United States District Court, E.D. Pennsylvania
January 30, 2004.
VALENTINO C., et al.
SCHOOL DISTRICT OF PHILADELPHIA, et al
The opinion of the court was delivered by: HERBERT HUTTON, District Judge
MEMORANDUM AND ORDER
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
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,
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
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
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
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
Plaintiffs, Valentino and his parents, filed suit on May 16, 2001
against the School District, the Superintendents of the
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.
II. LEGAL STANDARD
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.
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
III. DEFENDANTS MOTION FOR SUMMARY
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
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.
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 . . .
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
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
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
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
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
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
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
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
b. Forwarding records under §
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
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.
. . ." 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)
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
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
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
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
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
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
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
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
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)
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.
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
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
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
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
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.
IV. PLAINTIFFS' CROSS-MOTION FOR PARTIAL
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,
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.
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
(4) Defendants Jay W. Lane and Andrea Cross' Motion for Summary
Judgment as to Count IV 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;
(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.