Reed v. Mount Carmel Area School District

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL REED, No. 4:23-CV-00890

Plaintiff, (Chief Judge Brann)

v.

MOUNT CARMEL AREA SCHOOL

DISTRICT, et al.,

Defendants.

MEMORANDUM OPINION

OCTOBER 3, 2023

This case involves a disturbing yet all-too-common pattern of abuse in schools

today: hazing. After suffering a violent sexual assault as part of his high school

football team’s hazing practices, Plaintiff seeks to recover compensation for his

emotional distress through Title IX, and to sue his school district for its negligence

under state tort law. Unfortunately, neither of these remedies are this Court’s to give,

and neither is permitted under Federal or State law.

I. BACKGROUND

In May 2023, Michael Reed filed a 15-count complaint against various

Defendants.1 Six of those counts are directed toward the moving Defendant, Mount

Carmel Area School District (“Mount Carmel”). Under Count I, Reed seeks

compensatory and punitive damages, including emotional distress damages, under

Title IX’s private right of action.2 The remaining five counts seek damages through

various flavors of state tort law.3 This Court has subject matter jurisdiction over

Reed’s Title IX claims pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental

jurisdiction over Reed’s state claims pursuant to 28 U.S.C. § 1367.

In June 2023, Mount Carmel filed a motion for partial dismissal of Reed’s

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a

claim, and a Brief in Support of its motion.4 Reed filed a Brief in Opposition in July

2023,5 and Mount Carmel filed a Reply in August 2023.6 The motion is now ripe for

disposition; for the reasons that follow, it is granted and these claims are dismissed

with prejudice.

II. DISCUSSION

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), courts dismiss a complaint,

in whole or in part, if the plaintiff fails to “state a claim upon which relief can be

2 Id. ¶

3 Count II alleges negligence; Count IV alleges negligent failure to rescue; Count V alleges

failure to warn; Count VI alleges negligence per se; and Count VII alleges negligent infliction

of emotional distress. Id. at 20, 26, 27, 28, 29.

4 Defendant Mount Carmel Area School District’s Motion for Partial Dismissal of Complaint,

Doc. 14; Defendant Mount Carmel Area School District’s Brief in Support of Motion for

Partial Dismissal of Complaint, Doc. 15.

5 Plaintiff Michael Reed’s Response in Opposition to Defendant Mount Carmel Area School

District’s Motion for Partial Dismissal of Plaintiff’s Complaint, Doc. 16-1.

6 Defendant Mount Carmel Area School District’s Reply Brief in Further Support of Motion for

Partial Dismissal of Complaint, Doc. 18.

granted.” Following the landmark decisions of Bell Atlantic Corp. v. Twombly7 and

Ashcroft v. Iqbal,8 “[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.’”9 The United States Court of Appeals for the Third Circuit has instructed

that “[u]nder the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps”: (1) “take note of the

elements the plaintiff must plead to state a claim”; (2) “identify allegations that,

because they are no more than conclusions, are not entitled to the assumption of

truth”; and (3) “assume the[] veracity” of all “well-pleaded factual allegations” and

then “determine whether they plausibly give rise to an entitlement to relief.”10

B. Facts Alleged in the Complaint

This motion concerns what remedies are available against a public school

district due to a hazing incident which escalated to a violent sexual assault. The facts

alleged in the complaint, which this Court must accept as true for the purposes of

this motion, are as follows.

In the fall of 2020, Plaintiff Michael Reed was a seventeen-year-old student

at Mount Carmel Area High School and a member of the Mount Carmel football

7 550 U.S. 544 (2007).

8 556 U.S. 662 (2009).

