Jean v. Bucknell University

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN JEAN, No. 4:20-CV-01722

Plaintiff, (Chief Judge Brann)

v.

BUCKNELL UNIVERSITY;

NATIONAL FRATERNITY OF

KAPPA DELTA RHO; KAPPA

DELTA RHO – IOTA CHAPTER;

WILLIAM C. BABCOCK; DILLON

DUTTERA; NICHOLAS

ZANGHETTI,

Defendants.

MEMORANDUM OPINION

SEPTEMBER 9, 2021

Defendant Bucknell University moves to dismiss claims brought against it

by one of its students, John Jean, relating to alleged hazing Jean suffered while

seeking to join a fraternity on Bucknell’s campus. In his original Complaint, Jean

named Bucknell as a defendant in three causes of action: (1) negligence; (2)

“hazing”; and (3) negligence per se. The Court dismissed these claims, holding that

the allegations failed to support the claims against Bucknell; however, the Court

did so without prejudice, granting Jean leave to amend. Jean obliged and filed his

Amended Complaint, which restated the three causes of action against Bucknell

but also included additional allegations concerning other instances of hazing on

Bucknell’s campus, the culture of underage drinking at Bucknell, and the school’s

failure to publish a fraternity recruitment handbook. Again, Bucknell argues that

the allegations fail to support the claims against it. Again, the Court agrees. For the

reasons provided below, Bucknell’s motion to dismiss is GRANTED.

I. BACKGROUND

A. The Original Complaint

On September 22, 2020, Jean filed suit against Bucknell, the National

Fraternity of Kappa Delta Rho (“Kappa Delta Rho”), the Kappa Delta Rho Iota

Chapter (“Iota Chapter”), and three members of the Iota Chapter,1 alleging that he

was hazed during an event that took place from September 10–11, 2020.2

Specifically, Jean alleged that after receiving a “bid” (invitation) to “pledge” (join)

the Iota Chapter, he and the other pledge members were instructed to attend an

initiation event.3 At the event, the pledge class was ordered to play a drinking game

that involved the consumption of a copious amount of vodka, and, over the course

of the evening, Jean became highly intoxicated.4 When Jean ultimately attempted

to leave the event, he was confronted by a fellow pledge member who pressured

him to stay and then punched him in the face.5 Jean fell to the ground, started

1 The three members are William Babcock, Dillon Duttera, and Nicholas Zanghetti.

2 Doc. 1.

3 Id. ¶¶ 18–19.

4 Id. ¶¶ 20–23.

5 Id. ¶ 26.

vomiting, and then lost consciousness.6 Jean was taken to the hospital, where he

was treated for alcohol poisoning, a heady injury / concussion, and several other

physical injuries sustained over the course of the evening.7

Relevant here, the Complaint contained several allegations of events

preceding the incident that arguably bear on Bucknell’s possible liability. Jean

alleged that in 2009, Bucknell banned the Iota Chapter from campus for three years

due to a hazing incident.8 Kappa Delta Rho also revoked the chapter’s recognition

for four years.9 The Iota Chapter eventually returned to campus and was required

to remain dry (alcohol-free) for one year.10 Additionally, Jean alleged that

Bucknell created “a permissive campus environment for fraternity life” that

resulted in students drinking on a regular basis “in the open, out in the street, on

campus, within full view of campus security and admissions officials.”11 However,

the Complaint did not allege that Bucknell discipled the Iota Chapter between 2009

and 2020. The Complaint also did not allege that Bucknell knew about the

September 10, 2020 initiation, approved the event, or in any way promoted or

funded it.

