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United States District Court, E.D. Pennsylvania

January 30, 2004.

VALENTINO C., et al.

The opinion of the court was delivered by: HERBERT HUTTON, District Judge


Presently before the Court are Defendants' Motion for Summary Judgment (Docket No. 44), Plaintiffs' response and Cross-Motion for Partial Summary Judgment (Docket No. 52), and Defendants' reply thereto (Docket No. 54).


  This case arises out of the School District of Philadelphia's ("School District" or "District") alleged violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.

  When this suit was filed on May 16, 2001, Valentino was a 14 year old boy residing in Philadelphia. In May 1998, Valentino was classified by the School District as a student eligible for services under the IDEA. Valentino was diagnosed with multiple disabilities, including attention deficit hyperactivity disorder, Page 2 oppositional defiant disorder, mixed developmental learning disorder, and depression. As a result, an Individualized Education Plan ("IEP") was issued for the school year 1998-1999 ("1998 IEP").*fn2

  In the 1998-1999 school year, Valentino was enrolled in the eighth grade at the Julio De Burgos Bilingual Middle School ("De Burgos"), which is part of the Philadelphia public school system. According to Plaintiffs, Valentino was not placed in a full time emotional support class of eight students, as required by his IEP, but rather, was placed in a part-time learning support class of twenty or more students. During the spring of 1999, Valentino3 was assigned to the homeroom of an apprentice teacher, Jay W. Lane.

  On April 28, 1999, Valentino approached Lane's desk, and searched or appeared to search through papers on the desk. Lane approached the desk and ordered Valentino to stop. According to Defendants, Valentino picked up a student desk and moved toward Lane, as if to strike him. In his affidavit, Valentino states that he picked up a chair, not a desk, because he was frightened of Lane. See Valentino Aff. at ¶ 2 (Docket No. 52). Both left the Page 3 classroom and went to the school's main office. In accordance with School District policy, the police were called and Valentine was arrested. That afternoon, Lane filed a police incident report complaining that Valentino assaulted him by picking up the desk and threatening him with it.

  At the police district headquarters, Valentine was placed in a holding cell, where he allegedly remained for twenty-one hours. Plaintiffs allege that the school failed to send Valentine's student records or medical records to the Police Department. See PL's Am. Compl. at ¶ 20a (Docket No. 47, Ex. A). Lane never pressed charges and Valentine returned to school the next day. See Pl's Am. Compl. at ¶ 23; Eduardo Cortes Dep. at 23 (Docket No. 47, Ex. 8). No charges were brought against Valentino.

  A second incident occurred on June 8, 1999. Plaintiffs offer two different accounts of the events. According to their Amended Complaint, school security officer Cross struck Valentino while he was standing in the hallway of his school. According to Valentino himself, he was standing in the main office when Cross came up behind him and struck him in the back of his head. See Valentino C. Dep. at 38-40 (Docket No. 47, Ex. 11).

  On June 18, 1999, a due process hearing convened to address Valentine's parents' concerns regarding Valentine's IEP for the 1999-2000 school year. Both parents had signed School District consent forms to re-evaluate Valentine. See Docket No. 47, Exs. 14 & 15. The matter was resolved between the parties and an Agreement Page 4 and Order was issued incorporating the terms of the agreement. As a result, a new IEP was developed for Valentino over several meetings ending on August 12, 1999 ("1999 IEP"). Valentino's parents consented to the new IEP. The 1999 IEP provided for, among other things, monthly or as needed counseling for Valentino for one year, and a "behavior shapist, psychologist, visitations as needed by parents." See Pl.'s Am. Compl. at ¶ 37; Valentino C. IEP dated Aug. 12, 1999, at § V (Docket No. 52).

  School District records show that Valentino was absent for 88 school days, was late twice, and was suspended for a total of six days during the 1998-1999 school year. During the 1999-2000 school year, Valentino was once again enrolled in the eighth grade at De Burgos. In contrast to the previous academic year, Valentino missed only 29 days, was not late, and was suspended only once. The next academic year, 2000-2001, Valentino was assigned to Thomas A. Edison High School as a ninth grader but was absent for 174 days, all of which were unexcused. See History Profile of Valentino C., dated Apr. 24, 2002 (Docket No. 47, Ex. 7). According to Valentino's father, Valentino was enrolled in a charter school, Nueva Esperanza, at the beginning of the 2000-2001 school year. See Eduardo Cortes Dep., at 29-30 (Docket No. 47, Ex. 8). Valentino did not attend a District school during the 2001-2002 school year.