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

10 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations

and citations omitted).

team.11 During the football season, members of the Mount Carmel Area High School

football team and their parents would gather at a player’s house to celebrate the

previous week’s football game by watching a recording on television.12 During the

2020 football season, several gatherings were hosted by team captain Reed

Witkoski.13 Until his senior year at Mount Carmel, Reed had never attended one of

these gatherings, as only starters on the team were invited.14 When Reed became a

starter for Mount Carmel’s football team that year,15 Witkoski invited him to one

such gathering in September 2020.16

On that day, Reed arrived at the Witkoski residence at approximately 6:30

P.M. and sat down with other players to watch the game at 7:00 P.M.17

Approximately twenty team members were in attendance.18 At halftime, while

Witkoski’s parents were inside the home, Witkoski instructed the team members to

move to his backyard.19 Reed saw another player carrying a pack of sparklers.20 He

then saw Witkoski, along with team co-captains Damon Dowkus and Julien Stellar,

holding punks, which are smoldering sticks used to light fireworks.21

11 Doc. 1 ¶¶29, 30.

12 Id. ¶31.

13 Id. ¶38.

14 Id. ¶31.

15 Id. ¶32.

16 Id. ¶32.

17 Id. ¶37.

18 Id.

19 Id. ¶38.

20 Id.

21 Id.

Reed, along with other new starters on the team, was then forced to pull down

his pants.22 Other team members held him down.23 While Reed was physically

restrained, the three team captains, along with team member Tyler Owens, used the

punks and sparklers to burn Reed’s buttocks eight to ten times.24 While Reed was

burned, “other members of the team watched and laughed.”25 After the assault

Witkoski told the players: “What happens here, stays here. Don’t say anything.”26

Unbeknownst to Reed, the Mount Carmel football team had engaged in hazing

and bulling traditions for many years, which were meant to “initiate” them as starters

to the team.27 Just one week before Reed’s incident, approximately five to ten Mount

Carmel football players were hazed in the same manner at the Witkoski residence.28

Additionally, one student experienced a “similar hazing-type assault” in the school

locker room the year prior to Reed’s assault, after attempting to report similar hazing

to the school.29 These practices were allegedly known to Mount Carmel, which failed

to act upon reports of abuse.30 Reed and his mother described the incident and

provided pictures of Reed’s burns to Mount Carmel, but feared that Reed would be

22 Id. ¶39.

23 Id. ¶39.

24 Id. ¶¶39-40.

25 Id. ¶40.

26 Id. ¶44; Francis Scarcella, UPDATE: Mt. Carmel’s Football Coach Reports Alleged Hazing to

ChildLine, THE DAILY ITEM, Dec. 12, 2022, Doc.1-2 at 4.

27 Id. ¶23.

28 Id. ¶48.

29 Id. ¶¶25, 53.

30 Id. ¶62.

retaliated against if he spoke out.31 Mount Carmel stated that nothing could be done

absent a written statement; the school took no further action.32

The Office of the Attorney General of Pennsylvania then investigated the

hazing incident, concluding that the practice of burning players’ buttocks had been

going on for many years before Reed’s assault.33 Several players were charged with

various crimes, including Simple Assault, Intimidation of Witness or Victims,

Criminal Conspiracy, and Hazing; Several students including Witkoski, Dowkus,

Stellar, and Owens were criminally charged, and each pled nolo contendere or guilty

to one of various charges.34 Mount Carmel canceled the football season.35

Reed now brings civil charges against several defendants, including Mount

Carmel, Witkoski and his parents, Dowkus, Stellar, Owens, and other unknown

defendants.36 Count I seeks compensatory, punitive, and emotional distress damages

from Mount Carmel under Title IX.37 Counts II, IV, V, VI, and VII are state law

negligence claims against Mount Carmel.38

31 Id. ¶¶53-55, 57.

32 Id. ¶¶57-58, 60.

33 Id. ¶¶ 59, 61

34 Id. ¶63-65; Mount Carmel Football Players Waive Hearing, Possibly Headed to Trial in

Hazing Case, WNEP (Jan. 19, 2023), Doc. 1-3.

35 Id. ¶60.

36 Id. at 1.

37 Id. at 16-17, 19-20.

38 Count II alleges negligence; Count IV alleges negligent failure to rescue; Count V alleges

failure to warn; Count VI alleges negligence per se; and Count VII alleges negligent infliction

of emotional distress. Id. at 20, 26, 27, 28, 29.