6 Id. ¶ 27.

7 Id. ¶¶ 29–32.

8 Id. ¶ 33.

9 Id. ¶ 34.

10 Id. ¶ 35.

11 Id. ¶ 56.

As noted, the Complaint asserted three claims against Bucknell. The three

claims were for hazing (Count I), negligence (Count IV), and negligence per se

(Count VI).12

B. Bucknell’s First Motion to Dismiss

On November 24, 2020, Bucknell filed a motion to dismiss the three claims

brought against it, arguing that Jean failed to state a claim upon which relief can be

granted. Bucknell sought to dismiss Jean’s negligence claim (Count IV) on the

basis that Bucknell owed no legal duty to Jean, and Jean’s hazing and negligence

per se claims (Counts I and VI, respectively) on the basis that it did not violate

Pennsylvania’s anti-hazing statute (the statutory predicate for both claims).13

The Court granted Bucknell’s motion on April 16, 2021, dismissing without

prejudice Jean’s claims against Bucknell.14 In its Memorandum Opinion, this Court

outlined the bases for its ruling.15 First, the Court explained that the allegations did

not warrant the creation of a new common-law duty encompassing Bucknell’s

conduct in this case.16 Analyzing the factors courts consider when determining

whether to formulate a new duty of care, promulgated by the Pennsylvania

12 Id. ¶¶ 52–64, 83–96; 118–120.

13 Doc. 21.

14 Doc. 58.

15 Doc. 57 (reported as Jean v. Bucknell University, et al., 2021 WL 1516467 (M.D. Pa. Apr. 16,

2021)).

16 Id. at *4–5.

Supreme Court in Althaus ex rel. Althaus v. Cohen,17 the Court emphasized factors

one (the relationship between the parties) and four (the consequences of imposing

a new duty on Bucknell).18 The Court held that the relationship between Bucknell

and Jean is simply that of an ordinary university-student relationship, which does

not justify imposing a higher duty of care than what is already provided for by

Pennsylvania law.19 Additionally, the Court found that imposing a heightened duty

of care on Bucknell—that is, requiring it to prevent hazing—would place a

massive burden on Bucknell’s resources and capabilities.20 Accordingly, both

factors weighed against creating a new duty, and the remaining factors were

insufficient to counterbalance their effect.21

Second, the Court rejected Jean’s argument that Bucknell is subject to the

standards of care set forth in sections 314A, 344, and 323 of the Restatement

(Second) of Torts.22 The Court concluded that the facts in the Complaint did not

satisfy any of the factual predicates required to justify imposing a duty of care

under these sections of the Restatement.23

17 756 A.2d 1166, 1169 (Pa. 2000).

18 Jean, 2021 WL 1516467 at *4–5.

19 Id. at *4.

20 Id. at *5.

21 Id.

22 Id. at *5–7.

23 Id.

Third, the Court held that Bucknell’s alleged behavior did not amount to a

violation of Pennsylvania’s anti-hazing statute.24 The Court explained that because

Jean did not allege that Bucknell had any knowledge of, or provide any support or

authorization for, the September 10, 2020 initiation, it could not conclude that

Bucknell either facilitated or promoted the hazing that Jean experienced.25

Moreover, even if Jean could establish that Bucknell facilitated or promoted the

hazing event, the Complaint did not allege facts showing that Bucknell’s

facilitation or promotion was intentional, knowing, or reckless.26

In dismissing the claims against Bucknell, the Court granted Jean leave to

amend the Complaint.27

C. The Amended Complaint

Fourteen days after the Court’s ruling, Jean filed the Amended Complaint.28

In addition to the allegations in the Complaint (outlined above), the Amended

Complaint contains new allegations concerning three general topics. First, the

Amended Complaint details other instances of hazing on Bucknell’s campus

carried out by separate student and university organizations between 2015 and

2019:

24 Id. at *7–8.

25 Id. at *8.

26 Id.

27 Id.

28 Doc. 59.

 Men’s Swimming and Diving Teams: In April 2015, they were found

responsible for hazing involving, among other things, underage

drinking. The teams were placed on probation for two years.29

 Bison Chips (an all-male acapella group): In September 2016, the

group was found responsible for hazing involving underage drinking

and certain unspecified physical activities. In 2018, it was again found

responsible for hazing involving, among other things, underage

drinking. The group was suspended for two years.30

 Phi Gamma Delta fraternity: In September 2017, the fraternity was

found responsible for hazing because existing fraternity brothers

forced pledges to carry their golf bags. The fraternity received a five-

month social suspension.31

 Tau Kappa Epsilon fraternity: In 2019, the fraternity was found

responsible for hazing involving, among other things, the use of shock

collars on members, throwing darts at members, slapping members,

and underage drinking.32

Second, the Amended Complaint contains allegations that in the fall of 2020,

Bucknell failed to provide prospective fraternity and sorority members with a

formal recruitment handbook, a document that was otherwise distributed each year.

