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D.V. v. Westmoreland County Children's Bureau


March 3, 2008


The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

The Honorable Nora Barry Fischer


Defendant Carol Patterson (hereinafter "Patterson") has moved to dismiss Plaintiff D.V.'s suit, stating that the Amended Complaint sets forth a professional liability claim for which Plaintiff has failed to file a certificate of merit as required by Pa.R.C.P. 1042.3.*fn1 Patterson urges the Court to find that the Plaintiff's claims against her arose out of her actions as a licensed psychologist. (Docket No. 18 at pp. 7-8). As explained below, however, a failure to file such a certificate in this case is not fatal to Plaintiff's claims because the complaint is based on alleged violations of the First and the Fourteenth Amendment rights, which are actionable under federal law pursuant to 42 U.S.C. § 1983. (Docket. No. 16 at pp. 65-90).

Factual Summary

Plaintiff's Amended Complaint alleges that Defendant Westmoreland County Children's Bureau and the individually named employees of that Agency abused the authority conferred on them by their official status in enforcing state child welfare laws. Further, he alleges that the Defendants, acting under color of state law, jointly and individually deprived D.V. of his rights as guaranteed to him by the First and the Fourteenth Amendments. Patterson is a licensed psychologist and frequent contractor with the Westmoreland County Children's Bureau. Patterson produced, at the behest of the County Defendants, a report which allegedly resulted in one of the instances in which D.V.'s custodial relationship with his children was suspended. (Docket No.16 at pp. 16-18). It is Patterson's Motion to Dismiss that is addressed here.


Under Bell Atl. Corp. v. Twombly, --- U.S.---, 127 S.Ct. 1955 (2007), a claim must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) if the Plaintiff fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S.Ct. at 1963 (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).*fn2

See Phillips v. Count of Allegheny, --- F.3d ----, 2008 WL 305025, at *6 (3d Cir. 2008) (declining to read Twombly "so narrowly as to limit its holding on plausibility to the antitrust context" and noting that plausibility is related to the requirement of a Rule 8 "showing").

"Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 127 S.Ct. at 1965. As still required post-Twombly, the Court accepts all well-pled material allegations in Plaintiff's Complaint as true and draws all reasonable inferences therefrom in his favor. Id. at 1964-65 & 1969 n.8. Finally, on a motion to dismiss, a court may consider some evidence beyond a complaint (and the attached exhibits) "including public records..., documents essential to plaintiff's claim which are attached to defendant's motion, and items appearing in the record of the case." Core Const. & Remediation, Inc. v. Village of Spring Valley, NY, Civil Action No. 06-CV-1346, 2007 U.S. Dist. LEXIS 73069, 2007 WL 2844870, at *2 (E.D. Pa. Sept. 27, 2007) (citing Oshiver v. Levin, 38 F.3d 1380, 1380 n.1 and n.2 (3d Cir. 1995)) (internal citation omitted).


Patterson correctly cites case law regarding the interpretation of Rule 1042.3 in diversity medical malpractice actions. Indeed, the application of Pa.R.C.P. 1042.3 was justified in the cited diversity actions because, in those cases, it was outcome determinative and, thus, substantive under Erie for choice of law analysis purposes. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938); Velazquez v. UPMC Bedford Memorial Hosp. 338 F.Supp.2d 609, 613 (W.D.Pa. 2004); Ditch v.Waynesburg Hospital, 917 A.2d 317 (Pa. Super. 2007). However, here the jurisdiction of this Court arises under 28 U.S.C.A. § 1331, the general federal question statute, obviating the need to undertake the Erie choice of law analysis and requiring the application of federal procedural and substantive law.

Case law makes it clear that the standards for determining a violation of the United States Constitution differ from those for determining whether a defendant has committed a tort actionable under state law. See Daniels v. Williams, 474 U.S. 327, 328 (1986);*fn3 see also Baker v. McCollan, 443 U.S. 137, 146 (1979).*fn4 Thus, it makes no difference how Defendant Patterson characterizes the claims: they remain federal claims, actionable on federal grounds.

This line of reasoning is further supported by noting that a civil rights statute providing liability for deprivation of rights under color of law is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by the Constitution or federal statutes. Maher v. Gagne, 448 U.S. 122, 129 n. 11 (1980). Thus, whenever a plaintiff files a §1983 claim, the court must look to the underlying substantive right that was allegedly violated to determine whether that right was conferred by federal law. Id. Section 1983 offers no remedy for abuses that do not violate federal law. Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992). In this § 1983 case, the alleged violations concern Plaintiff's First and Fourteenth Amendment rights under the United States Constitution.

Equally unavailing is the preemption argument on D.V.'s part. To this end, D.V. cites the Supreme Court decision in Felder v. Casey, 487 U.S. 131 (1988), arguing that § 1983 preempts Rule 1042.3.*fn5

Pertinent to this case is the Felder Court's dicta on whether the state notice-of-claim provision would be applicable to § 1983 actions brought in federal courts. The specific query was whether the state statute was "indispensable" to the federal scheme of justice, requiring the federal court to borrow it under 42 U.S.C. § 1988.*fn6 Id., at 140. The reasoning in the Felder case built upon the rationale proffered in an earlier § 1983 case, Wilson v. Garcia, 471 U.S. 261 (1985). The Wilson Court acknowledged that the absence of a specific statute of limitations in the civil rights statutes left a void in the federal law, which necessitated adopting a local time limitation as federal law. Pursuant to § 1988, the Court followed a "three-step process."

"First, courts are to look to the laws of the United States 'so far as such laws are suitable to carry [the civil and criminal civil rights statutes] into effect.' [42 U.S.C. § 1988.] If no suitable federal rule exists, courts undertake the second step by considering application of state 'common law, as modified and changed by the constitution and statutes' of the forum state. Ibid. A third step asserts the predominance of the federal interest: courts are to apply state law only if it is not 'inconsistent wit the Constitution and laws of the United States.' Ibid."

Wilson, 471 U.S. at 267 (citing Burnett v. Grattan, 468 U.S. 42, 47-48 (1984)).

Here, the Court need not go beyond the first step. Pennsylvania's Rule 1042.3 is a procedural requirement in the state courts. Its goal is to weed out clearly non-meritorious lawsuits early in the litigation process. See Warren v. Folk, 886 A.2d 305, 309 (2005). As such, this state rule is not vital to the adjudication of federal issues because the federal laws address the same concern through F.R.C.P. Rule 11(b)*fn7 and F.R.C.P. Rule 26(a)(2).*fn8 Federal rules of procedure, therefore, do not leave a void to be filled by the Pennsylvania rule 1042.3, obviating the need to import this rule into the federal judicial system.


It is well established that defendants do not have the luxury of choosing the legal theory on which they may be sued. Here, the argument on which Patterson relies fails to bear upon the theory on which the plaintiff seeks to build his case, namely, the deprivation of his rights secured under 42 U.S.C.§ 1983. Given the Court's analysis above, Rule 1042.3 is inapplicable. Accordingly, failure to file a certificate of merit is not sufficient grounds for dismissal. An appropriate order follows.

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