C. Reed’s Punitive and Emotional Distress Damages

The Department of Education allocates billions of dollars of funding to

schools around the country every year. Under Title IX of the Education Amendments

of 1972, any school receiving those funds agrees not to discriminate against any

person on the basis of sex.39 This prohibited sex discrimination includes, under

certain circumstances, a school’s deliberate indifference toward student-on-student

sexual harassment or assault.40 Following the Supreme Court of the United States’s

decision in Cannon v. University of Chicago, Title IX provides that victims of

prohibited discrimination have an implied private right of action against funding

recipients for damages.41

Cannon was a continuation of the Supreme Court’s expansive approach to

purposively divining implied rights by “accord[ing] dispositive weight to context

shorn of text”42 to “make effective the Congressional purpose[s]” of statutes.43

Subsequent decisions curbed this judicial overreach as an excessive intrusion into

the legislative domain.44 But after the Cannon decision, Congress impliedly adopted

39 20 U.S.C. § 1681.

40 Davis v. Monroe Cnty Bd. of Educ., 526 U.S. 629, 643 (1999).

41 441 U.S. 677, 688-89 (1979).

42 Alexander v. Sandoval, 532 U.S. 275, 287-288 (2001) (Scalia, J.) (explaining this approach).

43 See J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964) (explaining that “it is the duty of the

courts to be alert to provide such remedies as are necessary to make effective the congressional

purpose”); Cort v. Ash, 422 U.S. 66, 78 (1975) (providing a cabined four-factor implied rights

test).

44 Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979) (remedies available are those “that

Congress enacted into law”); Sandoval, 532 U.S. at 287 (“Raising up causes of action where a

Cannon’s holding that a Title IX private right of action exists by referencing it in

other legislation, without codifying that right of action directly.45 The scope of

available remedies under Title IX therefore remains uncertain.

Consequently, Mount Carmel does not seek dismissal of Reed’s Title IX

claims in their entirety, as it concedes that at least compensatory damages are

available under Title IX’s private right of action.46 Instead, Mount Carmel limits its

Title IX challenge to Reed’s claims for punitive and emotional distress damages.47

Reed first argues that, even if such remedies are unavailable, a motion to dismiss

would be the incorrect procedural vehicle to make this finding.48 The Court rejects

this argument.49 Alternatively, Reed does not contest the availability of punitive

statute has not created them may be a proper function for common-law courts, but not for

federal tribunals”); Wisniewski v. Rodale, 510 F.3d 294, 301 (3d Cir. 2007).

45 Franklin v. Gwinnett Cnty Pub. Sch., 503 U.S. 60, 78 (1991) (Scalia, J., Concurring).

46 Doc. 18 at 2.

47 Id.

48 Doc. 16-1 at 8-9.

49 The cases cited by Plaintiff rightly hold that this Court could not dismiss Plaintiff’s entire Title

IX claim merely because his pleadings requested an unavailable remedy alongside available

ones. Richard Roe, W.M. v. Devereux Found., No. 21-2655, 2023 U.S. Dist. LEXIS 5658, at

*29-30 (E.D. Pa. Jan. 12, 2023). But this does not mean that the Court cannot dismiss a cause

of action predicated on emotional distress, and yet leave standing that same cause of action

with respect to other harms—which is precisely what Defendants request. Doc. 18 at 2; A.T. v.

Oley Valley Sch. Dist., No. 17-4983, 2023 U.S. Dist. LEXIS 16619, at *8 (E.D. Pa. Feb. 1,

2023) (dismissing Title IX emotional distress claim but leaving underlying Title IX claim

intact).

damages, conceding that the Supreme Court has foreclosed this remedy under Title

IX.50 Accordingly, these claims are dismissed.

However, the parties contest whether emotional distress damages are

available under Title IX after the Supreme Court’s recent decision in Cummings v.

Premier Rehab Keller, P.L.L.C.51 The Court is persuaded that Cummings bars

emotional distress damages under Title IX. As such, these claims are dismissed.