  Plaintiffs, Valentino and his parents, filed suit on May 16, 2001 against the School District, the Superintendents of the Page 5 Schools of the City of Philadelphia ("Superintendents"), teacher Jay W. Lane, school security officer Andrea Cross, and De Burgos school principal Nellie Hooks. On June 23, 2003, this Court granted Defendants' motion for summary judgment for alleged violations under 42 U.S.C. § 1983 and denied, with leave to renew, Defendants' motion for summary judgment as to Plaintiffs' state law claims. Further, the Court granted Plaintiffs' motion to amend their complaint to add two claims under the IDEA. See Valentino C. v. School District of Philadelphia, No. 01-2097, 2003 WL 177210 (E.D. Pa. Jan. 23, 2003). In their Amended Complaint, Plaintiffs allege the following causes of action: (1) violation of the IDEA; (2) violation of the IDEA'S stay-put provision, 20 U.S.C. § 1415(j); (3) false imprisonment of Valentino; (4) battery upon Valentino; (5) intentional infliction of emotional distress upon Valentino; (6) negligent infliction of emotional distress upon all Plaintiffs; and (7) assault upon Valentino. Defendants now move for summary judgment against all claims.


  Summary judgment is appropriate "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 party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The party moving for summary judgment has the initial burden of showing the basis for its motion. See Celotex Corp. v. Catrett, Page 6 477 U.S. 317, 323 (1986). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to go beyond the mere pleadings and present evidence through affidavits, depositions, or admissions on file showing a genuine issue of material fact for trial. See id. at 324. The substantive law determines which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then there is a genuine issue of fact. See id.

  When deciding a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993). Moreover, a court may not consider the credibility or weight of the evidence in deciding a motion for summary judgment, even if the quantity of the moving party's evidence far outweighs that of its opponent. See id. Nonetheless, a party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. See Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir. 1992).


A. Count I: Violation of the IDEA

  Plaintiffs allege that the School District has not implemented the August 12, 1999 IEP in violation of the IDEA. The School Page 7 District argues that Plaintiffs are barred from bringing this claim because they have not yet exhausted their administrative remedies. Plaintiffs respond that exhaustion would be futile in this instance. The Court agrees with Plaintiffs.

  The Individuals with Disabilities Education Act requires states which accept federal funding for the education of disabled children to insure that those children receive a "free appropriate public education." 20 U.S.C. § 1415 (a). The heart of the entitlement to a "free appropriate public education" is provided through the IEP. See Joseph M. v. Southeast Delco School District, No. 99-4645, 2001 WL 283154, at *1 (E.D. Pa. Mar. 19, 2001) (citing Michael C., 202 F.3d at 646 n.2 (3d Cir. 2000)). Before a plaintiff can bring a claim for an IDEA violation, he must exhaust his administrative remedies, including a local due process hearing and an appeal to the state educational agency. See 20 U.S.C. § 1415(f). Although the policy of requiring exhaustion of remedies is a strong one, the exhaustion requirement is excused where recourse to IDEA administrative proceedings would be futile or inadequate. See W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995); Komninos v. Upper Saddle River Board of Education, 13 F.3d 775, 778 (3d Cir. 1994).

  Courts have found futility in cases in which a school district failed to implement the services promised in an IEP. In Joseph M., plaintiffs alleged that a school district violated the IDEA because it failed to implement the agreed upon recommendation in the IEP. Page 8

  The district court concluded that exhaustion was not required in this instance. See Joseph M., 2001 WL 283154, at *6-7; see also O.F. v. Chester Upland School District, No. 00-779, 2000 WL 424276 (E.D. Pa. Apr. 19, 2000) (waiving exhaustion requirement where school district allegedly did not comply with student's IEP); McKellar v. Commonwealth of Pennsoylvania, No. 98-4161, 1999 WL 124381 (E.D. Pa. Feb. 23, 1999) (same).

  Moreover, the legislative history of the IDEA supports the conclusion that failure to implement an IEP renders the exhaustion of administrative remedies futile. A Report submitted to the U.S. House of Representatives during consideration of revisions to the IDEA states in relevant part:

Typically, a parent is required to exhaust administrative remedies where complaints involve the identification, evaluation, education, placement, or the provision of a free appropriate public education to their handicapped child. However, there are certain situations in which it is not appropriate to require the use of due process and review procedures . . . before filing a law suit. These include complaints that . . . it would be futile to use due process procedures (e.g., an agency has failed to provide services specified in the child's . . . IEP).
H.R. Rep. No. 99-296, at 7 (1985) (emphasis added).

