The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS
Pending before the Court is a Motion to Dismiss Plaintiffs' Complaint ("the Motion") filed by two of the Defendants in the above-captioned case, the Borough of Coaldale ("Borough") and Shawn Nihen ("Nihen"), on May 19, 2006. (Rec. Doc. 1-4). For the reasons that follow, the Motion shall be denied. PROCEDURAL HISTORY:
On January 24, 2006, Plaintiffs Ronald and Peggy Hill (collectively, "Plaintiffs") filed a six-count Complaint in the United States District Court for the Eastern District of Pennsylvania. Named as Defendants are the Borough; Nihen, both individually and in his official capacity as Police Chief of the Borough; Gregory Altenbach; Shawn and Annette Becker; and Christopher Frets. (Rec. Doc. 1-2).
On December 11, 2006, the District Court for the Eastern District of Pennsylvania transferred this action to this Court pursuant to 28 U.S.C. § 1406(a) because venue was improper in the Eastern District. (Rec. Doc. 2-3).
However, prior to this action's transfer, on May 19, 2006, the Borough and Nihen filed the instant Motion, which remains pending. Although no Reply Brief has been filed to date, the time in which to do so has long since passed, and the Motion is, therefore, ripe for disposition.
In considering a motion to dismiss, a court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d 310 (3d Cir. 1986).
As required by the aforesaid standard of review, for the purposes of our discussion here, we accept as true all of the allegations set forth in Plaintiffs' Complaint. (Rec. Doc. 1-2). Accordingly, the following recitation of the facts is taken therefrom.
On or about January 23, 2004, James P. Hill ("Hill"), then seventeen (17) years of age, was visiting Gregory Altenbach ("Altenbach"), then eighteen (18) years of age, at Altenbach's residence, a home rented by Altenbach's mother, Annette Becker ("Mrs. Becker"), and stepfather, Shawn Becker ("Mr. Becker"). Hill was visiting the home, as he had on prior occasions, because he and Altenbach were friends.
At the time of Hill's January 23, 2004 visit, Altenbach was approximately one (1) month beyond his eighteenth birthday, at which time he had either received a .22 caliber semi-automatic rifle ("rifle") as a birthday gift from his mother and stepfather (collectively, "the Beckers") or had purchased it himself, with the Beckers' knowledge and agreement. Whatever the exact circumstances of the rifle's acquisition, the Beckers knew of Altenbach's possession of the rifle, and, accordingly, the rifle's presence in their home. Plaintiffs allege that the presence of the rifle in the Beckers' home and the Beckers' knowledge thereof were problematic because on or about January 23, 2004, Mr. Becker was on probation or parole and was not permitted to have firearms in his residence.
Plaintiffs further allege that the presence of the firearm in the Beckers' home was particularly troublesome because the Police Chief of Coaldale at that time, Nihen, knew of the rifle and the condition(s) of Mr. Becker's parole or probation that prohibited the presence of such weapons in the Becker home, and yet failed to take action thereupon. Nihen is alleged to have known of Altenbach's ownership of the rifle, and its presence in the Beckers' home, as a result of his close friendship with Altenbach, who often visited the Police Chief's office. In fact, Plaintiffs allege that prior to Hill's January 23, 2004 visit to the Becker home, Nihen also knew that Altenbach had engaged in criminal conduct, but had "overlooked, disregarded, or condoned such actions . . . , leading Defendant Altenbach to conclude that he was 'invincible' or 'untouchable' by legal authorities." (Rec. Doc. 1-2, ¶ 22).
During Hill's January 23, 2004 visit, he and Altenbach spent at least a portion of their time in Altenbach's bedroom with Christopher Frets ("Frets"). While therein, Altenbach picked up the aforementioned rifle, which was loaded and leaning into a corner in the room, and approached Hill, who was seated on the other side of the room. Although Hill had on several occasions requested to look at the rifle, Altenbach refused such requests, and then approached Hill with the rifle pointed at Hill. Hill responded by asking ...