In Cummings, the Supreme Court held that emotional distress damages are

unavailable under the Rehabilitation Act of 1973 and the Patient Protection and

Affordable Healthcare Act.52 However, Chief Justice Roberts’ discussion was

framed not around the statutes at issue, but rather more broadly around the “four

statutes prohibiting recipients of federal financial assistance from discriminating

based on certain protected grounds,” Title IX among them.53 The Supreme Court

followed the practice of analyzing these funding statutes together because they all

“operate based on consent: ‘in return for federal funds, the [recipients] agree to

comply with federally imposed conditions.’”54

While funding recipients agreed to be liable under these statutes’ implied

causes of action, it was not foreseeable that this would engender liability for

50 Doc. 16-1 at 6-7; Banes v. Gorman, 536 U.S. 181, 189-90 (2002).

51 142 S. Ct. 1562 (2022).

52 Id. at 1579.

53 Id. at 1549, 1579.

54 Id. at 1570 (quoting Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981)).

emotional distress damages, which are not generally available as contract

remedies.55 Therefore, under the Rehabilitation Act—just as under Title IX—

emotional distress damages were not foreseen as stipulations upon Federal funding

by funding recipients, and accordingly, they are unavailable.

Reed may be correct that the Supreme Court has not technically ruled upon

the availability of emotional distress damages under Title IX.56 But he offers no

persuasive reason not to follow the Cummings dicta. Because Chief Justice Roberts

analyzed these federal funding statutes in tandem, subsequent courts have

overwhelmingly applied these dicta to Title XI, including all post-Cummings District

Court decisions within this Circuit thus far.57

Plaintiff’s citation to the Western District of Pennsylvania’s dated decision in

Dawn L. v. Greater Johnstown School District, which permitted emotional distress

damages under Title IX, is unavailing.58 The Dawn L. decision reasoned using a

simple syllogism premised on the funding statute contract analogy: emotional

distress damages are available for contractual breach if emotional distress is a

foreseeable consequence of breach, and emotional distress is a foreseeable

55 Id. at 1571-72.

56 Doc. 16-1 at 7.

57 Richard Roe, W.M. v. Devereux Found., No. 21-2655, 2023 U.S. Dist. LEXIS 5658, at *30

(E.D. Pa. Jan. 12, 2023); Doe v. Moravian Coll., Civil No. 5:20-cv-00377-JMG, 2023 U.S.

Dist. LEXIS 4027, at *27 (E.D. Pa. Jan. 20, 2023); A.T. v. Oley Valley Sch. Dist., No. 17-4983,

2023 U.S. Dist. LEXIS 16619, at *6-7 (E.D. Pa. Feb. 1, 2023) (collecting cases). See also Doe

v. City of Pawtucket, 633 F.Supp. 3d 583, 589 (D. R.I. 2022).

58 586 F.Supp. 2d 332, 383-84 (W.D. Pa. 2008).

consequence of civil rights violations, so emotional distress damages are a

foreseeable remedy under the Title IX funding statute.59 This was the precise

rationale rejected by the Supreme Court in Cummings with respect to the

Rehabilitation Act,60 and Reed has identified no relevant distinction between that

statute and Title IX. Nor is this Court persuaded by the minority of District Courts

that have refused to apply Cummings’ rationale to Title IX, all of which declined to

provide any reasoning.61

This Court is also persuaded by Justice Kavanaugh’s Cummings concurrence,

which does not rely on the majority’s contract analogy, but rather the Supreme

Court’s sharp disavowal of its implied rights jurisprudence.62 As discussed, Title

IX’s private cause of action descends from the “ancien regime” of implied rights

jurisprudence,63 which purposively implied private causes of action without textual

evidence. “Quite obviously, the search for what was Congress’ remedial intent as to

a right whose very existence Congress did not expressly acknowledge is unlikely to

succeed.”64 Therefore, rather than perpetuate the legal fiction that such causes of

59 Id.

60 Cummings v. Premier Rehab Keller, P.L.L.C., 142 S.Ct. 162, 1572-73 (Roberts, C.J.), 1577

(Breyer, J., Dissenting).

61 Coleman v. Cedar Hill Indep. Sch. Dist., Civil Action No. 3:21-CV-2080-D, 2022 U.S.Dist.

LEXIS 84015, at *10 n.2 (N.D. Tx. May 10, 2022); Doe v. Purdue Univ., No. 4-18-CV-98-

JEM, 2022 U.S. Dist. LEXIS 123601, at *10-11 (N.D. Ind. July 20, 2022) (Martin, M.J.)