  Thus, contrary to the School District's assertion, Plaintiffs are not required to exhaust their administrative remedies before bringing a claim based on the District's alleged failure to implement an IEP.*fn3 As Defendant's only argument for summary Page 9 judgment as to this claim is Plaintiffs' failure to exhaust administrative remedies, and because issues of material fact may exist as to the implementation of the 1999 IEP, Defendant's motion is denied.

 B. Count II: Violations of Stay-Put Provision

  Plaintiffs also allege several violations of the IDEA's stay-put provision, 20 U.S.C. § 1415(j), by defendants Nellie Hooks, the Superintendents of Schools, and the School District. The conduct of Defendants will be addressed in three parts: (1) before April 28, 1999; (2) on April 28, 1999; and (3) after April 28, 1999.

  The stay-put provision states:

Except as provided in subsection (k)(7), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardians otherwise agree, the child shall remain in the then-current educational placement of such child, or if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.
20 U.S.C. § 1415(j). The provision applies to "disputes between parents and a school district about the appropriateness of a placement to address a student's disabilities." School District of Philadelphia v. Stephan M., No. 97-1154, 1997 WL 109586, at *2 (E.D. Pa. Mar. 10, 1997). The stay-put provision was "clearly designed to minimize the detrimental effects of delay in resolving disputes over educational programs . . .[and] ensures that a school cannot eject a child without complying with due process requirements." Tokarcik v. Forest Hills Sch. Dist., 665 F.2d 443, Page 10 453 (3d Cir. 1981) (emphasis added). Thus, the student is to "stay-put" in the "then-current educational placement" while due process or judicial proceedings pursuant to the IDEA take place. See Drinker v. Colonial School District, 78 F.3d 859, 864 (3d Cir. 1996. The student's "current educational placement" is the IEP "actually functioning when the `stay put' is invoked." Drinker, 78 F.3d at 867; see Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 625-26 (6th Cir. 1990).

  There is no violation of § 1415(j) if the student "stays put." To determine if a child's educational placement has been changed, the key is "whether the decision is likely to affect in some significant way the child's learning experience." DeLeon v. Susquehanna Community School District, 747 F.2d 149, 153 (3d Cir. 1984) (finding that change in method of transportation of handicapped child was not a change in educational placement). In 1997, Congress amended the IDEA to include provisions that primarily impacted the discipline of children with disabilities in schools. See 20 U.S.C. § 1415(k) (establishing procedures for placement of child with disability in an "alternative educational setting"). For instance, schools may, without triggering a change in a child's educational placement, suspend a child with a disability for up to ten days without having to provide for an "alternative educational setting." See 20 U.S.C. § 1415 (k) (1)(A); Dohmen ex rel. Dohmen v. Twin Rivers Public Schools, 207 F. Supp.2d 972, 977-978 (D. Neb. 2002); Farrin v. Maine School Admin. Dist. Page 11 No. 59, 165 F. Supp.2d 37, 41 (D. Me. 2001); Stephan M., 1997 WL 109586, at *2; Change of Placement for Disciplinary Removals, 34 C.F.R. § 300.519 (2003). Further, under § 1415(k)(9)(A), a school may report criminal conduct by a child with a disability to the appropriate authorities.*fn4

  1. Placement before April 28, 1999

  Although not entirely clear, Plaintiffs seem to claim that because Valentino's initial IEP was allegedly not implemented during the 1998-1999 school year, the IDEA'S stay-put provision was violated. Specifically, Plaintiffs allege that, rather than being placed in a full time emotional support class of eight students, Valentino was placed in a part time learning support class of twenty students at De Burgos. See PL's Am. Compl. at ¶ 13. Further, in his affidavit, Valentino's father states that Valentino was not "provided a certified special education teacher" during that year. See Eduardo Cortes Aff. at ¶ 2 (Docket No. 52). The District contends that Valentino did receive the special education services outlined in the 1998 IEP. Although the parties' dispute whether the School District fully implemented the 1998 IEP, the threshold issue before the Court is whether the stay-put provision Page 12 was violated during this time period.