This handbook allegedly contained information and resources on fraternity

recruitment, pledge initiation, and hazing.33

29 Id. ¶¶ 47–49.

30 Id. ¶¶ 44, 46.

31 Id. ¶ 45.

32 Id. ¶ 43.

33 Id. ¶¶ 18–19.

Third, Jean alleges in the Amended Complaint that Bucknell maintained a

“laissez faire” approach to underage drinking, allowing students to consume

alcohol on its campus out in the open.34

II. LAW

Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff has failed to “state a claim upon

which relief can be granted.” A motion to dismiss “tests the legal sufficiency of a

claim”35 and “streamlines litigation by dispensing with needless discovery and

factfinding.”36 “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of

a dispositive issue of law.”37 This is true of any claim “without regard to whether it

is based on an outlandish legal theory or on a close but ultimately unavailing

one.”38

Following the Roberts Court’s “civil procedure revival,”39 the landmark

decisions of Bell Atlantic Corp. v. Twombly40 and Ashcroft v. Iqbal41 tightened the

standard that district courts must apply to 12(b)(6) motions.42 These cases “retired”

34 Id. ¶¶ 71–72.

35 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.

Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)).

36 Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).

37 Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

38 Id. at 327.

39 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.

313, 316, 319–20 (2012).

40 550 U.S. 544 (2007).

41 556 U.S. 662 (2009).

42 Id. at 670 (citing Conley v. Gibson, 355 U.S. 41, 45–46 (1957))

the lenient “no-set-of-facts test” set forth in Conley v. Gibson and replaced it with a

more exacting “plausibility” standard.43

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’”44 “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”45 “Although the

plausibility standard does not impose a probability requirement, it does require a

pleading to show more than a sheer possibility that a defendant has acted

unlawfully.”46 Moreover, “[a]sking for plausible grounds . . . calls for enough fact

to raise a reasonable expectation that discovery will reveal evidence of

[wrongdoing].”47

The plausibility determination is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.”48 No matter

the context, however, “[w]here a complaint pleads facts that are ‘merely consistent

43 Id.

44 Id. at 678 (quoting Twombly, 550 U.S. at 570).

45 Id.

46 Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (Jordan, J.) (internal

quotation marks and citations omitted).

47 Twombly, 550 U.S. at 556.

48 Iqbal, 556 U.S. at 679.

with’ a defendant’s liability, it ‘stops short of the line between possibility and

plausibility of entitlement to relief.’”49

When disposing of a motion to dismiss, the Court “accept[s] as true all

factual allegations in the complaint and draw[s] all inferences from the facts

alleged in the light most favorable to [the plaintiff].”50 However, “the tenet that a

court must accept as true all of the allegations contained in the complaint is

inapplicable to legal conclusions.”51 “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.”52

As a matter of procedure, the United States Court of Appeals for the Third

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps. First, it

must take note of the elements the plaintiff must plead to state a claim.

Second, it should identify allegations that, because they are no more

than conclusions, are not entitled to the assumption of truth. Finally,

when there are well-pleaded factual allegations, the court should

assume their veracity and then determine whether they plausibly give

rise to an entitlement to relief.53

49 Id. at 678 (quoting Twombly, 550 U.S. at 557).

50 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

51 Iqbal, 556 U.S. at 678; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-bones’ allegations will

no longer survive a motion to dismiss.”).