62 Id. at 1576-77 (Kavanaugh, J., Concurring).

63 Id.; Alexander v. Sandoval, 532 U.S. 275, 287 (2001).

64 Franklin v. Gwinnett Cnty Pub. Sch., 503 U.S. 60, 76 (1991) (Scalia, J., Concurring). As Justice

Scalia recognized, subsequent Congresses ratified Title IX’s private cause of action through

action were actually contemplated by Congress when passing Title IX, or well-

understood by funding recipients at that time, it is better to cabin those implied

causes of action to their currently understood scope, and “apprise the lawmaking

branch of the Federal Government that the ball, so to speak, may well now be in its

court.”65

There are valid reasons for emotional distress damages to be available to the

victims of discrimination and sexual harassment—especially here. But it is Congress

that attaches strings to the Federal purse. It is therefore Congress’s task to attach

more strings to those funds, should it choose to do so.

D. Political Subdivision Tort Claims Act

Reed sues Mount Carmel for several claims under Pennsylvania state tort law:

negligence, negligent failure to rescue, failure to warn, negligence per se, and

negligent infliction of emotional distress.66 Mount Carmel contends that these claims

are barred by sovereign immunity,67 while Reed contends that they fall under the

Political Subdivision Tort Claims Act’s (“PSTCA”) waiver of sovereign immunity

for “sexual abuse” caused by a local agency’s negligence.68 While the parties raise

an issue of first impression, the Court holds that the PSTCA’s sexual abuse exception

amending language. This adopted the then-existing private cause of action for compensatory

damages into the statutory text, but emotional distress remedies had not yet been found.

65 Cannon v. Univ. of Chicago, 441 U.S. 677, 718 (1979) (Rehnquist, J., concurring).

66 Doc. 1 at 20, 26, 27, 28, 29.

67 Doc. 15 at 5-6.

68 Doc. 16-1 at 9-10; 42 Pa.C.S. § 8542(b)(9) (LEXIS 2022).

to sovereign immunity is inapplicable here. Reed’s state tort law claims are therefore

dismissed with prejudice.

The Political Subdivision Tort Claims Act (“PSTCA”) codifies the

Commonwealth’s sovereign immunity, providing that “no local agency shall be

liable for any damages on account of any injury to a person or property by any act

of the local agency or an employee thereof or any other person.”69 One of the

statute’s narrow waivers of sovereign immunity applies where a school’s actions or

omissions result in “sexual abuse.”70 “Sexual abuse” in turn cross-references various

criminal statutes, including “institutional sexual assault” under 18 Pa.C.S.

§ 3124.2(a.2), which the parties focus on in this matter.71 For the PSTCA’s exception

to apply to Reed’s case through its cross reference to institutional sexual assault,

Reed must show that his abusers had “direct contact with a student at a school”72 and

69 42 Pa.C.S. § 8541 (LEXIS 2022).

70 42 Pa.C.S. § 8542(a) states that the exceptions in § 8542(b) permit liability against political

subdivisions. 42 Pa.C.S. § 8542(b) sets out nine exceptions to PSTCA immunity, one of which

is the “sexual abuse” exception under § 8542(b)(9). In turn, that section cross-references the

crimes enumerated under 18 Pa.C.S. § 5551(7), which applies to the following crimes “if the

victim was under 18 years of age at the time of the offense:” trafficking, 18 Pa.C.S. § 2011(b);

involuntary servitude as it relates to sexual servitude, 18 Pa.C.S. § 3012; rape, 18 Pa.C.S. §

3121; statutory sexual assault, 18 Pa.C.S. § 3122.1; involuntary deviate sexual intercourse, 18

Pa.C.S. § 3123; sexual assault, 18 Pa.C.S. §3124.1; institutional sexual assault, 18 Pa.C.S. §

3124.2; aggravated indecent assault, 18 Pa.C.S. § 3125; and incest, 18 Pa.C.S. § 4302.