  Under the provision, Valentine must remain in his "current educational placement." As the Third Circuit has noted, because the goal of § 1415(j) is to maintain the status quo, if an IEP has already been implemented, that IEP would be the proper placement. See Drinker, 78 F.3d at 867. However, when the "dispute arises before any IEP has been implemented, the current educational placement will be the operative placement under which the child is actually receiving instruction at the time the dispute arises." Id. at 867 (citing Thomas, 918 F.2d at 625-26 (finding that although no IEP was implemented, child was receiving five hours of home instruction per week and determining that was the current educational placement)) (emphasis added). Thus, even if Plaintiffs are correct that the IEP had not been fully implemented, Valentino's current educational placement for purposes of the stay-put provision would be Valentino's functioning placement at the time the dispute arose.

  Here, the functioning placement throughout the 1998-1999 academic year was the allegedly part-time learning support class at De Burgos. Thus, regardless of whether there were proceedings to ensure that Valentino received all of the support to which he was entitled to, Valentino was properly at his "then-current educational placement" at all times up to April 28, 1999 and no violation of the stay-put provision occurred.

  2. Placement on April 28, 1999 Page 13

  a. Calling the Police

  Next, Plaintiffs allege that, by calling the police on April 28, 1999, which resulted in Valentino's detention at police headquarters, the School District changed Valentino's educational placement without first conducting a hearing and thus violated the stay-put provision. The District counters that calling the police does not constitute a change in educational placement and thus, the IDEA'S stay-put provision does not apply in this instance.

  The few cases that have addressed the reporting of a student to the authorities pursuant to § 1415(k)(9)(A) have only done so tangentially, and have concluded that this does not amount to a change in educational placement. In Joseph M., the district court merely observed that a hearing officer determined that reporting a student to the authorities did not constitute a change of placement in violation of the IDEA. See 2001 WL 283154, at *3. The court also concluded that, where a disabled child commits a crime, § 1415(k)(9)(A) did not require schools to conduct a manifestation hearing before notifying the authorities.*fn5 Id. at *6. In Commonwealth v. Nathaniel M., the Massachusetts Appeals Court found that the school's reporting to the police of a juvenile for Page 14 possession of marijuana in school did not trigger a change in placement under the IDEA. See 764 N.E.2d 883, 886-87 (Mass. App. Ct. 2002). Thus, the scant caselaw available weighs against Plaintiffs' arguments.

  Moreover, Plaintiffs here have already brought a similar claim in their original complaint, which the Court previously dismissed.*fn6 See Valentino C., 2003 WL 177210, at *10. Specifically, Plaintiffs claimed that Defendants violated the Fourteenth Amendment Due Process clause when they called the police to arrest Valentino. Plaintiffs had argued that under the IDEA's stay-put provision, special education students are exempt from such "aversive techniques." The Court disagreed and stated, "Such a strained construction would have the illogical effect of removing all special education students from the reach of law enforcement for any illegal actions taken at school." Id.

  In light of the above, the Court now concludes that reporting a child with a disability to the appropriate authorities pursuant to § 1415(k)(9)(A) does not constitute a change in educational placement and that the provision does not require an administrative hearing before reporting a disabled child to the police. Accordingly, because there was no change in Valentino's educational placement on April 28, 1999, there was no violation of the IDEA'S Page 15 stay-put provision.

  b. Forwarding records under § 1415(k)(9)(B)

  On a related matter, Plaintiffs allege violation of the stay-put provision under § 1415(k)(9)(B). That section states:

An agency reporting a crime committed by a child with a disability shall ensure that the copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom it reports the crime.
20 U.S.C. § 1415(k)(9)(B). Plaintiffs interpret this provision to require the District to immediately forward Valentino's school and medical records to police after Valentino was arrested. See Pl's Am. Compl. at ¶ 42. Defendants admit that no records were forwarded to the police on April 28, 1999 or thereafter. However, Defendants interpret the records provision to apply only in a determination of "alternative educational settings."

  Besides this Court, only one other court has thus far addressed the requirements of § 1415(k)(9)(B). In Nathaniel M., plaintiff was a high school student appealing from the juvenile court's adjudication of delinquency for possession of two small bags of marijuana in school. The plaintiff asserted, among other things, a violation of § 1415(k)(9)(B) for his high school's failure to provide the police with his records and filed a motion to dismiss in Juvenile Court. In denying the motion, the Juvenile Court judge noted that § 1415(k)(9)(B) "does not say when records must be provided" and concluded that the IDEA "recognizes that such records would be relevant for placement and dispositional purposes. Page 16 . . ." Nathaniel M., 764 N.E.2d at 888 (emphasis added). The Massachusetts Appeals Court affirmed the finding of delinquency and noted that "there is no claim that the alleged lack of records affected the delinquency proceedings." Id.