52 Iqbal, 556 U.S. at 678.

53 Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

III. ANALYSIS

A. Negligence

Bucknell again seeks to dismiss Jean’s negligence claim (Count IV) on the

basis that it owed no legal duty to Jean. In response, Jean repeats his argument,

which the Court previously rejected, that the creation of a new common-law duty

is warranted under Althaus.54 Jean asserts that “the additional facts pleaded in [the

Amended Complaint] . . . tip the scales more in favor of finding a duty for

Bucknell.”55 The Court disagrees.

“The primary element in any negligence cause of action is that the defendant

owes a duty of care to the plaintiff.”56 A plaintiff may establish duty by looking to

standards of care previously recognized and accepted under state common law.57

Or, where no relevant duty of care applies, a plaintiff may ask a court to articulate

a new duty.58 Acknowledging that the concept of duty is rife with amorphous

considerations of public policy, the Pennsylvania Supreme Court in Althaus set

54 Doc. 79 at 7 (citing Althaus, 756 A.2d at 1169).

55 Id.

56 Althaus, 756 A.2d at 1168 (citing Gibbs v. Ernst, 647 A.2d 882, 890 (Pa. 1994)); see also Kline

v. Ball, 452 A.2d 727, 729 (Pa. Super. 1982) (“Tort liability must be founded upon some

blameworthy conduct, or lack of due care resulting in the violation of a duty owing to others.).

57 See Dittman v. UPMC, 196 A.3d 1036, 1044 (Pa. 2018).

58 Althaus, 756 A.2d at 1169–70; see also Kenner v. Kappa Alpha Psi Fraternity, Inc., 808 A.2d

178, 183 (Pa. Super. 2002) (imposing a duty on a national fraternity and its officers to “protect

initiates from harm”).

forth five factors for courts to consider when determining whether to formulate a

new duty of care.59 These factors include:

(1) The relationship between the parties;

(2) the social utility of the actor’s conduct;

(3) the nature of the risk imposed and foreseeability of the harm incurred;

(4) the consequences of imposing a duty upon the actor; and

(5) the overall public interest in the proposed solution.60

However, just because a court may create a new duty does not necessarily

mean that it should. In fact, the Supreme Court of Pennsylvania has cautioned

courts that they should not “enter into the creation of new common law duties

lightly,” given that “the adjudicatory process does not translate readily into the

field of broad-scale policymaking.”61 Its “default position” is thus that “unless the

justifications for and consequences of judicial policymaking are reasonably clear

with the balance of factors favorably predominating, [the Court] will not impose

new affirmative duties.”62

Here, the Althaus factors do not favorably predominate in favor of creating a

new duty. For the first factor (the relationship between the parties), Jean

59 Althaus, 756 A.2d at 1169 (“[T]he legal concept of duty of care is necessarily rooted in often

amorphous public policy considerations, which may include our perceptions of history, morals,

justice, and society.”).

60 Id.

61 Feleccia v. Lackawanna College, 215 A.3d 3, 13 (Pa. 2019) (internal quotation marks and

citation omitted).

62 Seebold v. Prison Health Servs., Inc., 57 A.3d 1232, 1245 (Pa. 2012).

acknowledges that none of the newly added allegations alter the analysis: the facts

“remain[] the same.”63 As the Court held previously, the relationship between

Bucknell and Jean—“that of an ordinary university-student relationship”64—does

not support imposing on Bucknell a higher duty of care than what is already

provided for by Pennsylvania common law.

The second and fifth factors (the social utility of the actor’s conduct and

public interest of imposing a duty, respectively) likewise remain unchanged. The

Court recognized that that these factors weigh in Jean’s favor, as “the social utility

of a [university’s] efforts to prevent hazing is not in dispute” and “there is a

substantial public interest in assuring that individuals will not die or suffer

substantial injury in an attempt to become members of a fraternity.”65 However, the

Court deemed these factors insufficient, on their own, to justify creating a new

standard of care.66 Jean offers no argument as to how the additional allegations

contained in the Amended Complaint enhance or otherwise alter the relative

weight the Court should afford these factors. Indeed, the Court finds that they do

not.

