Krajkovich v. Blakely Borough

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KATHLEEN KRAJKOVICH and : CIVIL ACTION NO. 3:22-CV-1912

ALEXIS RIVERA, :

: (Judge Conner)

Plaintiffs :

:

v. :

:

BLAKELY BOROUGH, PETER :

PETRUCCI, AVENTURA AT :

TERRACE VIEW, LLC, and DAWN :

FERGUSON, :

:

Defendants :

MEMORANDUM

Plaintiffs Kathleen Krajkovich and Alexis Rivera bring this lawsuit under 42

U.S.C. § 1983 against their former employer, nursing home operator Aventura at

Terrace View, LLC (“Aventura”); Aventura’s Director of Nursing, Dawn Ferguson;

Blakely Borough; and borough Police Officer Peter Petrucci. Plaintiffs claim

Ferguson and Officer Petrucci unlawfully conspired to have plaintiffs arrested and

prosecuted based upon false charges of neglecting to care for a nursing home

resident. Defendants move to dismiss plaintiffs’ complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6) for failing to state a claim. We will grant in part and

deny in part defendants’ motions.

I. Factual Background & Procedural History

A. Plaintiffs’ Employment with Aventura

Aventura owns, operates, and staffs a nursing home—the aptly named

Aventura at Terrace View—located in Peckville, Pennsylvania. (See Doc. 1 ¶ 9).

The Peckville facility offers “subacute rehab, long term skilled nursing, dementia

memory care, and hospice” services. (See Aventura at Terrace View, About Us,

www.aventuraatterraceview.com/about-us (last visited Oct. 5, 2023)). At the time of

their termination in 2022, Krajkovich had worked at the Peckville facility as a

licensed practical nurse (“LPN”) for more than thirty years and Rivera served as a

certified nurse assistant (“CNA”). (See Doc. 1 ¶¶ 19, 36, 46, 90). Ferguson was their

supervisor. (See id. ¶ 10).

Plaintiffs aver Aventura suffers from “chronic staffing issues.” (See id. ¶ 52).

CNAs assigned to residential units at the Peckville facility generally are responsible

for bathing and grooming residents, monitoring the condition of their skin, and

maintaining logs of these tasks. (See id. ¶¶ 31-33, 49, 52). LPNs review logs for

completeness and only physically assess residents if CNAs note problem areas.

(See id. ¶¶ 34-35). Aventura assigned plaintiffs to a unit with more than 55

residents. (See id. ¶ 52). The experience of one of those residents is central to

plaintiffs’ lawsuit.

B. Hospitalization of Carmella Mecca

Carmella Mecca—an 88-year-old woman with severe dementia who

habitually clenched her fists for nearly half-a-decade—was a resident of the

Peckville facility in the spring of 2022. (See id. ¶¶ 18, 22). Her care team included

occupational and physical therapists, doctors, and various nurses. (See id. ¶ 51).

Mecca had a well-documented history of refusing to let anyone care for her hands

or trim her fingernails; she would become “agitated, irate, and combative” anytime

someone touched her hands. (See id. ¶¶ 23-24). Per Aventura policy, employees are

not permitted to forcibly move a part of a resident’s body, including their fingers or

palms. (See id. ¶¶ 43, 44).

On April 19, 2022, Rivera attempted to clip Mecca’s nails, supposedly for the

first time, but could not clip all of them because Mecca had clenched her fist. (See

id. ¶¶ 36-37, 39). Rivera did not observe any other issues with Mecca’s hand, so

when she completed her logs, she noted only that Mecca’s nails were clipped. (See

id. ¶¶ 36, 45). Plaintiffs aver Rivera filled out the forms correctly and truthfully

under the circumstances. (See id. ¶ 36). None of the “countless” employees who

cared for Mecca on other shifts and were required to monitor her skin documented

any problems with her hand. (See id. ¶¶ 41, 47-50). As a result, neither Krajkovich

nor any other LPN on duty during her days off personally assessed Mecca to

determine whether she had any wounds. (See id. ¶¶ 40-41, 46-48).

On April 25, someone at the facility noticed a necrotic odor emanating from

Mecca’s hand and had her transported to the emergency room. (See id. ¶ 20).

Apart from her malodorous hand, Mecca appeared to be okay. (See id. ¶ 21).

Emergency room doctors needed help to restrain Mecca for examination. (See id.