  Moreover, on January 23, 2003, this Court previously dismissed Plaintiffs' claim that the failure to forward records to the police amounted to deliberate indifference under the Eighth Amendment.*fn7 In reaching its conclusion, the Court interpreted the statute as requiring the records to be sent "so that the student's disabilities can be properly considered in evaluating what punishment, if any, should be sought against the child." Valentino C., 2003 WL 177210, at *11 (emphasis added). The legislative history, although sparse, lends support to this interpretation of § 1415(k)(9)(B). It states that the records should be "transmitted for consideration by the person or persons making the final determination regarding the disciplinary action." H.R. Rep. No. 105-95, at 111 (1997) (emphasis added).

  The Court thus concludes that the purpose of § 1415(k)(9)(B) is to provide records to help determine what disciplinary action or educational placement changes should be made if a child commits a crime that has been reported to authorities. In this case, no disciplinary action or educational placement changes were contemplated for Valentino after he was released. Valentine's Page 17 teacher never pressed charges, Valentino's educational placement was not changed, and Valentino returned to school the next day. At worst, under these circumstances, the District's failure to forward records was one of technical non-compliance which did not result in any substantive deprivation. At all times on April 28, 1999, Valentino remained in his "then-current" educational placement at De Burgos.

  3. Placement after April 28, 1999

  Lastly, Plaintiffs allege that the stay-put provision was violated after April 28, 1999. See Pl.'s Am. Compl. at ¶ 40. However, Plaintiffs offer no proof to support such a claim. Defendants contend that there was no change in Valentino's then — current placement that occurred in violation of the IDEA.

  The undisputed facts are as follows. The day after the incident in Lane's homeroom, Valentino returned to school. On April 29, 1999, Valentino's mother consented to a re-evaluation of Valentino to determine his appropriate placement for the 1999-2000 academic year. See Sch. Dist. of Phila. Permission to Re-Evaluate Form, dated Apr. 29, 1999 (Docket No. 47, Ex. 14). In addition, on June 9, 1999, Valentino's father also consented to a re-evaluation. See Sch. Dist. of Phila. Permission to Re-Evaluate Form, dated June 8, 1999 (Docket No. 47, Ex. 15). In the interim, a due process hearing between the parents and the District occurred on June 18, 1999 to address the parents' concerns about Valentino's IEP for the 1999-2000 school year. The hearing led to an agreement between the Page 18 parties. See Docket No. 47, Ex. 3. A new IEP was developed over several meetings, ending at a meeting on August 12, 1999 in which Valentine's parents consented to the new program. Viewing the facts in the light most favorable to Plaintiffs, the non-moving party, a reasonable jury could not conclude that Defendants violated the IDEA'S stay-put provision after April 28, 1999. Valentine's 1998 IEP was not changed and his placement at De Burgos was not threatened. Further, Valentine's parents consented to the re-evaluation and were granted a due process hearing as well.

  Accordingly, because the Court concludes that no violation of the stay-put provision occurred before, on, or after April 28, 1999, Defendants' motion for summary judgment is granted in its entirety as to Count II.

 C. State Law Claims

  Plaintiffs' remaining claims are state law claims arising solely from the April 28, 1999 and June 8, 1999 incidents. Plaintiffs bring claims of false imprisonment, intentional infliction of emotional distress ("IIED"), and negligent infliction of emotional distress ("NIED") against the School District. Plaintiffs bring all of those claims and additional claims for battery and assault against the individual defendants, Jay Lane and Andrea Cross, in their official and individual capacities.

  1. School District

  The School District first asserts its right to immunity under Page 19 the Pennsylvania Tort Claims Act ("Tort Claims Act").

  The Pennsylvania Tort Claims Act grants broad immunity to local agencies and their employees.*fn8 Under the Act, local agencies are not liable for injuries caused by their own acts or the acts of their employees that constitute "a crime, actual fraud, actual malice or wilful misconduct," or by negligent acts unless they fall within one of eight categories. 42 Pa. Cons. Stat. Ann. § 8542(a). The eight exceptions to this grant of immunity concern negligent acts in the following areas: (1) vehicle liability; (2) care, custody, or control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks; and (8) care, custody or control of animals. Id. at § 8542(b).

