Witters v. Smith

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRETT WITTERS and JANELLE : CIVIL ACTION NO. 1:23-CV-1441

WITTERS, :

: (Judge Conner)

Plaintiffs :

:

v. :

:

DYLAN SMITH and LATRAVERICK :

JONES, :

:

Defendants :

MEMORANDUM

This civil action arises out of an alleged trespass by defendants Dylan Smith

and Latraverick Jones, agents of the Pennsylvania Board of Probation and Parole.

In July 2021, Smith and Jones purportedly entered an enclosed backyard belonging

to plaintiffs Brett and Janelle Witters without their permission; Jones then shot

their pet dog, Otis. The Witters bring a claim pursuant to 42 U.S.C. § 1983 for

unlawful seizure in violation of the Fourth Amendment, as well as traditional state

tort law claims of trespass to land, trespass to chattel, intentional and negligent

infliction of emotional distress, and an as-yet unrecognized claim for loss of

consortium and companionship with respect to Otis. Defendants now move to

dismiss the Witters’ claims under Federal Rule of Civil Procedure 12(b)(6) on

various grounds. We will grant the motion in part and deny it in part.

I. Factual Background & Procedural History

According to the complaint, Smith and his supervisor, Jones, arrived at the

Witters’ Mechanicsburg residence in the late morning hours of July 26, 2021. (See

Doc. 1-1 ¶¶ 4-6). As agents of the Parole Board, they sought to determine whether

the residence would be a “suitable location” to which an inmate, whom the Witters

knew personally, could be released on parole. (See id. ¶ 6). No one answered when

the agents knocked on the front door; Janelle was at work that morning and Brett

had stepped out with Otis, their Catahoula leopard dog. (See id. ¶¶ 5, 8). The

Witters had not been given any advanced notice of the visit and Smith and Jones

were not authorized to enter the property. (See id. ¶¶ 7, 9). Nevertheless, the

agents unlatched the Witters’ wrought iron gate, walked “down a path” into their

“fully fenced-in backyard,” and knocked on the back door. (See id. ¶ 8).

Brett returned home with Otis around this time. (See id. ¶ 10). Unaware of

the agents’ presence, he allowed Otis to enter the backyard through the detached

garage at the rear of the property. (See id. ¶ 10). Moments later—and without

warning—Jones fired two shots from his 9mm Glock handgun, one of which struck

Otis in the jaw. (See id. ¶ 11). The Witters aver that Otis did not provoke the

shooting by making any “threatening gestures or actions” toward the agents; in

fact, they assert he “has no history of aggressive behavior” whatsoever. (See id.

¶ 12). According to the complaint, Smith and Jones promptly fled. (See id. ¶ 13).

The Witters rushed Otis to a veterinary care facility in Harrisburg where he

underwent emergency surgery; despite losing “part of his jaw and at least seven

teeth,” Otis survived. (See id. ¶¶ 14-15). Otis was prescribed pain medication, and

he continues to take anxiety medication because of the shooting. (See id. ¶ 16). He

has trouble sleeping, suffers panic attacks, and can no longer enjoy certain hallmark

activities of being a dog, like chewing bones and playing fetch. (See id. ¶¶ 16-17).

The Witters assert that they, too, have suffered emotional distress, including

a persistent inability to feel safe in their home and a lack of faith in law

enforcement. (See id. ¶ 18). They filed this action in the Court of Common Pleas of

Cumberland County in July 2023, and defendants removed it to this court soon

thereafter pursuant to 28 U.S.C. § 1446. The complaint raises five claims: trespass

to land (Count I), trespass to chattel (Count II), unlawful seizure in violation of the

Fourth Amendment (Count III), intentional and negligent infliction of emotional

distress (Count IV), and loss of consortium and companionship (Count V). (See

Doc. 1-1 ¶¶ 20-50). Jones and Smith move to dismiss the complaint in its entirety.

The motion is 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)). In addition to

reviewing the facts contained in the complaint, the court may also consider

“exhibits attached to the complaint, matters of public record, [and] undisputedly

authentic documents if the complainant’s claims are based upon these documents.”

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar.

Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

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); 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 Witters allege that defendants violated their Fourth Amendment right to

be “secure in their persons, houses, papers, and effects,” see U.S. CONST. amend.

IV, because shooting Otis constituted an unreasonable destruction of their personal

property and thus an unlawful seizure, (see Doc. 1-1 ¶¶ 32-43). For that injury, they

seek redress under Section 1983. They also raise various state tort theories,

including loss of consortium and companionship. (See Doc. 1-1 ¶¶ 20-31, 44-50).

Defendants rejoin that they are entitled to qualified immunity; that the Witters have

not adequately pled Smith’s personal involvement in the alleged Fourth

Amendment violation; that each state-law claim is barred by sovereign immunity;

and that Pennsylvania does not recognize loss of consortium for injuries to pets.

(See Doc. 10 at 3-10).

A. Federal Claim – Section 1983

Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. 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 Section 1983 claim, a

plaintiff 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.” Kneipp,

95 F.3d at 1204 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995)).

Defendants raise two distinct challenges to the Witters’ Section 1983 claim.

First, they argue that qualified immunity shields them from liability because,

although “the killing of a person’s dog by a law enforcement officer constitutes a

seizure under the Fourth Amendment,” our court of appeals has not determined

that the same is true for non-fatal shootings. (See Doc. 10 at 5 (quoting Brown

v. Muhlenberg Township, 269 F.3d 205, 210 (3d Cir. 2001) (emphasis in brief))).

Second, they contend that even if the shooting was a seizure in and of itself, the

Witters have not pled that Smith was personally involved given their specific

allegation that Jones pulled the trigger. (See id. at 6 (citing Kost v. Kozakiewicz,

1 F.3d 176, 184 (3d Cir. 1993)).

1. Qualified Immunity

Qualified immunity protects government officials from civil liability pursuant

to Section 1983 where their conduct does not “violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Pearson

v. Callahan, 555 U.S. 223, 231-22 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). Courts must engage in a two-pronged analysis, examining “whether the

facts that a plaintiff has [alleged or] shown make out a violation of a constitutional

right,” and “whether the right at issue was ‘clearly established’ at the time of [the]

defendant’s alleged misconduct.” See Spady v. Bethlehem Area Sch. Dist., 800 F.3d

633, 637 (3d Cir. 2015) (quoting Pearson, 555 U.S. at 232). Defendants’ argument

implicates both prongs, (see Doc. 10 at 5-6), and, in particular, two decisions by our

court of appeals: Brown v. Muhlenberg Township, 269 F.3d 205, and Bletz v. Corrie,

974 F.3d 306 (3d Cir. 2020).

In Brown, the court considered the fatal shooting of a family’s dog, Immi, by

a police officer. Immi had wandered out of the family’s fenced yard, through a

broken gate, and into an adjacent parking lot. See Brown, 269 F.3d at 208-09. The

officer, Robert Eberly, shot Immi repeatedly and without provocation; a neighbor

later testified that he heard the dog’s owner screaming at the officer through an

open window something to the effect of, “That’s my dog, don’t shoot!” See id. at

209. The court began by observing that a seizure occurs for Fourth Amendment

purposes when “there is some meaningful interference with an individual’s

possessory interests in that property,” such as its destruction. See id. at 209-10, 211

(quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Because people have

possessory interests in their pets, the court held that a reasonable officer in Eberly’s

position would have known that it was unlawful to shoot someone’s dog “in the

absence of a substantial public interest that would be served by the destruction.”

See id. at 211. According to the allegata, Officer Eberly hesitated before shooting

Immi, “who posed no imminent danger,” and he did so with full knowledge that her

owners lived nearby and wanted to retrieve her. See id. at 209, 211-12. Accordingly,

the court reversed the district court’s order granting summary judgment to Eberly

on qualified immunity grounds and remanded for further proceedings. See id. at

219.

The court revisited Brown and applied its holding to a very different set of

facts in Bletz. Bletz involved another dog, Ace, who was released from a back door

while several law enforcement officers were swarming the property in an attempt to

serve an arrest warrant. See Bletz, 974 F.3d at 307. One of the officers, Jeremy

Corrie, fired three shots, killing Ace. See id. The court observed that the only

witnesses to the incident stated that Ace had charged Officer Corrie—“growling and

showing his teeth, as though about to attack”—and “did not relent until subdued by

the third bullet.” See at 310-11. Reviewing its decision in Brown, the court

reaffirmed that state interests may justify even the “extreme intrusion” of

destroying a pet in the owner’s presence when it poses an imminent danger to life

or property. See id. at 310 (quoting Brown, 269 F.3d at 210-11). The court then

joined several other circuits in holding that the use of deadly force against a

household pet is reasonable when the pet poses an imminent threat to a police

officer’s safety. See id. The panel affirmed the district court’s order granting

summary judgment in favor of the officers on the grounds that their actions did not

violate the Fourth Amendment. See id. at 311.

Defendants have not compared or contrasted the factual allegations of the

instant case to those of Bletz or Brown. (See Doc. 10 at 5). Rather, they argue that

the absence of a case squarely holding that the non-fatal shooting a pet is a seizure

resolves the qualified immunity inquiry in their favor because the underlying

Fourth Amendment right was not clearly established. (See id. at 5-6). We disagree.

Reading the complaint in the light most favorable to the Witters, the factual

scenario at bar is more akin to Brown than Bletz. The Witters allege that Otis had

no history of violent behavior, that he did not pose an imminent danger or exhibit

“threatening gestures or actions,” and that defendants did not fear for their safety

when they encountered him. (Compare Doc. 1-1 ¶ 12, and Brown, 269 F.3d at 209,

with Bletz, 974 F.3d at 307).

Moreover, it is well-settled that plaintiffs need not identify a case that is

directly on point to demonstrate that the right at issue was clearly established. See

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citing Anderson v. Creighton, 483 U.S.

635, 640 (1987)). It is sufficient to demonstrate that existing precedent has “placed

the statutory or constitutional question beyond debate.” See id. The Brown court

understood that a Fourth Amendment seizure “occurs whenever there is some

meaningful intrusion with an individual’s possessory interest in th[eir] property.”

See Brown, 269 F.3d at 211 (citing Jacobsen, 466 U.S. at 113). A reasonable officer

in defendants’ shoes would have understood that shooting someone’s pet without

proper justification crosses a constitutional line. That Otis survived—distinguishing

this case from Brown—is irrelevant to the question of qualified immunity. As

alleged, defendants’ actions interfered with the Witters’ ownership of Otis the

moment they shot him. The shooting destroyed several of Otis’ teeth and part of his

jaw, and it has had a lasting psychological effect on both him and the Witters family.

(See Doc. 1 ¶¶ 14-18). Defendants are not entitled to qualified immunity under

these circumstances.

2. Personal Involvement – Officer Smith

Defendants also contend that the Witters’ Section 1983 claim against Smith

should be dismissed for lack of personal involvement because the complaint only

alleges that Jones shot Otis. (See Doc. 10 at 6 (citing Kost, 1 F.3d at 184)). On this

point, we agree. For liability to attach in a civil rights action, a defendant must have

been personally involved in the alleged wrongs. See Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir. 1988). This requirement may be satisfied by allegations of direct

participation, personal direction, or actual knowledge and acquiescence, which

must be made with appropriate particularity. See id. Although the Witters aver

that both agents trespassed onto their property, their Fourth Amendment claim

stems directly from Jones’ decision to shoot Otis. (See Doc. 1-1 ¶¶ 8-11, 34). Smith’s

mere presence when Jones pulled the trigger, without more, is not enough to

demonstrate his personal involvement in the conduct that underlies the Witters’

Fourth Amendment claim. See Jutrowski v. Township of Riverdale, 904 F.3d 280,

290 (3d Cir. 2018) (citing Anela v. City of Wildwood, 790 F.2d 1063, 1067-68 (3d Cir.

1986) (further citation omitted)). We will dismiss their claim against Smith without

prejudice. This deficiency is factual, rather than legal. Because curative

amendment is conceivable, we will grant the Witters leave to amend their complaint

if appropriate. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002); FED. R. CIV. P. 15(a)(2) (courts should “freely give leave when justice so

requires”); see, e.g., Guzzo v. Allen Distrib., 479 F. Supp. 3d 91, 98 (M.D. Pa. 2020)

(permitting amendment “if, in fact, [plaintiff] has a good-faith basis for doing so”).

B. State Law Claims

The Commonwealth of Pennsylvania generally immunizes state employees

from suit, subject to just ten enumerated exceptions, none of which apply here. See

1 PA. STAT. AND CONS. STAT. ANN. § 2310; 42 PA. STAT. AND CONS. STAT. ANN.

§ 8522(b). To enjoy sovereign immunity, a Commonwealth defendant must have

been acting within the scope of their employment when they committed the

challenged acts. See 1 PA. STAT. AND CONS. STAT. ANN. § 2310; Larsen v. State

Emps.’ Ret. Sys., 553 F. Supp. 2d 403, 420 (M.D. Pa. 2008). The factors a court must

consider to resolve the scope-of-employment question include whether the conduct:

(1) was “of a kind and nature” that the individual was hired to perform; (2) occurred

“within authorized time and space limits”; and (3) was motivated by a purpose to

serve the individual’s employer. See CNA v. U.S., 535 F.3d 132, 146 (3d Cir. 2008)

(quoting Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (quoting

RESTATEMENT (SECOND) OF AGENCY § 228)). All three factors must be answered in

the affirmative for sovereign immunity to apply. See id. at 147.

Employees operate outside the scope of their employment when they act in

an “outrageous or whimsical” manner. See Frankel v. Moody, 393 F.2d 279, 282 (3d

Cir. 1968) (quoting Potter Title & Tr. Co. v. Knox, 113 A.2d 549, 551 (Pa. 1955)); see

also Haas v. Barto, 829 F. Supp. 729, 734 (M.D. Pa. 1993). For instance, although

certain employees might be expected to use force to achieve “an authorized result,”

see Zion v. Nassan, 283 F.R.D. 247, 267 (W.D. Pa. 2012) (citing, inter alia, Lunn

v. Boyd, 169 A.2d 103, 104 (Pa. 1961)), aff’d 556 F. App’x 103 (3d Cir. 2014)

(nonprecedential), if they use more force than necessary, or if they are motivated by

personal animus, their actions might lack a sufficient nexus with “the business of

the employer.” See Costa v. Roxborough Mem’l Hosp., 708 A.2d 490, 493 (Pa. Super.

Ct. 1998); Fitzgerald v. McCutcheon, 410 A.2d 1270, 1271-72 (Pa. Super. Ct. 1979). In

such circumstances, an employer will not be held vicariously liable for the acts of

their employees. See id.

The Witters raise four common law claims: trespass to land (Count I),

trespass to chattel (Count II), intentional and negligent infliction of emotional

distress (Count IV), and loss of consortium and companionship (Count V). Each

claim implicates both Smith and Jones, who invoke sovereign immunity. (See

Doc. 10 at 6). We will deny defendants’ motion with respect to Count I; dismiss

Count II with respect to Smith only; and dismiss Counts IV and V in full. We will

grant the Witters leave to amend Count II and IV only.

1. Count I: Trespass to Land

To establish a claim for trespass, a plaintiff must prove that someone

intentionally entered upon their land without “a privilege to do so.” See Kennedy

v. Consol Energy, Inc., 116 A.3d 626, 636 (Pa. Super Ct. 2015) (citing Kopka v. Bell

Tel. Co., 91 A.2d 232, 235 (Pa. 1952)). The Witters allege that Smith and Jones

arrived unannounced at their home on July 26, 2021, to determine if it would be “a

suitable location for an inmate to be released on parole” that November. (See

Doc. 1-1 ¶¶ 6, 7). After receiving no answer at the front door, Smith and Jones

purportedly opened a latched gate and entered the family’s fenced backyard. (See

id. ¶ 8). The Witters unambiguously state that they did not authorize or invite the

agents to enter their backyard. (See id. ¶¶ 7, 9). No one meaningfully disputes that

the agents were motivated at least in part by a purpose to serve their employer.

We cannot say with confidence, though, that entering private property—

particularly that of individuals not under state supervision—without permission is

the kind of work parole agents are expected to perform or that doing so is “within

authorized time and space limits” imposed by the agency. See CNA, 535 F.3d at

146. Indeed, some courts have categorically held that sovereign immunity does not

bar suits against Commonwealth employees when plaintiffs plausibly allege a prima

facie case for trespass because acts lacking legal justification are not within the

scope of those employees’ duties. See, e.g., Soler v. Vanim, No. 06-4975, 2007 WL

9810902, at *7 (E.D. Pa. Nov. 19, 2007). For present purposes, however, we need

only acknowledge that, in Pennsylvania, “fact-intensive” scope-of-employment

questions “properly” are left for juries to decide. See Justice v. Lombardo, 208 A.3d

1057, 1060 (Pa. 2019). In Lombardo, the Pennsylvania Supreme Court cautioned

against presuming that “every act by an employee occurs ‘in the discharge of a duty

owing’ to his employer.” See id. at 1074 (quoting Howard v. Zaney Bar, 85 A.2d 401,

402 (Pa. 1952)). Smith and Jones seek just such a presumption. (See Doc. 10 at 8

(claiming sovereign immunity because underlying conduct “occurred when

[defendants] were employed and acting as agents for the PBPP”)). Lacking factual

details regarding the nature of Smith and Jones’ duties and the circumstances

surrounding their visit to the Witters residence, we cannot resolve the scope of

employment inquiry at this stage. The Witters’ trespass claim is plausible, and we

will therefore deny defendants’ motion with respect to Count I.

2. Count II: Trespass to Chattel

To establish a claim for trespass to chattel, a plaintiff must show that the

defendant intentionally dispossessed them of, or intermeddled with, the use of their

property. See Pestco, Inc. v. Associated Prods., Inc., 880 A.2d 700, 708 (Pa. Super.

Ct. 2005). Otis is the chattel at issue here, and the Witters plausibly allege that the

injuries he suffered imposed both immediate and ongoing financial burdens and

interfered with their ability to enjoy his company. (See Doc. 1-1 ¶¶ 15-17, 30-31).

But, as discussed above, the Witters do not articulate any basis for holding Smith

liable for the dog’s injuries. See supra Part III.A.2. We will dismiss Smith from

Count II without prejudice.

In contrast, the complaint plausibly states a claim with respect to Jones.

Courts routinely hold that “where excessive force is in question, so too is whether

that use of force fell within the scope of the defendant’s employment.” See Degroat

v. Felsman, No. 3:16-CV-1186, 2019 WL 652345, at *3 (M.D. Pa. Feb. 15, 2019)

(collecting cases). Our court of appeals has characterized the act of shooting a pet

who poses no imminent safety risk as “extreme.” See Brown, 269 F.3d at 211; see

also Pettit v. New Jersey, No. 09-CV-3735, 2011 WL 1325614, at *5 (D. N.J. Mar. 30,

2011) (amount of force to be employed in restraining an animal “waxes and wanes

with the danger it possesses”) (citing Brown, 269 F.3d at 210-11). Even if we were to

assume that Jones was acting within the scope of his employment when he entered

the Witters’ backyard, the allegation—which has not yet been proven—that he shot

Otis without provocation, (see Doc. 1-1 ¶ 12), is sufficiently outrageous to defeat

sovereign immunity. Thus, we will deny defendants’ motion insofar as Count II

implicates Jones.

3. Count IV: Intentional and Negligent Infliction of Emotional

Distress

A claim of intentional infliction of emotional distress requires proof that:

(1) the defendant’s conduct was extreme and outrageous; (2) the conduct caused the

plaintiff severe emotional distress; and (3) the defendant acted intending to cause

such distress or with knowledge that the same was “substantially certain” to occur.

See Brown, 269 F.3d at 218 (quoting RESTATEMENT (SECOND) OF TORTS § 46,

cmt. d).1 Negligent infliction of emotional distress occurs when (1) a defendant

1 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, however, 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). And the Superior Court has outlined an applicable

owes a contractual or fiduciary duty to the plaintiff; (2) the plaintiff was subjected to

a physical impact; (3) the plaintiff was in a zone of danger and reasonably feared

impending physical injury, or (4) the plaintiff observed a tortious injury to a close

relative. See Toney v. Chester Cnty. Hosp., 961 A.2d 192, 197-98 (Pa. Super. Ct.

2008) (en banc) (citing Doe v. Phila. Cmty. Health Alternatives AIDS Task Force, 745

A.2d 25, 26 (Pa. Super Ct. 2000), aff’d 767 A.2d 548 (Pa. 2001)). Whether intentional

or negligent, claims of tortious infliction of emotional distress must include

allegations that the plaintiff suffered “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)); see Love

v. Cramer, 606 A.2d 1175, 1179 (Pa. Super. Ct. 1992).

The Witters’ claim for emotional distress damages derives entirely from

Jones’ act of shooting Otis. (See Doc. 1-1 ¶¶ 45-46). Smith’s lack of personal

involvement in that act entitles him to dismissal from Count IV. (See id. ¶ 11). More

fundamentally, though, both defendants are entitled to dismissal because the

Witters do not allege that they suffered any physical harm in connection with their

emotional distress. The only physical injuries the complaint identifies are Otis’s.

(See Doc. 1-1 ¶ 17). The Witters merely assert that they “no longer feel safe in their

own home” and have lost confidence in law enforcement. (See id. ¶ 18). These

assertions are insufficient to state a claim for intentional or negligent infliction of

standard. See Wilson v. Am. Gen. Fin., Inc., 807 F. Supp. 2d 219, 301-2 (W.D. Pa.

2011) (citing Reardon v. Allegheny Coll., 926 A.2d 477, 488 (Pa. Super. Ct. 2007)).

emotional distress under Pennsylvania law. See Reedy, 615 F.3d at 231 (quoting

Swisher, 868 A.2d at 1230). We will grant defendants’ motion to dismiss Count IV,

and we will grant the Witters leave to amend to cure these factual deficiencies, if

appropriate and in good faith. See Grayson, 293 F.3d at 108; FED. R. CIV. P. 15(a)(2)

(courts should “freely give leave when justice so requires”).

4. Count V: Loss of Consortium and Companionship

Finally, the complaint includes a claim for losses of consortium and

companionship emanating from Otis’ injuries. (See Doc 1-1 ¶¶ 47-50). Defendants

request dismissal of Count V with prejudice because such claims do not exist in

Pennsylvania as applied to pets. (See Doc. 10 at 8 (citing Daughen v. Fox, 539 A.2d

858, 864-65 (Pa. Super. Ct. 1988)). The Witters candidly concede that Pennsylvania

courts do not recognize such claims, but they urge us to do so in the first instance

on the ground that “[a] number of states have recognized recovery of noneconomic

damages” for pets, including loss of companionship. (See Doc. 17 at 12-15 (citing

William C. Root, Note, “Man’s Best Friend”: Property or Family Member? An

Examination of the Legal Classification of Companion Animals and Its Impact on

Damages Recoverable for Their Wrongful Death or Injury, 47 VILL. L. REV. 423

(2002))).

A generous recasting of scholarship—which recognizes that it advances a

minority view2—cannot prevail over numerous and longstanding holdings from

2 (Compare Doc. 17 at 14 (asserting “[a] number of states” have recognized

loss of companionship for pets), with Root, Man’s Best Friend, 47 VILL. L. REV. at

432-33 (Florida court upheld punitive and compensatory damages based on owner’s

Pennsylvania courts. The Commonwealth’s highest court has steadfastly

maintained that common-law loss of consortium claims are reserved exclusively for

spouses, and it has never recognized a “loss of companionship” claim based upon

injuries to a family pet. See Dep’t of Pub. Welfare v. Schultz, 855 A.2d 753, 755 (Pa.

2004) (citing Cleveland v. Johns-Manville Corp., 690 A.2d 1146, 1149 (Pa. 1997));

Quinn v. City of Pittsburgh, 90 A. 353, 354 (Pa. 1914)); see also Tucker v. Phila. Daily

News, 848 A.2d 113, 127 (Pa. 2004) (consortium “the legal right of one spouse to the

company, affection, and assistance of and to sexual relations with the other”).

Count V does not contain a plausible claim for relief as a matter of law, and

amendment is futile. See Grayson, 293 F.3d at 108.

IV. Conclusion

We will grant in part and deny in part defendants’ motion to dismiss. An

appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: June 10, 2024

mental suffering after malicious killing of dog), and id. at 433-34 (Hawaii court

upheld recovery for infliction of emotional distress arising out of dog’s death)); see

also id. at 424 (majority of states do not allow recovery for emotional suffering from

wrongful injury or death to companion animal)).