffs. Restatement (Second) of Torts, § 500, cmt. a.

The third prong requires that the defendants' conduct cause the emotional distress. Although plaintiffs state that the Crawfords' son was the direct cause of the harm, the plaintiffs aver that defendants are the proximate cause of the distress due to the breach of their statutory duty to investigate the reported activities in the household (Compl. ¶¶ 76, 79; Am. Compl. ¶¶ 73, 76). We note that the extreme and outrageous conduct required for this tort may arise from an actor who is in a position, or a relation with the other, giving him actual or apparent authority over the other, or power to affect his interests. Restatement (Second) of Torts, § 46, cmt. e. This prong is easily met by plaintiffs' allegations in the complaint.

The fourth prong mandates that the distress be severe. The Restatement addresses the issue of proof of severe emotional distress in comment j to ยง 46 of the Restatement (Second) of Torts. It states that severe emotional distress may include severe anguish, mental or nervous shock, as well as all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and nausea. However, these symptoms must be severe for liability to attach. Whether severe ...

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