71 None of the other crimes could apply here because institutional sexual assault is the only

offense which criminalizes indecent contact. See Doe v. Williamsport Area Sch. Dist., No.

4:22-CV-01387, 2023 U.S. Dist. LEXIS 73835, at *30 (M.D. Pa. Apr. 27, 2023).

72 Defendant also contends that § 3124.2(a.2) requires the assault to occur “at a school,” and

therefore it is inapplicable because this assault occurred outside of the school. The Court is

unpersuaded by this argument, and finds that when placed in context, the phrase “at a school”

merely modifies the kind of “direct contact” an actor must have with a student to fall under the

statute. “A person who is a volunteer or an employee of a school or any other person who has

engaged in “indecent contact” with him. The Court resolves this case on the former

inquiry.73

The issue before the Court is whether students in extracurricular leadership

positions, such as football captains, can perpetrate institutional sexual assault under

§ 3124.2(a.2). Based on its analysis of the statute’s text and structure, the Court

concludes that they cannot.

The relevant part of § 3124.2(a.2) describes the class of actors to whom the

statute applies: “a person who is a volunteer or an employee of a school or any other

person who has direct contact with a student.”74 The phrase “direct contact” is further

defined as “care, supervision, guidance or control.”75 Because no case law appears

to further define “direct contact,” the parties spar over whether a football captain

exercises the kind of “care, supervision, guidance or control” which would put him

in “direct contact” with students.76 Although it appears at first glance that student

leaders come into direct contact with students at a school by wielding control over

their peers, the surrounding context of the statute dictates otherwise. Ultimately, this

case hinges not on the phrase “direct contract,” but on “any other person.”

direct contact with a student at a school” can be criminally liable under the statute. 18 Pa.C.S.

§ 3124(a.2)(1) (LEXIS 2022). In other words, someone in direct contact with students at a

school may commit institutional sexual assault through off-campus indecent contact.

73 However, the Court notes its skepticism of Defendant’s argument that “indecent contact” with

a student cannot include so-called “indirect” contact with an object such as the sparklers and

punks here.

74 18 Pa.C.S. § 3124(a.2)(1) (LEXIS 2022).

75 18 Pa.C.S. § 3124(a.2)(2)(i) (LEXIS 2022).

76 Doc. 16-1 at 11, 13; Doc. 18 at 5.

“Slicing a statute into phrases while ignoring their contexts” is a “formula for

disaster”77 because “[t]he full body of a text contains implications that can alter the

literal meaning of individual terms.”78 Rather than asking whether the Mount Carmel

football captains had “direct contact” with Reed, the more precise inquiry is whether

the captains qualify as “any other person who has direct contact [i.e., care,

supervision, guidance or control] with a student at a school.”79 The statute lists three

classes of actors who, because they have direct contact with students at a school, can

be liable for institutional sexual assault: “a volunteer,” “an employee,” or “any other

person who has direct contact.”80 “Any other person” references the content of the

preceding two classes of actors who can commit institutional sexual assault,

volunteers and employees.

The statutory canon of construction ejusdem generis reasons that where a

general word follows the enumeration of two or more things, the general word

usually applies only to persons or things of the same general kind or class

specifically mentioned.81 “Any other person” must therefore refer to persons similar

77 Herrmann v. Cencom Cable Assocs., 978 F.2d 978, 982 (7th Cir. 1992) (Easterbrook, J.).

78 ANTONIN SCALIA & BRIAN A. GARNER, READING LAW 356. See also Yates v. United States,

574 U.S. 528, 536 (2015) (Ginsburg, J.).

79 18 Pa.C.S. § 3124(a.2)(1) (LEXIS 2022).

80 Id.

81 See Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612, 1625 (2018) (Gorsuch, J.) (“[W]here, as here, a

more general term follows more specific terms in a list, the general term is usually understood

to ‘embrace only objects similar in nature to those objects enumerated by the preceding specific

words’”) (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001)); ANTONIN

S &B A.G , R L 169 (2012).

to employees and volunteers. And, the definitions of “employee” and “volunteer”

explicitly state that they “do[] not include a student employed at the school” and

“do[] not include a school student.”82 Like employees and volunteers who have

direct contact with a student at a school, “any other person” who has direct contact

with a student at a school does not include the school students themselves.