  "Local agencies" is defined as "a government unit other than the Commonwealth government." Id. at § 8501. The School District is a local agency protected by the Act. See Jacoby v. Pollock, No. 97-5663-14-2, 1991 WL 429358, at *2 (Pa. Com. Pl. May 16, 1991); Vince v. Rinqqold School District, 499 A.2d 1148 (Pa. Commw. 1985).

  Because Plaintiffs' NIED claim does not fall into any of the enumerated exceptions to the Tort Claims Act for negligence, the Court grants the School District's summary judgment motion as to Page 20 the NIED claim. Similarly, under the Tort Claims Act, the School District is immune from Plaintiffs' intentional tort claims of false imprisonment and IIED. See Russoli v. Salisbury Township, 126 F. Supp.2d 821, 867-68 (E.D. Pa. 2000). Accordingly, summary judgment is granted in the School District's favor as to the state law claims.

  2. Jay Lane and Andrea Cross

  a. Immunity Issuss

  The Tort Claims Act provides that an employee of a local agency is liable for acts within the scope of his office or duties only to the same extent as his employer. See 42 Pa. Cons. Stat. Ann. § 8545.*fn9 Conversely, to the extent that the employee acted outside of his official duties, then the employee may be personally liable for the tortious conduct. See Neil v. Nepa, 36 Pa. D. & C. 3d 553, 555 (Pa. D. & C. 1985). Under § 8546, the employee is entitled to the defense of official immunity for conduct that "was authorized or required by law, or that [the employee] in good faith reasonably believed . . . was authorized or required by law" and for conduct that was "within the policymaking discretion granted to the employee by law." 42 Pa. Cons. Stat. Ann. § 8546(2), (3).

  However, under § 8550, an employee is not protected by the Page 21 local agency's immunity if his act constitutes a crime, actual fraud, actual malice, or willful misconduct. Id. at § 8550. Willful misconduct, for the purposes of tort law, has been defined by the Pennsylvania Supreme Court to mean conduct whereby the actor desired to bring about the result that followed or was aware that it was substantially certain to follow. See Russoli, 126 F. Supp.2d at 868 (quoting Evans v. Philadelphia Transportation Co., 212 A.2d 440 (Pa. 1965)). In other words, the term "willful misconduct" is synonymous with the term "intentional tort." See Russoli, 126 F. Supp.2d at 868 (citing King v. Breach, 540 A.2d 976, 981 (Pa. Commw. 1988)). Whether there has been "willful misconduct" is a judicial determination. See Russoli, 126 F. Supp.2d at 869.

  In this case, Lane and Cross ("Individual Defendants"), as school officials, summoned the police in response to Valentine's actions in the classroom on April 28, 1999. Regardless of whether Valentine picked up a chair in self-defense or a desk to strike Lane, the Individual Defendants faced an ambiguous situation to which the reasonable response would be to call the police. School District policy also required that any alleged assault by a student with a weapon on a school officer be reported to the police. See Sch. Dist. Policy 109.9 & 109.10 (Docket No. 47, Ex. 9). Accordingly, the Court finds that Plaintiffs have failed to demonstrate that Lane and Cross engaged in "willful misconduct" and the motion for summary judgment is granted in favor of Defendants Page 22 as to the false imprisonment claim (Count III) and to the extent Plaintiffs' battery (Count IV) and assault (Count VII) claims are based on the April 1999 events.

  The Court also determines that, as to the events of June 8, 1999, there is a question of material fact regarding whether the actions of Cross constituted assault and battery against Valentino. On that day, Cross allegedly struck Valentino in the back of the head without provocation. Defendants have not submitted any evidence to counter these allegations. Thus, to the extent Plaintiffs' assault and battery claims are based on the June 8, 1999 events, Defendant Cross's motion for summary judgment is denied.

  Finally, as discussed previously in Section III. C.1, Plaintiffs' NIED claim against the School District is barred by the Torts Claims Act. Consequently, under 42 Pa. Cons. Stat. Ann. § 8545, to the extent Lane and Cross are sued in their official capacities, they are also entitled to governmental immunity for the NIED claim.

  b. Count V: Intentional Infliction of Emotional Distress on Valentino

  Plaintiffs also pursue a claim for IIED against Lane and Cross. In order to sustain a claim for IIED, Plaintiffs must establish four elements: (1) the conduct of the defendant must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) the conduct must cause emotional distress; and (4) Page 23 the distress must be severe. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979); Kitchens v. County of Montgomery, No. 01-2564, 2002 U.S. Dist. LEXIS 2050, at *28 (E.D. Pa. Feb. 11, 2002). Morever, "[o]nly the most egregious conduct will be a sufficient basis for the tort" of IIED. Patterson v. School District of Philadelphia, No. 99-4792, 2000 WL 1020332, at *5 (E.D. Pa. July 19, 2000). "The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, utterly intolerable in a civilized society." Sostarecz v. Misko, No. 97-2112, 1999 WL 239401, at *12 (E.D. Pa. Mar. 26, 1999) (quoting Buczek v. First Nat'l Bank of Mifflintown, 531 A.2d 1122, 1125 (Pa. Super. 1987)).

  The Court must make "the initial determination of whether a defendant's conduct was so extreme and outrageous that recovery may be justified." Sostarecz, 1999 WL 239401, at *12. In Pennsylvania, recovery under IIED has generally been reserved for only the most abominable cases. See e.g., Chuy., 595 F.2d 1265 (defendant's team physician released to press information that plaintiff was suffering from a fatal disease when physician knew the information was false); Papieves v. Lawrence, 263 A.2d 118 (Pa. 1970) (defendant, after striking and killing plaintiff's son with an automobile, and after failing to notify authorities or seek medical assistance, buried the body in a field where it was discovered two months later and returned to parents); Banyas v. Page 24 Lower Bucks Hosp., 437 A.2d 1236 (Pa. Super. 1981) (defendants intentionally fabricated records to suggest that plaintiff had killed a third party which led to plaintiff being indicted for homicide).

  In this case, Plaintiffs allege that the Individual Defendants actions were extreme and outrageous. The record shows that, at worst, the Individual Defendants were responsible for summoning the police to school on April 28, 1999 and that Cross allegedly struck Valentine on June 8, 1999. These acts do not rise to the level of egregiousness described in the above cases. Further, the injuries allegedly suffered by Valentine are difficulty sleeping and nightmares. The record also shows that Valentine had nightmares and difficulty sleeping before April 1999. A 1996 psychological evaluation states that "[Valentine] has a history of problems going to sleep at night." See August 1, 1996 Psychological Evaluation by Donald A. Burstein, Ph.D. (Docket No. 47, Ex. 2); see also January 27, 1997 Psychiatric Evaluation by David Behar, M.D. (Docket No. 47, Ex. 1) ("[Valentine's] sleep is poor."). Accordingly, summary judgment is granted in favor of Defendants as to this claim.

  c. Count VI: Negligent Infliction of Emotional Distress on Valentine and his parents

  Plaintiffs' final claim is that of NIED on Valentine and his parents. As discussed above in Section III.C.2.a, Lane and Cross are entitled to governmental immunity under 42 Pa. Cons. Stat. Ann. § 8545 for the NIED claim to the extent they are sued in their Page 25 official capacities. Thus, the Court will examine Plaintiffs' NIED claim only to the extent it alleges that the Individual Defendants acted outside of their official capacities.

  To establish a claim of NIED under Pennsylvania law, a plaintiff must prove that (1) he or she was near the scene of an accident or negligent act; (2) shock or distress resulted from a direct emotional impact caused by the sensory or contemporaneous observance of the accident, as opposed to learning of the accident from others after its occurrence; and (3) he or she is closely related to the injured victim.*fn10 See Robinson v. The May Department Stores Co., 246 F. Supp.2d 440, 444 (E.D. Pa. 2003); Harvey v. Pilgrim's Pride Corp., No. 03-3500, 2003 WL 22880887, at *2 (E.D. Pa. Dec. 4, 2003). This cause of action is commonly invoked when the parent or other close relative witnesses an accident involving a child or a loved one. See e.g., Sinn v. Burd, 404 A.2d 672 (Pa. 1979). Further, manifestations of physical injury are necessary to sustain a claim for NIED. See Robinson, 246 F. Supp.2d at 445. Here, neither of Valentino's parents were "near the scene" of the April 1999 classroom incident nor the alleged June 1999 incident. Accordingly, their claims for NIED must fail.

  Valentino also brings a claim for NIED. Valentino's claim also fails under the bystander rule. However, although the Pennsylvania Supreme Court has not yet provided guidance, some Page 26 Pennsylvania Superior Courts have allowed claims for NIED under the "physical impact rule." See Brown v. Philadelphia College of Osteopathic Medicine, 674 A.2d 1130, 1134-36 (Pa. Super. 1996). The impact rule states that a plaintiff may recover for NIED when he "sustains bodily injuries, even though trivial or minor in character, which are accompanied by fright or mental suffering directly traceable to the peril in which the defendant's negligence placed the plaintiff . . ." Id.; Giannone v. Ayne Institute, 290 F. Supp.2d 553, 569 (E.D. Pa. 2003) (quoting Potere v. Philadelphia, 112 A.2d 100, 104 (Pa. 1955)). The injuries allegedly suffered by Valentine are nightmares and difficulty sleeping. As discussed previously, Valentine has had problems sleeping even before the April 1999 incident. Therefore, under either the bystander rule or the physical impact rule, Plaintiff has not proven that he suffered any severe emotional distress. Accordingly, summary judgment is granted for Defendants as to the NIED claim.


  Plaintiffs seek summary judgment on Count II, alleged violations of IDEA'S stay-put provision, of their Amended Complaint. Plaintiffs argue that, because Defendants admit they did not forward Valentine's records to the police on April 28, 1999, they are entitled to summary judgment.

  As discussed in Section III.B.2, this Court grants Defendants' motion for summary judgment as to Count II. Accordingly, Page 27 Plaintiffs' Cross-Motion is denied.


  For the reasons stated above, Defendants' motion for summary judgment is granted in part and denied in part.

  The Court grants Defendant School District's motion for summary judgment as to Plaintiffs' claims under the IDEA'S stay-put provision (Count II), and Plaintiffs' state law claims of false imprisonment (Count III), NIED (Count IV), and IIED (Count VI). Defendants Nellie Hooks and Superintendents of the Schools of the City of Philadelphia's motion for summary judgment as to Plaintiffs' claims under the IDEA'S stay-put provision (Count II) is also granted. Defendants Jay W. Lane and Andrea Cross's motion for summary judgment is granted as to the false imprisonment claim (Count III), IIED claim (Count V), NIED claim (Count VI), and to the extent Plaintiffs' battery (Count IV) and assault (Count VII) claims are based on the April 28, 1999 incident.

  The Court denies Defendant School District's motion for summary judgment as to Plaintiffs' claim for violations of the IDEA (Count I). The Court also denies Defendant Cross's motion for summary judgment to the extent Plaintiffs' battery (Count IV) and assault (Count VII) claims are based on the June 8, 1999 incident. Lastly, the Court denies Plaintiffs' Cross-Motion for Partial Summary Judgment.

  An appropriate Order follows. Page 1


  AND NOW, this ___ day of January, 2004, upon consideration of Defendants' Motion for Summary Judgment (Docket No. 44), Plaintiffs' Answer to Defendants' [Second] Motion for Sumary Judgment and Cross-Motion for Partial Summary Judgment (Docket No. 52), Defendants' reply thereto (Docket No. 54), and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Docket No. 44) is GRANTED IN PART and DENIED IN PART as follows:

  (1) Defendant School District of Philadelphia's Motion for Summary Judgment is DENIED as to Count I;

  (2) Defendants Nellie Hooks, Superintendents of Schools, and School District of Philadelphia's Motion for Summary Judgment is GRANTED as to Count II;

  (3) Defendants Jay W. Lane, Andrea Cross, and School District of Philadelphia's Motion for Summary Judgment is GRANTED as to Count III;

  (4) Defendants Jay W. Lane and Andrea Cross' Motion for Summary Judgment as to Count IV is GRANTED to the extent Page 2 Plaintiffs' claims are based on the April 28, 1999 incident, and Defendant Cross's Motion for Summary Judgment is DENIED to the extent the claims are based on the June 8, 1999 incident;

  (5) Defendants Jay W. Lane and Andrea Cross' Motion for Summary Judgment as to Count V is GRANTED;

  (6) Defendants Jay W. Lane and Andrea Cross' Motion for Summary Judgment as to Count VI is GRANTED; and

  (7) Defendants Jay W. Lane and Andrea Cross' Motion for Summary Judgment as to Count VII is GRANTED to the extent Plaintiffs' claims are based on the April 28, 1999 incident, and Defendant Cross's Motion for Summary Judgment is DENIED to the extent the claims are based on the June 8, 1999 incident.

  IT IS FURTHER ORDERED that Plaintiffs' Cross-Motion for Partial Summary Judgment (Docket No. 52) is DENIED.

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