The third factor (foreseeability of harm) is arguably the factor most affected

by the additional allegations included in the Amended Complaint. Pointing to the

63 Doc. 79 at 10.

64 Jean, 2021 WL 1516467 at *4.

65 Id. at *5 n.69 (citing Kenner, 808 A.2d at 183).

66 Id. at *5.

other instances of hazing carried out by four separate groups on Bucknell’s campus

in the five-year period between 2015 and 2019, Jean argues that hazing is

foreseeable “when hazing is permitted to happen repeatedly on Bucknell’s

campus.”67 The veracity of this claim is suspect. The Amended Complaint does not

include any allegations to support its assertion that prior instances of hazing

conducted by other, unaffiliated students and organizations on Bucknell’s campus

“encourage[] Bucknell students to haze pledges and fellow students.”68 Rather,

Jean simply presents this causal connection as if it were a verified and well-

established fact. The Third Circuit has held that such “[c]onclusory allegations

without factual support are insufficient.”69

Moreover, the Court noted that although the Superior Court of Pennsylvania

in Kenner v. Kappa Alpha Psi Fraternity, Inc. considered foreseeability “at a high

level of generality,” it is appropriate to also evaluate foreseeability “as it would

apply to specific occurrences.”70 The Court must therefore evaluate not only the

foreseeability that hazing would occur on a defendant university’s campus at some

point in time, but also the foreseeability of the specific hazing event at issue. Here,

the newly added allegations do not indicate that Bucknell knew or should have

67 Doc. 79 at 9.

68 Doc. 59 ¶ 51.

69 Chetty Holdings Inc. v. NorthMarq Capital, LLC, 556 Fed. Appx. 118, 121 (3d Cir. 2014).

70 Jean, 2021 WL 1516467 at *5 n.68 (citing Kenner, 808 A.2d at 183).

otherwise foreseen that hazing would occur at the September 10, 2020 initiation.

As such, this factor remains a wash.

For the fourth factor (the consequences of imposing a duty upon the actor),

the Court previously held that imposing a higher duty of care on Bucknell would

create a massive burden on the University’s resources and capabilities, explaining

that “[b]eyond shuttering every fraternity suspected of or disciplined for hazing, or

requiring direct supervision of any such fraternity, it is not clear how Bucknell

would be able to meet this duty.”71 None of the additional facts pleaded in the

Amended Complaint alter this conclusion. If anything, the newly added allegations

establish that the burden on Bucknell would be far greater than the Court originally

contemplated. Given Jean’s allegations about hazing conducted by non-Greek

organizations—specifically, men’s and women’s school-sponsored sports teams

and an acapella group—imposing on Bucknell a heightened duty “owed to students

related to hazing”72 would effectively require the absolute prohibition of all student

groups or, at the very least, student group gatherings without direct university

supervision.73

71 Id. at *5.

72 Doc. 79 at 11.

73 The Court noted previously that “imposing a reduced and more ambiguous standard of care

(i.e., merely requiring Bucknell to take steps to prevent hazing) significantly reduces the

likelihood that Bucknell will be found to have breached its duty.” Jean, 2021 WL 1516467 at

5) (emphasis in original). This remains true.

Jean does not dispute the immense burden that its proposed duty would

impose on Bucknell but argues instead that this burden is warranted given the risk

of harm that hazing presents.74 The Court finds this position unavailing. Although

the harm caused by hazing is serious, the nature of the relationship at issue and the

expected consequences ultimately compel this Court to find that the creation of a

new duty encompassing Bucknell’s conduct in this case is not justified.

Because the Court concludes that Bucknell did not have a duty to Jean under

the facts alleged in the Amended Complaint, Jean’s negligence claim against

Bucknell (Count IV) is dismissed.

B. Hazing and Negligence Per Se

Bucknell also argues that Jean’s “hazing” and negligence per se claims

(Counts I and VI, respectively) should likewise be dismissed because the

additional facts alleged in the Amended Complaint fail to establish that Bucknell

violated Pennsylvania’s anti-hazing law, the statutory predicate for both claims.

Jean asserts otherwise, but again, the Court finds his arguments unpersuasive.

Section 2804 of Pennsylvania’s anti-hazing statute imposes liability on any

organization that “intentionally, knowingly, or recklessly promotes or facilitates”

hazing, as defined in Sections 2802 and 2804 of the law.75 In its prior dismissal of

74 Doc. 79 at 9–10.

75 18 Pa. C.S. § 2804. In relevant part, Section 2802 holds that “[a] person commits the offense

of hazing if the person intentionally, knowingly or recklessly, for the purpose of initiating,

admitting or affiliating a minor or student into or with an organization, or for the purpose of

Jean’s hazing and negligence per se claims based on the facts alleged in the

original Complaint, the Court held that “Bucknell’s asserted conduct did not

facilitate or promote any incident of hazing,” and, alternatively, that “the

Complaint has not alleged facts showing [the purported facilitation] was

intentional, knowing, or reckless.”76 The Court explained that Jean did not allege

that “Bucknell knew about the September 10, 2020 initiation, that Bucknell

approved it, or in any way promoted it,” or that he “report[ed] any hazing by the

Iota Chapter to Bucknell.”77 These allegations are likewise nowhere to be found in

the Amended Complaint. Instead, Jean added allegations of past incidents of

hazing on Bucknell’s campus by separate organizations, Bucknell’s failure to

distribute a fraternity recruitment handbook, and the culture of underage drinking

at Bucknell. None of these facts show that Bucknell had notice that Jean would be

hazed by members of the Iota Chapter at the initiation event.

Unable to present new facts sufficient to remedy the deficiencies in the

original Complaint, Jean attempts to relitigate the question of how to interpret and

apply Section 2804. Specifically, Jean cites the Merriam-Webster Dictionary

definition of “facilitate”—that is, “to make easier”—and asks the Court to interpret

continuing or enhancing a minor or student’s membership or status in an organization, causes,

coerces or forces a minor student to,” among other things, violate state or federal law, consume

alcohol that puts the minor or student at risk, and endure mental, sexual, or physical brutality.

Id. § 2802(a). Section 2803 defines aggravated hazing. 18 Pa. C.S. § 2803(a).

76 Jean, 2021 WL 1516467 at *8.

77 Id.

Section 2804 as imposing criminal liability on organizations, such as Bucknell, if

they merely make it easier for others to commit hazing.78 Conversely, Bucknell

asks the Court to adopt a more restrictive definition of “facilitate,” requiring “the

alleged perpetrator to actively contribute to the commission of the crime, rather

than failing to take sufficient action to prevent it.”79

To date, no court has specifically addressed the question of how to define

“facilitate” for purposes of Section 2804 of the Pennsylvania anti-hazing statute.

Federal and Pennsylvania state courts have, in certain contexts, endorsed the broad,

plain meaning definition that Jean advocates for here.80 However, Bucknell

correctly asserts that in Pennsylvania criminal statutes, the precise terminology

included in Section 2804—that is, “promotes or facilitates”—generally appears in

the context of criminal accomplice or conspirator liability,81 both of which require

78 Doc. 79 at 13 (“It does not mean that Bucknell had to actually commit or conspire to commit

hazing, but merely that it made it easier to do so.”).

79 Doc. 63 at 18.

80 See, e.g., United States v. Coleman, 627 F.3d 205, 212 (6th Cir. 2010) (defining “facilitate” as

“to make easier or less difficult” for purposes of U.S.S.G. § 2K2.1(b)(6)); Commonwealth v.

Moss, 852 A.2d 374, 382 (Pa. Super. 2004) (holding that for purposes of 18 Pa. C.S.A. § 7512,

“[f]acilitation has been defined as the use of a communication facility that makes easier the

commission of the underlying felony”) (internal quotation marks omitted).

81 See 18 Pa. C.S. § 306(c) (“A person is an accomplice of another person in the commission of

an offense if: (1) with the intent of promoting or facilitating the commission of the offense,

he: (i) solicits such other person to commit it; or (ii) aids or agrees to aid such other person in

planning or committing it . . . .”) (emphasis added); 18 Pa. C.S. § 903(a) (“A person is guilty

of conspiracy with another person or persons to commit a crime if with the intent of promoting

or facilitating its commission he: (1) agrees with such other person or persons that they or one

or more of them will engage in conduct which constitutes such crime or an attempt to

solicitation to commit such crime; or (2) agrees to aid such other person or persons in the

planning or commission of such crime or of an attempt or solicitation to commit such crime.”)

(emphasis added).

some level of affirmative action by the defendant.82 This interpretation is consistent

with the United States Supreme Court’s holding in Abuelhawa v. United States, in

which the Supreme Court explicitly declined to apply the plain meaning of

“facilitate” (i.e., to make easier or less difficult) in the context of Section 843(b) of

the Controlled Substance Act.83

There, the Supreme Court considered whether to sustain a defendant’s

conviction under Section 843(b)84 for making a misdemeanor drug purchase

because his phone calls to the dealer can be said to “facilitate” the felony of drug

distribution. The Supreme Court held that the Fourth Circuit erred in affirming the

defendant’s conviction based on the “common meaning” of “facilitate” because

doing so produced an outcome at odds with the “common usage” of the term and

“skew[ed] the congressional calibration” of the penalties imposed.85

Here, as in Abuelhawa, the consequences of adopting an overly broad

definition of “facilitate” militate against this approach. As Bucknell argues, finding

82 See Commonwealth v. Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005) (holding that for

accomplice liability, “there must be evidence that [the defendant] actively participated in the

crime”); Commonwealth v. Davenport, 452 A.2d 1058, 1061 (Pa. Super. 1982) (holding that

for conspirator liability, “one’s knowledge that another proposes unlawful action will not

establish a conspiracy, absent proof that the accused became an active partner in the criminal

enterprise with knowledge of the agreement”) (emphasis is the original).

83 556 U.S. 816, 819–22 (2009); see also Woodhull Freedom Foundation v. United States, 948

F.3d 363, 375 (D.C. Cir. 2020) (Kastas, J., concurring) (citing Abuelhawa for the proposition

that “in criminal statutes, ‘facilitate’ need not mean ‘make easier’”).

84 18 U.S.C. § 843(b) (“It shall be unlawful for any person knowingly or intentionally to use any

communication facility in committing or causing or facilitating the commission of any acts or

acts constituting a felony . . . .”).

85 Id. at 821–22.

that Section 2804 imposes criminal liability on any institution that “makes it

easier” for hazing to occur would criminalize basic day-to-day operations of a

university.86 It is difficult to conceive of any act or omission by a university

bearing on its student organizations that could not be characterized as “making it

easier” for hazing to occur. Allowing student organizations to gather outside the

presence of a university employee would arguably “make it easier” for hazing to

occur. Indeed, merely allowing student organizations to exist would “make it

easier” for hazing to occur. Endorsing this interpretation would thus institute a

dramatic shift in public policy, effectively imposing on colleges and universities an

in loco parentis duty—something the Pennsylvania Supreme Court has explicitly

rejected for more than thirty years.87

That said, the Court is not prepared at this juncture to hold that “facilitate”

for purposes of Section 2804 necessarily requires “some level of affirmative action

by the defendant.”88 As this Court intimated in Humphries v. Pennsylvania State

University, an organization’s failure to respond to complaints of hazing, if such

inaction directly brings about additional incidents of the hazing complained of,

may support a claim under Section 2804.89 In that case, the Court declined to

86 Doc. 80 at 8.

87 See Alumni Ass’n v. Sullivan, 572 A.2d 1209, 1213 (Pa. 1990) (“Clearly, in modern times, in

would be inappropriate to impose an in loco parentis duty upon universities.”).