¶ 26). After forcibly unclenching Mecca’s fist, doctors discovered her fingernails

had broken the skin of her palm and became embedded; the wound was not visible

while Mecca clenched her fist. (See id. ¶¶ 25, 27, 28, 42). Plaintiffs claim it would

have taken six to ten months for Mecca’s nails to grow as long as they had when she

was admitted. (See id. ¶ 38). Doctors washed the festering wound and treated it

with an antibiotic. (See id. ¶ 29).

C. Investigations and Arrest

Ferguson initiated an internal investigation following Mecca’s

hospitalization. (See id. ¶ 30). She retrieved some of Mecca’s skin integrity

assessment logs, but could not find all of them; she also reviewed shower logs. (See

id. ¶¶ 31-32). The logs showed Rivera had been responsible for cutting Mecca’s nails

the week she was admitted to the hospital. (See id. ¶¶ 36, 39).

The Blakely Borough Police Department commenced its own criminal

investigation under the direction of Officer Petrucci, who met with Ferguson “on

numerous occasions” at the Pikeville facility. (See id. ¶¶ 53, 82). The pair

exchanged information and discussed filing criminal charges against plaintiffs.

(See id. ¶ 82). Ferguson informed Officer Petrucci that Rivera, Krajkovich, and one

other person were responsible for Mecca’s hospitalization. (See id. ¶ 54). Plaintiffs

claim Ferguson withheld the names of other employees who cared for Mecca

because she knew it would lead to plaintiffs’ prosecution. (See id.) Ferguson also

purportedly “cherry-picked” the medical records she shared with Officer Petrucci

and gave false information to incriminate plaintiffs. (See id. ¶¶ 55-56). For example,

plaintiffs allege Ferguson falsely told Officer Petrucci LPNs were responsible for

conducting skin assessments regardless of whether CNAs had noted a problem and

that the facility had issued a “palm grip order” for Mecca; Ferguson later repeated

these supposed falsehoods at plaintiffs’ preliminary hearing. (See id. ¶ 60). Officer

Petrucci did not subpoena additional records from Aventura despite knowing

Ferguson failed to provide everything in her possession. (See id. ¶ 58). Plaintiffs

believe Ferguson conspired with Officer Petrucci to lie about them in order to

“shield herself and [Aventura] from liability for systemic failures, staffing shortages,

and other” shortcomings. (See id. ¶¶ 61, 83). Plaintiffs further suggest Ferguson did

so at Aventura’s direction. (See id. ¶¶ 61, 94).

On July 18, Officer Petrucci initiated criminal proceedings against plaintiffs

for neglect of a care dependent person in violation of 18 PA. CONS. STAT. § 2713(a).

(See Doc. 1 ¶¶ 12, 63). Plaintiffs claim he did so without probable cause to believe

they failed to render care or even possessed the requisite mens rea to commit the

charged offense. (See id. ¶¶ 59, 63-65). Plaintiffs were arraigned, “placed on

restricted bail conditions,” and “forced to retain” counsel. (See id. ¶¶ 13-14). They

claim their reputations suffered due to numerous media outlets reporting on their

arrests. (See id. ¶ 15). Aventura eventually fired them. (See id. ¶ 16). Plaintiffs

proceeded to a preliminary hearing on November 16, following which the

magisterial district court dismissed the charges for lack of probable cause. (See id.

¶¶ 17, 18; see also id. ¶ 60).

D. Procedural History

Plaintiffs filed their complaint on December 2, 2022. They raise the following

claims: false arrest and malicious prosecution against Officer Petrucci pursuant to

Section 1983 (Counts II and III, respectively); civil conspiracy under Section 1983

and common-law malicious prosecution against Officer Petrucci and Ferguson

(Counts IV and V, respectively); municipal liability against Blakely Borough

pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (Count I); intentional

infliction of emotional distress against Ferguson (Count VI); and vicarious liability

against Aventura based on the claims against Ferguson (Count VII). Plaintiffs seek

punitive damages and compensation for, inter alia, emotional pain and suffering,

lost wages and employment, embarrassment and humiliation, and reputational

harms. Defendants move to dismiss the complaint for failing to state a claim. The

motions are fully briefed and ripe for disposition.

II. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.

See FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule

12(b)(6), the court must “accept all factual allegations as true, construe the

complaint in the light most favorable to the plaintiff, and determine whether, under

any reasonable reading of the complaint, the plaintiff may be entitled to relief.”

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker

v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

Federal notice and pleading rules require the complaint to provide “the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts

a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31

(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a

plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a

claim must be separated; well-pleaded facts are accepted as true, while mere legal

conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual

allegations, it must determine whether they are sufficient to show a “plausible claim

for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). A claim is

facially plausible when the plaintiff pleads facts “that allow[] the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678.

III. Discussion

The pending Rule 12(b)(6) motions challenge the sufficiency of the pleadings

for all seven counts. Defendants insist plaintiffs’ claims fail because Officer

Petrucci had probable cause to believe they committed a crime. Officer Petrucci

also raises a qualified immunity defense. Ferguson, for her part, invokes immunity

under Pennsylvania law. And Aventura contests vicarious liability on the

assumption the claims against Ferguson will be dismissed. We begin with

Ferguson’s immunity defense because it is common to plaintiffs’ federal and state-

law claims.

A. Ferguson’s Immunity

Pennsylvania law provides a conditional privilege of immunity to persons

who report suspected elder abuse to law enforcement in good faith; immunity does

not apply to those who report abuse “in bad faith or with a malicious purpose.” See

35 PA. STAT. AND CONS. STAT. ANN. § 10225.302(d); 6 PA. Code § 15.22(b); see also

Collins v. Christie, No. 6-4702, 2007 WL 2407105, at *6 & n.14 (E.D. Pa. Aug. 22,

2007). Here, plaintiffs squarely allege Ferguson acted in bad faith by intentionally

providing Officer Petrucci and the magisterial district judge with false information

to wrongfully bring about their prosecutions. (See Doc. 1 ¶¶ 60, 81, 86, 88). We will

therefore deny Ferguson’s assertion of immunity at this stage.

B. Section 1983 Claims

Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. See 42 U.S.C. § 1983. The statute is not a

source of substantive rights, but serves as a mechanism for vindicating rights

otherwise protected by federal law. See Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85

(2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim under

Section 1983, plaintiffs must show a deprivation of a “right secured by the

Constitution and the laws of the United States . . . by a person acting under color of

state law.” See Kneipp, 95 F.3d at 1204 (quoting Mark v. Borough of Hatboro, 51

F.3d 1137, 1141 (3d Cir. 1995)). Officer Petrucci does not dispute that he is a state

actor, so we must determine whether plaintiffs have adequately alleged violations of

their federal rights.

Plaintiffs claim Officer Petrucci initiated criminal proceedings against them

without probable cause, thereby violating their Fourth and Fourteenth Amendment

rights to be free from false arrest and malicious prosecution. (See Doc. 1 ¶¶ 73-78).

Plaintiffs further allege Officer Petrucci conspired with Ferguson to bring about

their prosecution, and that Blakely Borough acted with deliberate indifference

toward the likelihood Officer Petrucci would violate their rights. (See id. ¶¶ 67-72,

79-83). We address these claims seriatim.

1. False Arrest (Count II)

Plaintiffs must plausibly allege they were arrested without probable cause to

state a claim for false arrest under the Fourth Amendment. See Groman

v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (citing Dowling v. City of

Philadelphia, 855 F.2d 136, 141 (3d Cir.1988)); Dull v. W. Manchester Twp. Police

Dep’t, 604 F. Supp. 2d 739, 750 (M.D. Pa. 2009) (Conner, J.). False arrest claims

cover “the time of detention until the issuance of process or arraignment,” at which

point a claim for malicious prosecution would be the appropriate cause of action.

See Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998); accord Noviho

v. Lancaster County, 683 F. App’x 160, 166 (3d Cir. 2017) (nonprecedential). An

assertion of “detention without legal process” is therefore essential to maintaining a

charge of false arrest. See Wallace v. Kato, 549 U.S. 384, 389 (2007). Moreover, a

false arrest claim cannot be based upon the mere issuance of a summons. See

Primrose v. Mellott, No. 1:11-CV-835, 2012 WL 2321384, at *3 (M.D. Pa. June 19,

2012) (citing Colbert v. Angstadt, 169 F. Supp. 2d 352, 358-59 (E.D. Pa. 2001)).

Plaintiffs must allege they were formally arrested or experienced a similar restraint

on their freedom. See id. (citing United States v. Lampkin, 464 F.2d 1093, 1095 (3d

Cir. 1972); Colbert, 169 F. Supp. 2d at 359).

State criminal proceedings in Pennsylvania typically commence either with

“the filing of a complaint, followed by the issuance of a summons or arrest warrant;

or by [] a warrantless arrest, followed by the filing of a complaint.” See PA. R. CRIM.

P. 502, cmt. Plaintiffs repeatedly assert Officer Petrucci arrested them and filed

“criminal charges” or a “criminal complaint,” (see Doc. 1 ¶¶ 12, 59, 83; Doc. 10 at 2,

10, 11-13, 15), but their lack of precision and failure to include any facts about the

alleged arrest has engendered much confusion. Plaintiffs attempt to clarify that

“the Complaint does not allege that an arrest warrant was issued, merely that

charges were filed.” (See Doc. 10 at 11 n.1). If that is true, plaintiffs either were

subject to a warrantless arrest or they received a summons after charges were

filed—but the complaint does not provide a date for the arrest or subsequent

arraignment, or any details about their time spent in custody, if any. (See Doc. 1

¶¶ 13, 15, 57, 59-60). The complaint only identifies the date Officer Petrucci filed

“criminal charges,” (see id. ¶ 12), and when the preliminary hearing was held, (see

id. ¶ 17). Plaintiffs do not allege they were “handcuffed, fingerprinted, taken to a

police station, [or] required to post bond.” See Primrose, 2012 WL 2321384, at *3.

The court is left to wonder whether plaintiffs were “formally arrested” or merely

received a summons without any comparable deprivation of their liberty. See id. If

the latter, plaintiffs’ false arrest claim fails as a matter of law. Given these factual

deficiencies, we will dismiss Count II without prejudice.

2. Malicious Prosecution (Count III)

Plaintiffs’ malicious prosecution claim similarly falls short. To state a claim

for malicious prosecution, plaintiffs must adequately plead the following elements:

(1) defendant commenced a criminal proceeding against them; (2) the proceeding

terminated in their favor; (3) defendant “initiated the proceeding without probable

cause”; (4) defendant acted with malice or with a purpose apart from bringing

plaintiffs to justice; and (5) plaintiffs “suffered deprivation of liberty consistent with

the concept of seizure as a consequence of a legal proceeding.” Johnson v. Knorr,

477 F.3d 75, 81-82 (3d Cir. 2007) (citing Estate of Smith v. Marasco, 318 F.3d 497, 521

(3d Cir. 2003)). The fifth element requires plaintiffs to plausibly allege they were

held in custody or subject to “some onerous types of pretrial, non-custodial

restrictions” like limits on traveling outside the jurisdiction or being required to

post bail. See DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005);

see also Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998). Compulsory

attendance at a hearing or trial without more does not rise to the level of an onerous

restriction on one’s liberty. See Hanks v. County of Delaware, 518 F. Supp. 2d 642,

651 (E.D. Pa. 2007) (citing DiBella, 407 F.3d at 603).

Here, plaintiffs vaguely allege they “were placed on restricted bail

conditions,” (see Doc. 1 ¶ 13), but they offer absolutely no details about those

conditions. Nor have they adequately pled that they were held in custody.

Plaintiffs cannot satisfy the fifth element of their prima facie claim for malicious

prosecution on these sparse allegations. Therefore, we will dismiss Count III

without prejudice as well.1

1 Officer Petrucci also asserts qualified immunity in response to plaintiffs’

federal claims. A court evaluating a claim of qualified immunity considers two

distinct inquiries: whether, viewing the facts alleged in a light most favorable to the

plaintiff, defendant violated a constitutional right and, if so, whether that right was

“clearly established” at the time of the alleged violation. See Spady v. Bethlehem

Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015) (quoting Pearson, 555 U.S. at 232).

Here, we begin and end our analysis with the first prong because plaintiffs have

failed to sufficiently allege a violation of their constitutional rights. Absent those

plausible averments, Officer Petrucci would be entitled to qualified immunity.

However, in light of the opportunity for amendment as set forth in our

accompanying order, we will defer ruling on qualified immunity pending receipt of

an amended complaint.

3. Civil Conspiracy (Count IV)

Plaintiffs believe Officer Petrucci and Ferguson conspired to have them

prosecuted on false pretenses. (See Doc. 1 ¶ 83). A Section 1983 claim for

conspiracy “rises and falls” with the underlying constitutional violation. See

Fantone v. Latini, 780 F.3d 184, 191 (3d Cir. 2015), as amended (Mar. 24, 2015) (citing

Perano v. Township of Tilden, 423 F. App’x 234, 239 (3d Cir. 2011)

(nonprecedential)). Plaintiffs’ conspiracy claim fails because they have not

plausibly and specifically alleged a violation of their federal rights for false arrest

and malicious prosecution as set forth hereinabove. We will therefore grant

defendants’ motions to dismiss Count IV without prejudice.

4. Municipal Liability (Count I)

Plaintiffs advance a theory of municipal liability against Blakely Borough.

(See Doc. 1 ¶¶ 67-72). The Supreme Court of the United States has consistently held

that municipalities and other local government entities may not be held liable in a

Section 1983 suit for the conduct of their employees under a theory of respondeat

superior liability. See Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,

403 (1997) (citing Monell, 436 U.S. at 692); see also Colburn v. Upper Darby

Township, 946 F.2d 1017, 1027 (3d Cir. 1991). Municipal liability only arises when a

government body causes an employee to violate another’s constitutional rights

through an official policy or custom. See Monell, 436 U.S. at 690-94; see also

Montgomery, 159 F.3d at 126.

Policies and customs may be inferred when a municipality acts with

deliberate indifference toward known or obvious risks that improperly trained

employees will violate the rights of people with whom they interact. See Connick

v. Thompson, 563 U.S. 51, 61-62 (2011); see also Vargas v. City of Philadelphia, 783

F.3d 962, 974 (3d Cir. 2015); Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir.

2000) (per curiam). A plaintiff asserting deliberate indifference based upon failure

to train must show “(1) municipal policymakers know that employees will confront

a particular situation; (2) the situation involves a difficult choice or a history of

employees mishandling; and (3) the wrong choice by an employee will frequently

cause deprivation of constitutional rights.” Carter v. City of Philadelphia, 181 F.3d

339, 357 (3d Cir. 1999) (footnote and citation omitted). A demonstrable “pattern of

similar [constitutional] violations by untrained employees” typically is necessary to

establish deliberate indifference. See Connick, 563 U.S. at 62.2

Plaintiffs’ Monell claim suffers from insufficient factual allegations. For

example, the pleadings do not support an inference Blakely Borough issued an

official “proclamation, policy[,] or edict” permitting its officers to initiate criminal

proceedings or make arrests without probable cause or based primarily upon the

influence or wishes of third party employers. See Natale v. Camden Cnty. Corr.

Facility, 318 F.3d 575, 584 (3d Cir. 2003). Nor does the complaint identify a single

2 A single constitutional violation could suffice to establish municipal liability

if “the need for more or different training is so obvious, and the inadequacy so likely

to result in the violation of constitutional rights,” that policymakers reasonably may

be deemed to have acted with deliberate indifference. See City of Canton v. Harris,

489 U.S. 378, 390 (1989). Plaintiffs’ allegations, which largely emphasize Ferguson’s

wrongdoing, complicate their ability to plausibly allege a single-violation theory of

liability against Blakely Borough. In any event, given our conclusion that plaintiffs

have failed to plausibly allege an underlying constitutional violation, Blakely

Borough cannot be held liable on this or any other theory under Monell.

other instance in which Officer Petrucci purportedly arrested someone without

probable cause, despite baldly alleging his “history” of making unlawful arrests.

(See Doc. 1 ¶ 72). Thus, plaintiffs have not “plausibly alleged a ‘pattern’ of known

constitutional violations amounting to an unofficial custom.” See Eberhardinger

v. City of York, No. 1:16-CV-2481, 2017 WL 4167642, at *4-5 (M.D. Pa. Sept. 20, 2017)

(Conner, C.J.) (citing Tereo v. Smuck, No. 1:16-CV-1436, 2017 WL 2080193, at *9

(M.D. Pa. May 15, 2017) (Conner, C.J.)). Because the operative complaint is

factually but not legally deficient, we will grant Blakely Borough’s motion to dismiss

plaintiffs’ Monell claim without prejudice.

C. State Law Claims

Plaintiffs bring ancillary claims under Pennsylvania law for malicious

prosecution, intentional infliction of emotional distress, and vicarious liability. We

address these claims seriatim.

1. Malicious Prosecution (Count V)

Under Pennsylvania law, a claim based upon the common-law tort of

malicious prosecution is identical to its federal counterpart except that it does not

require plaintiffs to allege the unlawful act deprived them of their liberty. See

Henderson v. City of Philadelphia, 853 F. Supp. 2d 514, 518 (E.D. Pa. 2012) (citing

Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791 (3d Cir. 2000)). Private

individuals may be liable for knowingly providing false information to an officer

that results in criminal charges against a third party if doing so renders “an

intelligent exercise of the officer’s discretion . . . impossible.” See Stevens

v. Sullum, No. 3:20-CV-1911, 2021 WL 2784817, at *13 (M.D. Pa. July 2, 2021)

(quoting Restatement (Second) of Torts § 653 cmt. g (1977)); accord Bradley v. Gen.

Accident Ins. Co., 778 A.2d 707, 711 (Pa. Super. Ct. 2001). Probable cause exists

when the facts and circumstances within a police officer’s knowledge would

“warrant a person of reasonable caution to conclude” the person being arrested

committed an offense. See United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002)

(citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). The relevant inquiry is not whether the

individual actually committed the crime for which they were arrested, but whether

the officer had probable cause to believe so at the time of the arrest. See Groman,

47 F.3d at 634 (citing Dowling, 855 F.2d at 141).

Defendants reiterate their argument that Officer Petrucci had probable cause

to arrest plaintiffs and charge them with a crime. (See Doc. 9 at 17-18; Doc. 21 at 12-

13). Whether probable cause exists is a question of law, see Fought v. City of

Wilkes-Barre, 466 F. Supp. 3d 477, 506 (M.D. Pa. 2020) (citing Simpson

v. Montgomery Ward & Co., 46 A.2d 674, 676 (Pa. 1946)), but without the benefit of

discovery, it would be premature at this juncture to attempt to determine whether

Officer Petrucci had the requisite degree of suspicion when he precipitated

plaintiffs’ prosecution, see, e.g., Toribio v. Spece, No. 3:10–CV–2441, 2011 WL

6027000, at *3 (M.D. Pa. Dec. 5, 2011). Plaintiffs allege Ferguson knowingly

provided false information to Officer Petrucci to wrongfully incriminate them, (see

Doc. 1 ¶¶ 56, 61), that Officer Petrucci “willful[ly], wanton[ly], and intentional[ly]”

charged and arrested them without conducting a thorough investigation and

despite lacking prima facie proof of their mens rea, (see id. ¶¶ 58-59, 63-64, 86), and

that a neutral magistrate dismissed the charges for insufficient evidence, (see id.

¶¶ 17, 85). Plaintiffs have set forth a plausible claim for malicious prosecution under

Pennsylvania law against both Officer Petrucci and Ferguson. See Merkle, 211 F.3d

at 791. We will deny defendants’ motions to dismiss this claim.

2. Intentional Infliction of Emotional Distress (Count VI)

To state a claim for the common-law tort of intentional infliction of emotional

distress (“IIED”), a plaintiff must allege: (1) the defendant’s conduct was extreme

and outrageous; (2) the conduct caused the plaintiff severe emotional distress; and

(3) the defendant acted with the intent to cause such distress or knowing that the

same was “substantially certain” to occur. Brown v. Muhlenberg Township, 269

F.3d 205, 217-18 (3d Cir. 2001) (quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt.

d).3 Additionally, “a plaintiff must suffer some type of resulting physical harm due

to the defendant’s outrageous conduct.” Reedy v. Evanson, 615 F.3d 197, 231 (3d

Cir. 2010) (quoting Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005)).

Plaintiffs’ failure to allege they suffered any physical harm is fatal to their IIED

claim. We will therefore dismiss this claim without prejudice.

3. Vicarious Liability (Count VII)

A plaintiff may hold an employer responsible for the acts or omissions of its

employees under Pennsylvania law on a theory of respondeat superior when the

3 The Pennsylvania Supreme Court has not yet explicitly recognized the tort

of intentional infliction of emotional distress. See Taylor v. Albert Einstein Med.

Ctr., 754 A.2d 650, 652 (Pa. 2000). Our court of appeals has predicted that the

Commonwealth’s high court ultimately will adopt the Restatement (Second) of

Torts’ formulation. Williams v. Guzzardi, 875 F.2d 46, 50-51 (3d Cir. 1989); see also

Mills v. City of Harrisburg, 589 F.Supp.2d 544, 558 n.13 (M.D. Pa. 2008) (citing

Taylor, 754 A.2d at 652).

employee’s actions “cause injuries to a third party, provided that such acts were

committed during the course of and within the scope of the employment.” See

Bissett v. Verizon Wireless, 401 F. Supp. 3d 487, 492-93 (M.D. Pa. 2019) (quoting

Costa v. Roxborough Mem’l Hosp., 708 A.2d 490, 493 (Pa. Super. Ct. 1998)). An

employee’s conduct is within the scope of employment when “(1) it is of a kind and

nature that the employee is employed to perform; (2) it occurs substantially within

the authorized time and space limits; [and] (3) it is actuated, at least in part, by a

purpose to serve the employer.” See id. at 493 (quoting R.A. ex rel. N.A. v. First

Church of Christ, 748 A.2d 692, 699 (Pa. Super. Ct. 2000)). As discussed above,

plaintiffs raise a viable claim against Ferguson for malicious prosecution under

Pennsylvania law. The complaint also asserts Ferguson’s conduct was within the

scope of her employment as Director of Nursing at Aventura’s Peckville facility and

was intended to shield Aventura from liability. (See Doc. 1 ¶¶ 10, 61). We will

therefore deny Aventura’s motion to dismiss Count VII to the extent it is predicated

upon plaintiffs’ state-law malicious prosecution claim.

But plaintiffs concede as a matter of law that Aventura cannot be held

vicariously liable for Ferguson’s actions with respect to their Section 1983 civil

conspiracy claim. (See Doc. 25 at 6); see also Jutrowski v. Township of Riverdale,

904 F.3d 280, 290 (3d Cir. 2018). We will therefore grant Aventura’s motion to

dismiss that portion of plaintiffs’ complaint with prejudice. Insofar as vicarious

liability is based upon plaintiffs’ IIED claim against Ferguson, we will dismiss those

grounds without prejudice because the underlying insufficiency is factual in nature.

D. Punitive Damages

Plaintiffs seek punitive damages from Officer Petrucci, Ferguson, and

Aventura. (See Counts II-VII). Only Officer Petrucci disputes the propriety of

punitive damages. (See Doc. 9 at 20). In a Section 1983 action, punitive damages

may be available against officials in their individual capacity “when the defendant’s

conduct is shown to be motivated by evil motive or intent, or when it involves

reckless or callous indifference to the federally protected rights of others.”

Alexander v. Riga, 208 F.3d 419, 430-31 (3d Cir. 2000) (quoting Smith v. Wade, 461

U.S. 30, 56 (1983)). Punitive damages are also available under Pennsylvania law

when a defendant acts with “evil motive or reckless indifference to the rights of

others.” See Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005)

(quoting Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984)). The actor’s state of mind “is

vital,” and their conduct must be “intentional, reckless, or malicious.” See id.

(quoting Feld, 485 A.2d at 748).

At present, the claim for punitive damages under Section 1983 fails because

plaintiffs have not sufficiently alleged a violation of their federal rights. But

plaintiffs have sufficiently alleged that defendants recklessly and intentionally

violated their rights to be free from malicious prosecution under Pennsylvania law.

They claim Officer Petrucci initiated criminal proceedings against them knowing he

lacked probable cause, (see Doc. 1 ¶¶ 57-59), and Ferguson deliberately lied to

incriminate them in furtherance of defendants’ common effort to prosecute them.

See id. (¶¶ 56, 60). These allegations provide a basis for punitive damages. We will

therefore reject Officer Petrucci’s efforts to jettison plaintiffs’ demand for punitive

damages in Count V.

E. Leave to Amend

Courts must generally grant leave to amend before dismissing civil rights

claims if a curative amendment is conceivable. See Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Plaintiffs also seek leave to add two new

claims against Aventura: a Section 1983 civil conspiracy claim and a state law

failure to supervise claim. (See Doc. 25 at 6). Many of the deficiencies identified

herein are factual and thus potentially curable, and the new claims plaintiffs

identify arise out of the same factual circumstances. Accordingly, we will grant

plaintiffs leave to amend consistent with this memorandum.

IV. Conclusion

We will grant in part and deny in part defendants’ motions to dismiss

plaintiffs’ complaint. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: October 17, 2023