Of course, textual canons like ejusdem generis are “only an instrumentality

for ascertaining the correct meaning of words when there is uncertainty.”83 But

§ 3124(a.2)’s statutory structure confirms the inference that the same exclusion

applies to volunteers, employees, and other persons alike. If “any other person”

could be a student, it is unclear why the drafters of § 3142(a.2) would explicitly

carve out student volunteers and employees. Indeed, any contrary reading would

mean that a student volunteer or employee who comes into direct contact with his

peers would be carved out under sections (a.2)(2)(ii)-(iii), yet would still fall under

“any other person” under (a.2)(1). This would render those strenuous exceptions

mere surplusage.84 The plain language of the statute, then, best supports a reading

that student leaders do not exert the same kind of “care, supervision, guidance or

82 18 Pa.C.S. § 3124(a.2)(2)(ii)(B), (iii) (LEXIS 2022).

83 United States. v. Powell, 423 U.S. 87 (1975) (quoting Gooch v. United States, 297 U.S. 124,

128 (1936)).

84 See United States v. Butler, 297 U.S. 1, 65 (1936) (“These words cannot be meaningless, else

they would not have been used.”); In re. J.W.B., 232 A.3d 689, 699 (Pa. 2000).

control” wielded by volunteers and employees, and are not considered “other

persons” under the statute.

It may appear to grate against statutory purpose to conclude that student

leaders do not exercise “care, supervision, guidance or control” such that they can

commit “institutional sexual assault” by abusing that authority. This definition, after

all, directly describes disturbing events like the abuse here. And when students abuse

their authority over peers to commit hazing that rises to the level of violent sexual

assault, it is not difficult to conclude that this is the kind of “sexual abuse” resulting

from a school’s “actions or omissions” that should fall under the PSTCA’s limited

waiver of sovereign immunity. Ultimately, however, § 3124.2 is a criminal statute,

and it is only incorporated by reference into the Political Subdivision Tort Claims

Act. Its original drafters did not have municipal liability in mind and may have had

their reasons, rightly or wrongly, for not exposing students to criminal liability. If

any ambiguity remains, the statute is to be “strictly construed in favor of the

[criminal] defendant.”85 If the PSTCA’s drafters wanted the “sexual abuse” waiver

to sweep more broadly than the criminal statutes they referenced, they did not say

so.

85 See 1 Pa.C.S. §1922(b)(1) (LEXIS 2022) (explaining that penal statutes must be strictly

construed); Commonwealth v. Cousins, 212 A.3d 34, 39 (Pa. 2019) (explaining that ambiguous

penal statutes are strictly construed in favor of the defendant under the rule of lenity).

This interpretation of § 3124.2(a.2) does not diminish the very real scourge of

hazing in schools. Students in leadership positions wield authority over their peers,

and like any person in a position of authority, a student leader can inflict severe harm

and lasting trauma if his or her authority goes unchecked. However, the drafters of

the PSTCA either wanted to ensure that its waiver of sovereign immunity was

narrow, or they made a glaring oversight. It is not for this Court to remedy “no matter

how desirable that might be as a policy matter, or how compatible with the statute.”86

Consequently, Reed’s negligence claims against Mount Carmel must be dismissed.

III. CONCLUSION

Defendant’s motion to dismiss pursuant to Rule 12(b)(6) is granted. Leave to

amend is denied. “Among the grounds that could justify a denial of leave to amend

are undue delay, bad faith, dilatory motive, prejudice, and futility.”87 A complaint

is “futile” if even, as amended, it would fail to state a claim upon which relief could

be granted.88 Reed’s punitive and emotional distress damages are barred under Title

IX, and the Political Subdivision Tort Claims Act bars any state law tort claim

against Mount Carmel because § 3124.2(a.2) does not apply to students. Although

there is a “liberal pleading philosophy of the federal rules,” a court amendment

should not be granted where another opportunity to plead a case would be futile.89

86 Alexander v. Sandoval, 532 U.S. 275, 287 (2001).

87 Id. (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).

88 Id.

89 See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008).

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge