# WENDY ARIANA SPENCE v. YEADON BOROUGH

> District Court, E.D. Pennsylvania · September 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10667158

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10667158

## How later opinions describe it (automated extraction)

- describing the contents of the EMSSA’s predecessor
- noting that “to the extent the [provision of the Motor Vehicle Code] discusses civil actions at all, it precludes a private cause of action”
- describing the legislature’s intent in enacting the earlier Emergency Medical Services Act as “aspir[ing] to assure readily available and coordinated emergency medical services of the highest quality to the people of Pennsylvania”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ESTATE OF WENDY ARIANA SPENCE, by
and through BRIAN L. SPENCE AND
MARITZA MOLEIRO-SPENCE, Parents and
CIVIL ACTION
Co-Administrators of the Estate of WENDY
NO. 24-1530
SPENCE
Plaintiff,
v.
YEADON BOROUGH, et al.,
Defendants.
Pappert, J. September 9, 2024
MEMORANDUM
In November of 2022, Wendy Ariana Spence hung herself in a holding cell at the
Yeadon Borough Police Headquarters. Spence’s Estate, through her parents as co-
administrators, sued the Borough, several of its police officers, and a firefighter, as well
as Trinity Health Mid-Atlantic Medical Group and one of its employees, Lyle Kunkle.1
The Estate alleges against the individual defendants a claim under 42 U.S.C
§ 1983 for reckless indifference to Spence’s medical needs in violation of the Fourteenth
Amendment. The Estate asserts a separate Monell claim against the Borough, as well
as three claims under Pennsylvania law. It accuses Trinity Health and Kunkle of
violating the Pennsylvania Emergency Medical Services System Act, Trinity Health,

1 Another purported Trinity Health employee is identified, at least for now, as Jane Doe.
Although plaintiffs may use Doe defendants “until reasonable discovery permits the true defendants
to be identified,” Blakeslee v. Clinton Cnty , 336 Fed. App’x 248, 250 (3d Cir. 2009), only the claims
against Kunkle will be addressed in this opinion.
Kunkle, and Borough firefighter Solomon White of negligence and brings a wrongful
death and survival action against all defendants.
Trinity Health and Kunkle move to dismiss the § 1983 claim against Kunkle
(Count I) and the Emergency Medical Services System Act claim against both of them

(Count III). The Court denies the motion as to the reckless indifference claim against
Kunkle and grants it as to the claim under the Emergency Medical Services System
Act. Because that statute does not provide a private right of action, Count III is
dismissed with prejudice.
I
On November 8, 2022, Yeadon Borough police officers arrested Wendy Spence for
trespassing after they responded to a domestic disturbance call. (Am. Compl. ¶ 24, 31,
ECF No. 15.) Spence was intoxicated, and while speaking with police, became
combative and confused. (Id. at ¶ 28.) During the arrest, Spence screamed and

physically resisted the officers. (Id. at ¶ 32.) On the way to police headquarters, she
continued to scream, and struck her head against the rear window of the squad car
multiple times. (Id. at ¶ 34.)
As an officer began removing the handcuffs from Spence at police headquarters,
Spence repeatedly slammed the cuff into her head. (Id. at ¶ 44.) The police called for
emergency medical services to treat her resulting head wound. (Id. at ¶ 121–22.)
Kunkle and another Trinity Health employee responded. (Id. at ¶ 44, 166–68.) Spence
continued to scream and resist assistance while they treated her. (Id. at ¶ 169.)
Spence repeatedly stated that she wanted to die and threatened to kill herself in the
holding cell. (Id. at ¶ 44, 170.) She asked to be taken to a mental hospital and
demonstrated that she could move her handcuffed arms from the back to the front of
her body. (Id.) After Kunkle and his colleague treated Spence’s head wound, they and
the officers left the cell. (Id. at ¶ 45.)
Within one minute of being left alone, Spence began to hang herself from the cell

doorknob. No one checked on her for roughly twenty minutes, and she was eventually
given life-sustaining measures and transported to Penn Presbyterian Hospital, where
she died ten days later. (Id. at ¶¶ 52–56.)
II
To avoid dismissal for failure to state a claim under Rule 12(b)(6), a complaint
must contain facts sufficient to state a claim that is facially “plausible.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim has facial plausibility when the facts pleaded permit a court to make
the reasonable inference that the defendant is liable for the alleged misconduct. Id.

The “mere possibility of misconduct” is not enough; the complaint “must contain
sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on
its face.’” Id. at 678–79 (quoting Twombly, 550 U.S. at 570).
Determining plausibility is a “context-specific task” requiring a court to use its
“judicial experience and common sense.” Schuchardt v. President of the U.S., 839 F.3d
336, 347 (3d Cir. 2016) (quotations omitted). In making this determination, the court
assumes well-pleaded facts are true, construes those facts in the light most favorable to
the plaintiff, and draws reasonable inferences from them. Connelly v. Lane Constr.
Corp., 809 F.3d 780, 790 (3d Cir. 2016). “Conclusory assertions of fact and legal
conclusions,” however, are not entitled to the presumption of truth. Schuchardt, 839
F.3d at 347. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. And “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).

III
A
Section 1983 requires a plaintiff to allege (1) the violation of a right and (2) that
the violation was committed by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988). Kunkle contends he was not acting under color of state law
when he treated Spence.
Convicted prisoners and pre-trial detainees have a constitutional right to the
provision of adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104, (1976) (holding
failure to provide care to convicted prisoners violates the Eight Amendment); City of

Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (holding the
Fourteenth Amendment protects pre-trial detainees’ right to care). Deliberate
indifference to a serious medical need constitutes a violation of this right. Palakovic v.
Wetzel, 854 F.3d 209, 222 (3d Cir. 2017). A “particular vulnerability to suicide” is one
form of serious medical need. Id. (quoting Colburn v. Upper Darby Township, 946 F.2d
1017, 1023 (3d Cir. 1991)).
The “under color of state law” requirement of Section 1983 can be satisfied by
conduct that constitutes state action under the Fourteenth Amendment. West, 487 U.S.
at 49. An otherwise private actor’s conduct is considered state action where (1) the
private actor exercised power that is traditionally the state’s exclusive prerogative; (2)
the private actor “acted with the help of or in concert with state officials”; or (3) the
state “so far insinuated itself into a position of interdependence with” the private actor
that it must be viewed as a “joint participant” in the conduct. Mark v. Borough of
Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995) (citations omitted). Each test requires a

fact-specific inquiry into the circumstances. Groman v. Township of Manalapan, 47
F.3d 628, 638 (3d Cir. 1995).
A private party can voluntarily assume the state’s obligation to provide medical
care to inmates and pre-trial detainees, thereby becoming a state actor subject to
liability under Section 1983. West, 487 U.S. at 49–58; Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 55 (1999) (“[T]he State was constitutionally obligated to provide
medical treatment to injured inmates, and the delegation of that traditionally exclusive
public function to a private physician gave rise to a finding of state action”). Whether
this care takes place within the prison walls or not is immaterial. Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 827 (7th Cir. 2009). West focused on the
function of the provider, the relationship between the provider, state, and prisoner, and
whether the care was provided voluntarily. Id. at 826–28 (analyzing factors discussed
in West and concluding that there is no “pat answer as to whether any particular
medical care arrangement constitutes state action” under the public function test).
Thus, mere existence of a contract between a private provider and the state is not
determinative of the state action question. Compare West, 487 U.S. at 56 (finding the
provider “voluntarily assumed [the state’s] obligation” when he contracted to provide
medical service in a prison) with Rodriguez, 577 F.3d at 828 (hypothesizing a provider
which agreed to serve anyone in need of emergency treatment and noting that the
provider’s resulting inability to “discriminate against incarcerated individuals does not
mean that it has agreed to step into the shoes of the state and assume the state's
responsibility”). Likewise, merely providing medical care to an individual in state
custody is insufficient to transform a private party into a state actor. See, e.g., Groman,

47 F.3d at 642 (finding no evidence of state control over a volunteer first aid squad’s
actions and holding that neither the police request for aid nor plaintiff’s custodial
status created state action); Peters v. Brown, 793 F. App’x 118 (3d Cir. 2019) (finding
the fact that plaintiff was under arrest when he was brought to the hospital insufficient
to make the treating nurse a state actor).
B
While Kunkle was an employee of a private company (Resp. in Opp. to Mot. to
Dismiss 8, ECF No. 18), the Amended Complaint alleges that Kunkle was called
pursuant to an agreement between Trinity Health and the Borough under which

Trinity Health provides medical care to detainees. (Am. Compl. ¶¶ 122, 123.) Trinity
Health employees were allegedly “stationed” in the same Borough-owned building as
the police and “routinely provided” care to detainees. (Id. at ¶¶ 126, 128.) The Estate
also alleges that Trinity Health “provided EMS personnel to work for and on behalf of
the Yeadon Fire Company who authorized Trinity Health to perform official municipal
EMT services to detainees of the Yeadon police.” (Id. at ¶ 19.)
Taking the Amended Complaint’s allegations as true allows for the reasonable
inference that Trinity Health’s employees acted either (1) pursuant to a contract that
expressly provided for detainee care, thereby satisfying the public function test as a
voluntary assumption of the state’s constitutional obligation, or (2) under the direction
of and in cooperation with the Fire Company, thereby satisfying one of the other tests.
Cf. Rodriguez, 577 F.3d at 828 & n.18 (noting that even where the public function test
isn’t met, care provided at “the affirmative direction of the state, or in collaboration
with the state,” could constitute state action). In either case, the alleged facts provide

at this stage a plausible basis for treating Kunkle as a state actor.
IV
In Count III, Spence’s Estate alleges Trinity Health and Kunkle violated the
Emergency Medical Services System Act (“EMSSA”), 35 Pa. Cons. Stat. Ann. §§ 8101–
58. These defendants argue the statute contains no private right of action, express or
implied, while the Estate believes a private right of action can be inferred from the
law’s liability limitation. Trinity Health and Kunkle have the better of the argument.
A
The EMSSA contains no express private right of action. Because the

Pennsylvania Supreme Court has not addressed whether the statute contains an
implied cause of action, this Court “must predict how it would rule.” Spence v. EASB
Group, Inc., 623 F.3d 212, 216 (3d Cir. 2010). To determine whether a statute
implicitly creates a private cause of action, the Pennsylvania Supreme Court applies a
three-factor test, asking if “(1) the plaintiff is part of a class for whose ‘especial’ benefit
the statute was enacted; (2) there is an indication of legislative intent to create or deny
a remedy; and (3) an implied cause of action is consistent with the underlying purpose
of the legislative scheme.” MERSCORP, Inc. v. Delaware Cnty., 207 A.3d 855, 870 n.14
(citing Estate of Witthoeft v. Kiskaddon, 733 A.2d 623, 626 (Pa. 1999)). “The violation of
a statute and the fact that some person suffered harm does not automatically give rise
to a private cause of action in favor of the injured person.” Witthoeft, 733 A.2d at 627.
B
1

The Pennsylvania Supreme Court would likely not find a private cause of action.
First, Spence did not belong to a special class for whose benefit the statute was enacted.
The Pennsylvania General Assembly emphasized in the law the public interest in
prompt, effective, competent emergency medical services. 35 Pa. Cons. Stat. Ann.
§ 8102. To that end, the statute was intended to “establish and maintain an effective
and efficient emergency medical services system which is accessible on a uniform basis
to residents . . . and to visitors.” Id. § 8102(8); cf. Atcovitz v. Gulph Mills Tennis Club,
Inc., 812 A.2d 1218, 1223 (Pa. 2002) (describing the legislature’s intent in enacting the
earlier Emergency Medical Services Act as “aspir[ing] to assure readily available and

coordinated emergency medical services of the highest quality to the people of
Pennsylvania”). That the statute benefits the broader public, with no class singled out
for an “especial” benefit, suggests that it does not implicitly create a private right of
action. Cf. Witthoeft, 733 A.2d at 627 (“This court is hesitant to provide a cause of
action to the public at large and in certain situations has limited causes of action to
those victims who are part of a foreseeable and identifiable class.”).
As to the applicable test’s second factor, the legislature when enacting the
statute did not indicate any intent to create a private remedy. The statute’s provisions
primarily concern (1) statewide development efforts and an administrative framework
and (2) provider certification, education, and licensing requirements. Cf. McKinney v.
West End Vol. Ambulance Ass’n, 821 F. Supp. 1013, 1015–16 (E.D. Pa. 1992) (describing
the contents of the EMSSA’s predecessor). And the Department of Health is given
express authority to discipline EMS providers and agencies for any violation. 35 Pa.
Cons. Stat. Ann. §§ 8121, 8141, 8142; see also id. §§ 8122, 8124, 8126, 8127 (authorizing

discipline of EMS vehicle operators; EMS instructors; medical command physicians and
facility medical directors; and medical command facilities). Given this comprehensive
enforcement mechanism, a private right of action isn’t necessary to effectuate the EMS
provider requirements. Cf. Hudnell v. Thomas Jefferson Univ. Hospitals, Inc., 537 F.
Supp. 3d 852, 860 (E.D. Pa. 2020) (finding the legislature did not intend to bar a private
cause of action where no administrative agency was given authority to enforce an anti-
discrimination provision and noting that without a private right of action, the
prohibition would be ineffective).
Moreover, the statute contains only two references to private civil suits, neither

of which suggests that private parties may sue for violations of the Act. Section 8152(a)
provides review organizations, and persons who provide them with information,
protection from civil suit. 35 Pa. Cons. Stat. Ann. § 8152(a). Similarly, Section 8151
prohibits awarding civil damages against certain actors “absent a showing of gross
negligence or willful misconduct.” Id. §§ 8151(1), (2), (3), (5); see also id. §§ 8151(6)–(8)
(providing full immunity from civil liability in specific circumstances). Rather than
affirmatively provide for civil damages for grossly negligent or willful misconduct, this
section prohibits liability for conduct that falls below that standard. See, e.g., Bouchon
v. Citizen Care, Inc., 176 A.3d 244, 256–57 (Pa. Super. Ct. 2017) (treating Section 8151
as an immunity provision in a suit alleging gross negligence); Ivers v. Brentwood
Borough Sch. Dist., No. 20-cv-1244, 2021 WL 769489, at *4–*5 (W.D. Pa. February 26,
2021) (same). This liability shield signals the General Assembly’s awareness of
independent causes of action under which providers can be sued; nothing in the text
suggests that it creates a new cause of action for violations of the statute. The fact that

both of these references to private civil suits pertain to circumscribing liability further
suggests that the legislature did not intend to create a private right of action. Cf.
Witthoeft, 733 A.2d at 626 (noting that “to the extent the [provision of the Motor Vehicle
Code] discusses civil actions at all, it precludes a private cause of action”).
Finally, considering the third factor, a private right of action is not consistent
with the law’s purpose. Again, the legislature wished to promote the existence of a
statewide system of competent emergency medical services by creating development
plans, an administrative framework and uniform provider standards. The legislature
chose to expressly authorize administrative sanctions for violations of these standards,

saying nothing about private civil suits. This suggests that the statute’s purpose does
not require a private cause of action. Cf. Solomon v. U.S. Healthcare Systems of
Pennsylvania, Inc., 797 A.2d 346, 353 (Pa. Super. Ct. 2002) (finding the purpose of a
statute would not be served by a private right of action where, “[o]n the contrary,” the
law “clearly set forth a system of managed health care accountability to be enforced by
the Insurance Department, not by a private action”).
2
Examination of the specific provisions Kunkle allegedly violated reinforces this
reading of the statute. Section 8115(a)(2) is merely a descriptive definition of the work
an EMT can perform; it imposes no required action enforceable by litigation. 35 Pa.
Cons. Stat. Ann. § 8115(a)(2). In Section 8121(a), authority to discipline providers for
the enumerated acts is expressly given to the Department, with no mention of private
litigation for any violation. Id. § 8121(a). And although Section 8129(m) sometimes
requires an EMS agency to transport individuals in state custody for treatment,

nothing in the text suggests the legislature intended this requirement be privately
enforced, whereas the Department is expressly authorized to pursue sanctions against
EMS agencies in Section 8142. Id. §§ 8129(m), 8142.
V
A court should grant a plaintiff leave to amend a complaint “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). This rule expresses “a preference for liberally
granting leave to amend” unless “amendment would cause undue delay or prejudice, or
that amendment would be futile.” Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000).
Amendment is futile when “the complaint, as amended, would fail to state a claim upon

which relief could be granted.” In re Merck & Co. Sec., Derivative & ERISA Litig., 493
F.3d 393, 400 (3d Cir. 2007) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1434 (3d Cir. 1997)). The decision of whether to grant or deny leave to amend is
within the sound discretion of the district court. Cureton v. Nat’l Collegiate Athletic
Ass’n, 252 F.3d 267, 272 (3d Cir. 2001) (citations omitted). Because there is no private
right of action under the EMSSA, it would be futile for the Estate to attempt to amend
this claim.

An appropriate Order follows.
BY THE COURT:

/s/ Gerald J. Pappert
Gerald J. Pappert, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667158. Public record. Not legal advice.