88 Doc. 63 at 19.

89 492 F. Supp. 3d 393, 405 (M.D. Pa. 2020).

dismiss a negligence per se claim based on Section 2804 where the plaintiff alleged

that the university ignored the plaintiff’s reports of hazing in a way that resulted in

future hazing.90

As explained above, Jean does not allege facts sufficient to establish that

Bucknell either took any actions or failed to act in response to specific reports of

hazing that directly brought about the hazing Jean endured. The allegations of

other hazing incidents on Bucknell’s campus do not suffice: the supposed

connection between prior events involving separate, unaffiliated organizations and

the events that occurred at the September 10, 2020 Iota Chapter initiation event is

far too attenuated. Likewise, the facts alleged in the Amended Complaint do not

establish any causal relationship between Bucknell’s failure to publish a fraternity

recruitment guide and the hazing Jean experienced. Finally, this Court already

considered Bucknell’s alleged failure “to adequately address student alcohol

consumption on campus” and concluded that “this alone did not facilitate or

promote Jean’s hazing.”91

Moreover, even if the Court were to find that Bucknell facilitated the hazing

incident, the Amended Complaint does not contain allegations showing that any

90 Id. at 400–01, 405.

91 Jean, 2021 WL 1516467 at *8.

such facilitation was “reckless.”92 Under Pennsylvania law, “[a] person acts

recklessly with respect to a material element of an offense when he consciously

disregards a substantial and unjustifiable risk that the material element exists or

will result from his conduct,” and his failure to perceive the risk was “a gross

deviation from the standard of care that a reasonable person would observe in the

actor’s situation.”93 Therefore, in assessing whether a defendant’s conduct qualifies

as reckless, the Court must first determine whether the risk “was foreseeable to a

reasonable person” in the defendant’s situation.94

As noted, the facts alleged in the Amended Complaint do not establish that

Bucknell was aware or should have been aware that hazing would occur at the

September 10, 2020 Iota Chapter initiation event. At most, the alleged prior

instances of hazing by other organizations on Bucknell’s campus provide general

notice that hazing could occur at some student organization event. That is

insufficient. Absent any indication that Bucknell at the very least should have been

aware that hazing would occur at this initiation event—thus, that this particular

incident of hazing would have been foreseeable to a reasonable institution in

Bucknell’s position—the Court cannot conclude that Bucknell consciously

92 Jean does not argue, and the facts alleged do not show, that Bucknell acted or failed to act

either with the intent of bringing about Jean’s hazing or with the knowledge that hazing would

occur at the Iota Chapter initiation event. See Doc. 79 at 13.

93 18 Pa. C.S.A. § 302(b)(3).

94 Commonwealth v. Ruby, 838 A.2d 786, 789–91 (Pa. Super. 2003) abrogated on other grounds

by Commonwealth v. Dantzler, 135 A.3d 1109 (Pa. Super. 2016).

disregarded a substantial and unjustifiable risk that Jean would be subjected to

hazing.95

For these reasons, the Court finds that the well-pleaded allegations in the

Amended Complaint are insufficient to sustain a claim against Bucknell for

violation of Section 2804. Thus, Bucknell’s motion to dismiss Counts I and VI is

also granted.

IV. CONCLUSION

The additional facts alleged in the Amended Complaint do not remedy the

deficiencies the Court identified when it initially dismissed Jean’s claims against

Bucknell. As such, Jean has again failed to establish that Bucknell breached any

cognizable duty of care or that Bucknell violated Pennsylvania’s anti-hazing

statute. Bucknell’s motion to dismiss pursuant to Rule 12(b)(6) is granted, and

Jean’s claims against Bucknell are now dismissed with prejudice.

95 Compare Commonwealth v. McCloskey, 835 A.2d 801, 806–07 (Pa. Super. 2003) (holding that

“a parent who knows alcohol is being served to minors in her home”—because she “chatted

with teens during the party [at her house] while they were drinking alcohol”—“is acting

recklessly when she allows the conduct to continue”) (emphasis in original) with Ruby, 838

A.2d at 789–90 (holding that mother did not act recklessly when striking her infant son—thus,

did not have the requisite mens rea to be guilty of involuntary manslaughter for son’s death—

where mother struck son lightly on the chest and son died of rare heart condition, because it

was not foreseeable to a reasonable person that mother’s conduct would cause serious bodily

injury or death).

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge