# Amspacher v. Red Lion Area School District

> District Court, M.D. Pennsylvania · October 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10667935

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** October 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- explaining a brief in opposition to a motion to dismiss may not amend a complaint

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HOPE AMSPACHER, Administrator of : Civil No. 1:23-CV-00286
the Estate of Zachary Kirchner, and :
MATTHEW KIRCHNER, :
:
Plaintiffs, :
:
v. :
:
RED LION AREA SCHOOL :
DISTRICT, et al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
This case arises from the tragic suicide of Zachary Kirchner (“Zachary”) and
his brother’s subsequent discovery of Zachary’s lifeless body. Currently submitted
for the court’s consideration are the respective motions to dismiss filed by
Defendants Jason Hoffman (“Hoffman”), W.G., T.F., L.D., and D.M. (“Student
Defendants”). (Docs. 60, 63, 65, 74, & 79.) The court must decide whether four
of Plaintiffs’ claims can proceed: a state-created danger claim against Hoffman
(Count I), a negligence claim against Student Defendants (Count V), an intentional
infliction of emotional distress (“IIED”) claim against Student Defendants brought
by Zachary’s brother, Matthew Kirchner (“Matthew”) (Count VI), and an IIED
claim against Students Defendants brough by Zachary’s estate (“Estate”) (Count
VII). For the following reasons, the court will dismiss the state-created danger
claim. The court will also dismiss the negligence claim and Matthew’s IIED claim
against W.G., L.D., and D.M. Finally, the court will dismiss the Estate’s IIED
claim against W.G.

FACTUAL BACKGROUND AND PROCEDURAL POSTURE
This is the second round of motions to dismiss in this matter. The first
round concerned Plaintiffs’ first amended complaint. (Doc. 18.) This round

concerns Plaintiffs’ second amended complaint. (Doc. 59.) The second amended
complaint contains the same core facts that the court summarized in its previous
order. (Doc. 55, pp. 2–8.)1 Rather than recount those facts here, the court will

describe Plaintiffs’ newly alleged facts.
The second amended complaint contains six new factual allegations by the
court’s count. At issue presently, some of the new allegations concern specific
Student Defendants. Specifically, Plaintiffs allege that D.M. once stood in a park

near Zachary’s residence yelling that Zachary was a “faggot” and “fucking faggot.”
(Doc. 59, ¶ 42.) So, too, Plaintiffs allege that “T.F. had relentlessly tormented
[Zachary] since they were much younger” and continued bullying him into middle

school and high school. (Id. ¶ 43.) T.F.’s bullying of Zachary got so bad that
Zachary’s parents spoke with T.F.’s parents/guardians, ultimately to no avail. (Id.
¶¶ 44–45.) The other new allegations generally aim to establish that Matthew

personally witnessed bullying and/or harassment targeted at Zachary. Plaintiffs

1 For ease of reference, the court uses the page numbers from the CM/ECF header.
allege that “[Matthew] and classmates of [Zachary] and Students Defendants
personally witnessed all Student Defendants verbally harassing and bullying

[Zachary] both within RLASD schools and outside of school.” (Id. ¶ 39.)
Plaintiffs also allege that “[o]ther classmates of [Zachary] and Student Defendants,
including [Matthew], personally saw harassing social media posts by L.D., D.M.,

T.F., and C.A., including those directing [Zachary] to kill himself.” (Id. ¶ 47.)
Plaintiffs’ second amendment of their complaint was spurred by the court’s
dismissal of some of the same claims presently at issue. The court dismissed
without prejudice the negligence claim against T.F., L.D., and W.G., and

Matthew’s IIED claim against L.D. and W.G. (Doc. 56.)2 The court did not
dismiss the IIED claims against T.F. (Id.)
In the second amended complaint, Plaintiff renewed all the claims that the

court dismissed without prejudice. Moving Defendants believe that Plaintiffs’
amendment failed to cure the previously-identified deficiencies. Accordingly,
Hoffman, W.G., T.F., L.D., and D.M. each filed a motion to dismiss and a brief in
support. (Docs. 60, 61, 63, 64, 65, 66, 74, 75, and 79, 80.) Plaintiffs filed a brief

in opposition to each motion. (Docs. 70, 71, 72, 77, and 81.) Only T.F. filed a
reply brief. (Doc. 73.) The motions are ripe for review.

2 The court also dismissed with prejudice the state-created danger claim brought against former
defendant Officer Marc Greenly on qualified immunity grounds. (Doc. 56.)
JURISDICTION
This case arises under both the laws of the United States and the laws of

Pennsylvania. The court has subject matter jurisdiction over Plaintiffs’ federal
claims pursuant to 28 U.S.C. § 1331 and their state law claims pursuant to 28
U.S.C. § 1367. Venue is proper in this court. See 28 U.S.C. § 1391.
STANDARD OF REVIEW

In order “[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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.
2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint
survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than
conclusions and thus not entitled to the assumption of truth,” and determines
whether the remaining factual allegations “plausibly give rise to an entitlement to
relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012), abrogated on other
grounds as recognized in Mack v. Yost, 968 F.3d 311, 319 n. 7 (3rd Cir. 2020).

DISCUSSION
A. Qualified Immunity Precludes Matthew’s State-Created Danger
Claim.
According to Plaintiffs, Hoffman—a counselor at Red Lion Area Senior
High School—conducted a wellness check on Zachary the day of his suicide at the
request of Zachary’s mother. (Doc. 59, ¶¶ 15, 117.) Hoffman’s decision to take

Matthew along to perform the wellness check and Matthew’s subsequent discovery
of Zachary’s lifeless body are the bases for the state-created danger claim.
Matthew claims that Hoffman took him to perform the wellness check despite
being aware of the likelihood that Zachary had harmed himself and the dangerous

conditions that would confront Matthew. (See id., ¶¶ 137–51.) Matthew contends
that Hoffman’s conduct violated his “constitutionally protected . . . right to be free
from unjustified intrusion upon [his] physical and emotional well-being.” (Id. ¶

139.) Hoffman argues, in part, that qualified immunity shields him from this
claim. (Doc. 64, pp. 8–10.)
The court has previously considered the applicability of qualified immunity
with respect to Matthew’s claim for state-created danger. (Doc. 55, pp. 9–14.)

Matthew initially brought this claim against both Hoffman and Officer Marc
Greenly, another participant present at the wellness check. Officer Greenly
previously moved to dismiss this count on qualified-immunity grounds. (Id. at 9.)
The court’s analysis focused on whether the right allegedly violated was clearly

established at the time of the wellness check. (Id. at 12–13); see generally
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (overcoming qualified immunity
requires a showing “(1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of the challenged
conduct”). The court concluded, in part, that there was no right in the Third
Circuit to be free from unjustified intrusion upon physical and emotional well-
being nor to be free from such intrusion upon emotional well-being absent physical

harm. (Doc. 55, p. 13.) Thus, the court found that qualified immunity shielded
Officer Greenly.
Hoffman’s motion asks the court to apply the same conclusion to the state-

created danger claim against him. In fact, he argues that the law-of-the-case
doctrine necessitates dismissal of the claim against him. (Doc. 64, p. 10.)
Plaintiffs do not address the fact that the court has previously ruled on this issue.
Instead, they attempt to relitigate it. Plaintiffs suggest that the court’s prior

conclusion is misguided, because precedent supports state-created danger claims
based on either physical or mental harm. (Doc. 71, pp. 21–22.) Just as they did
before, Plaintiffs primarily rely on L.R. v. School District of Philadelphia, 836 F.3d

235 (3rd Cir. 2016) and White v. Rochford, 592 F.2d 381 (7th Cir. 1979) to argue
that a broad right to be free from intrusion upon physical and mental well-being
exists and was a clearly established right at the time of this incident. (Doc. 71, pp.

21–23.) Plaintiffs’ arguments are unavailing. The holdings of those cases cannot
be separated from their facts. Indeed, the right at issue in a qualified immunity
analysis must be analyzed “in light of the specific context of the case, not as a

broad general proposition.” See L.R., 836 F.3d at 248 (quoting Saucier v. Katz,
533 U.S. 194, 201 (2001)).
In L.R., a teacher permitted a kindergartener to leave school with a stranger
who ultimately sexually assaulted her. 836 F.3d at 239–40. In White, police

officers arrested a car’s driver and abandoned the children in the car on a highway
in Chicago, forcing the children to cross eight lanes of traffic and wander the
highway in search of a telephone. 592 F.2d at 382. L.R. and White both involved

instances where the public official put a child in a situation that obviously involved
physical danger. Moreover, the cases upon which the L.R. court relied in reaching
its holding involved instances in which plaintiffs were put into physical danger.
See Rivas v. City of Passaic, 365 F.3d 181, 194–96 (3rd Cir. 2004) (first

responders created danger for plaintiff when they told police that plaintiff assaulted
them without telling the police officers that the plaintiff had a seizure condition);
Currier v. Doran, 242 F.3d 905, 909–10 (10th Cir. 2001) (state social workers

recommended that a father obtain custody of children then failed to investigate
known signs and allegations of the father’s child abuse); Armijo ex rel. Chavez v.
Wagon Mound Pub. Sch., 159 F.3d 1253, 1256–57 (10th Cir. 1998) (school

officials sent a special education student home after he made threats against a
teacher, despite knowing the student had suicidal ideations and access to firearms
at home); Kneipp v. Tedder, 95 F.3d 1199, 1202–03 (3rd Cir. 1996) (police officer

separated a wife from her husband then abandoned her, causing her to be exposed
to dangerously cold conditions, which led to permanent physical injury); Wood v.
Ostrander, 879 F.2d 583, 586 (9th Cir. 1989) (police officer abandoned a female
passenger after arresting the driver in an area with one of “the highest aggravated

crime rate[s] in the county,” which ultimately led to the woman being raped);
Bowers v. DeVito, 686 F.2d 616, 617 (7th Cir. 1982) (decedent was murdered by a
patient after personnel at a public mental health center released the patient despite

knowing he was dangerous).
Nothing about the facts of those cases suggest that putting an individual in
an emotionally harmful situation violated a clearly established right. Plaintiffs rely
on cases that clearly involved physical danger, while arguing this court need not be

“constrained by the antiquated thought that the only actionable injuries are
intrusions upon purely physical well-being.” (Doc. 71, p. 22.). Yet, Plaintiffs fail
to point to a single case in which a state-created danger claim was predicated on

intruding upon one’s emotional well-being absent any risk of physical harm. The
right to be free from unjustified intrusion of one’s physical well-being and the right
to be free from unjustified intrusion of one’s mental well-being are distinct rights.

Equating the two would require defining the allegedly violated right in this case at
a higher level of generality than is appropriate. See Kisela v. Hughes, 584 U.S.
100, 104 (2018) (explaining the Court has repeatedly stated that clearly established

law should not be defined at a “high level of generality”). Accordingly, the court
stands by its previous holding: a right to be free from unjustified intrusion upon
emotional well-being absent physical harm was not a clearly established right at
the time of Hoffman’s conduct.

Plaintiffs explain that the emotional trauma Matthew suffered has
manifested into physical symptoms, “including post-traumatic stress symptoms,
severe depression, frequent nightmares, intense headaches, and stomach pain.”

(Doc. 71, p. 23.) The court does not doubt that emotional trauma can cause
physical symptoms, especially in a severely traumatic experience like the one
Matthew suffered. But, Matthew does not allege any of this physical harm in his
second amended complaint. He cannot make up for this omission in his opposition

brief. See Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181
(3rd Cir. 1988) (explaining a brief in opposition to a motion to dismiss may not
amend a complaint).

For the foregoing reasons, the court will dismiss Count I with prejudice.
B. Pennsylvania does not Recognize Recovery for Suicide in Negligence,
Absent Certain Exceptions.
Student Defendants move to dismiss Count V of Plaintiffs’ second amended
complaint. Plaintiffs style Count V’s cause of action as “Gross Negligence and/or

Recklessness.” (Doc. 59, p. 27.) For the purpose of this discussion, this is a
negligence claim. See Spence v. ESAB Grp., Inc., 623 F.3d 212, 215 n.2 (3rd Cir.
2010) (“[T]here is no separate cause of action under Pennsylvania law for gross
negligence.”); Monroe v. CBH20, LP, 286 A.3d 785, 799 (Pa. Super. Ct. 2022)

(“[G]ross negligence and recklessness are states of mind; they are forms of
negligence, not independent causes of action.”). In essence, Count V alleges that
the Students Defendants’ negligence caused Zachary’s suicide.

In the previous round of motions to dismiss, T.F., W.G., and L.D.
successfully moved to dismiss Count V. The court dismissed the claim because
Plaintiffs failed to identify an applicable duty of care in the first amended
complaint. (Doc. 55, p. 15–16.) Plaintiffs appear to have remedied that deficiency

in the second amended complaint. Plaintiffs now allege that “Student Defendants
owed a general duty of care imposed on all persons not to expose others, include
[Zachary], to reasonably foreseeable risks of injury.” (Doc. 59, ¶ 174.)

In response, Student Defendants present argument concerning why the
Student Defendants had no duty to Zachary to refrain from bullying him. (Doc.
Doc. 61, p. 10; Doc. 66, p. 11; Doc. 75, p. 12; Doc. 80, p. 13.) They generally
contend that the five factors for determining the existence of a duty described in
Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000), weigh against

recognizing such a duty. Whether Students Defendants owed a duty to Zachary to
refrain from bullying him appears to be a novel issue under Pennsylvania law. No
party has cited controlling Pennsylvania authority on the issue, and the court’s own

review of the caselaw yielded no on-point case. The court, however, need not
wade into the murky waters of predicting whether Pennsylvania courts would
recognize a duty in this case. That is because, as T.F. and D.M correctly note,
Pennsylvania law does not recognize suicide as a cognizable basis for recovery in

negligence, absent exceptions that are not applicable here.
The causation element of a negligence claim requires an alleged tortfeasor’s
negligence to be both the cause in fact and the proximate cause of the plaintiff’s

injury. Galullo v. Federal Exp. Corp., 937 F. Supp. 392, 394 (E.D. Pa. 1996). Of
course, multiple forces may contribute to a plaintiff’s injury. This reality does not
necessarily relieve a tortfeasor of liability. “One who negligently creates a
dangerous condition cannot escape liability for the natural and probable

consequences thereof, although the innocent act of a third party may have
contributed to the final result.” Bleman v. Gold, 246 A.2d 376, 380 (Pa. 1968)
(quoting Stark v. Lehigh Foundries, Inc., 130 A.2d 123, 130 (Pa. 1957)).

Negligence will not give rise to liability, however, when an intervening act is
deemed a superseding cause of the injury. See Corbett v. Weisband, 551 A.2d
1059, 1073 (Pa. Super. Ct. 1988). Under long-standing Pennsylvania law,

determining whether an intervening act is a superseding cause turns on “whether
the intervening conduct was so extraordinary as not to have been reasonably
foreseeable.” Powell v. Drumheller, 653 A.2d 619, 623 (Pa. 1995); accord

Hendricks v. Pyramid Motor Freight Corp., 195 A. 907, 909 (Pa. 1938).
An occurrence as extraordinary as suicide presents a superseding-cause
issue. Pennsylvania law generally recognizes that “suicide constitutes an
independent intervening act so extraordinary as not to have been reasonably

foreseeable by the original tortfeasor.” McPeake v. William T. Cannon, Esquire,
P.C., 553 A.2d 439, 441 (Pa. Super. Ct. 1989). Accordingly, Pennsylvania’s
general rule “is that liability cannot be imposed upon third parties for another’s

suicide.” Estate of Puza v. Carbon Cty., 586 F. Supp. 2d 271, 274 (M.D. Pa.
2007). Pennsylvania’s rule comports with the general consensus among courts
across the country that consider suicide a superseding cause. See Alex B. Long,
Abolishing the Suicide Rule, 113 NW. U. L. REV. 767, 783–85 (2019) (explaining

that U.S. courts widely accept the notion that “suicide is a superseding cause of
death”).
Courts applying Pennsylvania law have consistently relied on this rule to bar

negligence claims arising from suicide. See, e.g., Sullivan v. Truist Bank, 715 F.
Supp. 3d 668, 672–74 (E.D. Pa. 2024); Ferris v. Cleaveland, No. 3:10-cv-1302,
2012 WL 2564782, at *1 (M.D. Pa. July 2, 2012); Estate of Puza, 586 F. Supp. at

274–76, aff’d sub nom. Barker-Puza v. Carbon Cty., 304 F. App’x 47 (3rd Cir.
2008); Cooper v. Frankford Health Care Sys., Inc., 960 A.2d 134, 146–47 (Pa.
Super. Ct. 2008).

Plaintiffs fail to argue why the Pennsylvania rule should not preclude their
negligence claim. Although Pennsylvania law recognizes certain discrete
exceptions to the general rule, none of them apply here. One exception exists for
“suits brought under the worker’s compensation statute.” McPeake, 553 A.2d at

441. Another exists for cases involving mental health institutions and
professionals, “where there is a custodial relationship and the defendant has a
recognized duty of care towards the decedent.” Id. Finally, for cases not involving

health care institutions, liability could be predicated upon “both a clear showing of
a duty to prevent the decedent’s suicide and a direct causal connection between the
alleged negligence and the suicide.” Id. Nothing suggests, nor do Plaintiffs argue,
that any of these exceptions would save Count V.

Beyond the recognized exceptions, the court’s research has identified a few
cases in which courts have refused to follow the general rule, even though no
recognized exception applied. For instance, in one case, the Pennsylvania Court of

Common Pleas found that a decedent’s administratrix could assert negligence
claims against a driver and the driver’s employer when the decedent committed
suicide after being unable to cope with pain and depression resulting from a car

accident caused by defendants. Mackin v. Arthur J. McHale Heating & Air
Conditioning Co., 76 Pa. D. & C.4th 544, 549–50 (2005); see also Hudak-Bisset v.
Cty. of Lackawanna, 37 Pa. D. & C.5th 159 (2014) (general rule did not preclude

plaintiff from amending negligence claim against defendant who hit decedent with
a bus causing him crippling chronic pain that ultimately led to the decedent’s
suicide). So, too, the Western District of Pennsylvania has found reason not to
apply Pennsylvania’s general rule absent an exception. See Sabo v. UPMC

Altoona, 386 F. Supp. 3d 530, 559–60 (W.D. Pa. 2019) (declining to follow
general rule because a former employee’s attempted suicide following her
termination “was more foreseeable than the suicides in McPeake and Cooper”

because she expressed her suicidal ideations to her former colleagues).
This court will not follow these cases in departing from the general rule.
With regard to Mackin and Hudak-Bisset, two state trial court holdings is not
enough to deviate from a well-established state law rule. See Ferris, 2012 WL

2564782, at *2 (refusing to deviate from general rule based on Mackin holding);
see also Spence, 623 F.3d at 216–17 (explaining that in the absence of controlling
authority from a state supreme court, a federal court sitting in diversity “must look

to decisions of state intermediate appellate courts, of federal courts interpreting the
state law, and of other state supreme courts that have addressed the issue.”). With
regard to Sabo this court is unconvinced that court’s holding accurately reflects the

controlling law in this context. The Sabo court distinguished the facts of its case
from McPeake but failed to address why the broader principle of Pennsylvania law
articulated in McPeake and other cases did not apply. As explained above, this

court is not convinced that McPeake represents a fact-limited holding. Ultimately,
this court finds no reason to deviate from Pennsylvania’s well-established law and,
thus, will dismiss Plaintiffs’ negligence claim with prejudice.
C. Intentional Infliction of Emotional Distress

W.G. , L.D., and D.M. seek to dismiss the two IIED claims lodged against
them. One of those claims, Count VII, is brought by the Estate. (Doc. 59, ¶¶ 187–
92.) The other, Count VI, is brought by Matthew on the theory that he was a
bystander to Student Defendant’s intentional infliction of emotional distress upon

Zachary. (Id. ¶¶ 181–86). T.F. does not seek dismissal of the IIED claims against
him. Rather, he simply seeks dismissal of the punitive damage claims associated
with Counts VI and VII.

An IIED claim requires three showings: “(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.” (Dobson v. Milton
Hershey Sch., 356 F. Supp. 3d 428, 439 (M.D. Pa. 2018) (citing Brown v.
Muhlenberg Twp., 269 F.3d 205, 217–18 (3rd Cir. 2001)). With these elements in

mind, the court will address Defendants’ arguments.
1. W.G.’s conduct was not extreme and outrageous as a matter of
law.
W.G. argues, in part, that the IIED claims against him must fail, because his
alleged conduct was not extreme and outrageous as a matter of law. Plaintiffs
respond that it would be inappropriate for the court to look at “individual aspects

of [W.G.’s] conduct in a vacuum.” (Doc. 70, p. 23.) Rather, Plaintiffs insist that
W.G. acting in concert with the other defendants with “herd mentality” to bully
Zachary for years was outrageous. (Id. at 22–23.) Plaintiffs’ further argue that

W.G.’s conduct constituted “torture.” (Id. at 23.)
It is well established that only the most extreme and outrageous conduct will
give rise to an IIED claim. See Cox v. Keystone Carbon Co., 861 F.2d 390, 395
(3rd Cir. 1988) (admonishing that “Pennsylvania courts have been chary to declare

conduct ‘outrageous’”); Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998)
(explaining the tort is reserved for “only the most clearly desperate and ultra
extreme conduct”). Indeed, the conduct must be “so outrageous in character, so

extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in civilized society.” Televandos v.
Vacation Charters, Ltd., 264 F. App’x 190, 192 (3rd Cir. 2008) (quoting Hoy, 720
A.2d 745 at 754). “[M]ere insults, indignities, threats, annoyances, petty
oppressions, and other trivialities” do not constitute extreme and outrageous

conduct. Shumate v. Twin Tier Hosp., LLC, 655 F. Supp. 2d 521, 543 (M.D. Pa.
2009) (quoting Bowersox v. P.H. Glatfelter Co., 677 F. Supp. 307, 310 (M.D. Pa.
1988); accord Restatement (Second) of Torts § 46, cmt. d (Am. Law Inst. 1965).

Plaintiffs mostly rely on group allegations concerning the Student
Defendants’ conduct. These alone are insufficient to put W.G. on notice of the
claims against him. See McMillan v. Lycoming Cty., 4:23-cv-00561, 2024 WL
315725, at *5 (M.D. Pa. Jan. 26, 2024) (quoting Pollard v. Clark, No. 20-cv-

00194, 2021 WL 5911055, at *3 (W.D. Pa. Nov. 4, 2021) (“Allegations that
broadly implicate multiple defendants without delineating individual conduct are
legally insufficient.”). Plaintiffs allege only one instance of bullying specifically

attributable to W.G. When the children were in eighth grade—the year before
Zachary’s suicide—“W.G. went up to [Zachary] with a lollipop making sexual
gestures and making gay jokes such as ‘I got a lollipop for you.’” (Doc. 59, ¶ 40.)
This conduct, while inappropriate and hurtful, is not extreme and outrageous.

W.G. cites several cases from this circuit—including two from this district,
that have considered the outrageousness of conduct in the school context—but
Price ex rel. O.P. v. Scranton School District, No. 11-cv-0095, 2012 WL 37090

(M.D. Pa. Jan. 6, 2012), is particularly instructive. The court discussed Price in its
previous order. (Doc. 55, p. 18.) In Price, classmates began harassing a girl after
they learned she contracted a yeast infection. 2012 WL 37090, at *2. Eventually,

the harassment escalated to the point that the classmates were calling the girl
derogatory names like “bitch, skank, slut, tramp, and whore.” Id. (internal
quotations omitted). The students continued leveling verbal attacks throughout the

school year, into the summer, and even into the next school year. Id. at *2–3. This
sustained harassment caused the girl to suffer from posttraumatic stress disorder,
depression, and anxiety, and led her to contemplate suicide. Id. at *4. In
determining the classmates’ conduct was not cognizably outrageous, the court

applied Pennsylvania’s general rule that “sexual harassment alone does not rise to
the level of outrageousness necessary to make out a cause of action for [IIED].”
Id. at *12 (quoting Andrews v. City of Phila., 895 F.2d 1469, 1487 (3rd Cir. 1990)).

Moreover, the Price court distinguished its case from DiSalvio v. Lower Marion
High School District, 158 F. Supp. 2d 553 (E.D. Pa. 2001), a case in which a
school employee’s sexual harassment of a student was deemed outrageous for the
purposes of an IIED claim. Price, 2012 WL 37090, at *2. The Price court

reasoned that its case did not involve the same power imbalance that was present in
DiSalvio. Id.
It is not apparent that W.G.’s alleged singular instance of harassing Zachary

is as severe as the continuous conduct deemed insufficiently outrageous in Price.
At most, W.G.’s conduct is of a similar nature to the harassment in Price.
Moreover, no power imbalance existed between W.G. and Zachary. Plaintiffs do

not present any authority supporting their contention that W.G.’s conduct was
outrageous and extreme. Instead, plaintiffs’ argument focuses mostly on disputing
W.G.’s purported characterization of his conduct as “childish taunting” and

accusing W.G. of attempting to “hide behind the lens of only being a child.” (Doc.
70, p. 23.) This argument is beside the point. W.G.’s alleged conduct—while rude
and demeaning—was not sufficiently outrageous to support an IIED claim no
matter how one characterizes it. Accordingly, the court will dismiss both IIED

claims against W.G.
Further amendment of this claim would be futile. Plaintiffs’ specific
allegations concerning W.G.’s conduct have not changed in any of their three

complaints. (See Docs. 1, 18, & 59.) Thus, the court will dismiss the claims with
prejudice.
2. Matthew failed to allege adequately that he was present for
L.D.’s or D.M.’s alleged tortious conduct.
L.D. and D.M. move to dismiss Matthew’s IIED claim against them. They
argue that Matthew has failed to allege that he was present for their alleged

outrageous conduct directed at Zachary. The court previously determined that
Matthew’s claim failed for this reason. (Doc. 55, pp. 21–22.) As the court
explained, an individual suffering emotional distress as a result of conduct directed
at another “must be present when the outrageous conduct is directed at the third
person.” Johnson v. Caparelli, 625 A.2d 668, 672 (Pa. Super. Ct. 1993). Plaintiffs

acknowledge Johnson’s holding and do not dispute that Matthew must have been
present for L.D.’s and D.M.’s outrageous conduct for the IIED claim to pass
muster. (See Doc. 77, pp. 24–25; Doc. 81, p. 25.) So, the survival of Matthew’s

claim will depend on whether the second amended complaint cured this defect.
The court previously held that some of Matthew’s allegations were
“suggestive of physical presence,” but nevertheless insufficient to support his IIED
claim. (Doc. 55, p. 22.) Plaintiffs only cite to one new allegation in arguing that

Matthew sufficiently pleaded his presence. (See Doc. 77, p. 25; Doc. 81, p. 25.)
That allegation states: “[Matthew] personally witnessed acts of bullying and/or
harassment towards [Zachary] by each individual Student Defendant.” (Doc. 59, ¶

183.) Only one other new allegation in the second amended complaint even
concerns Matthew’s presence. It states: “[Matthew] and classmates of [Zachary]
and Student Defendants personally witnessed all Student Defendants verbally
harassing and bullying [Zachary] within RLASD schools and outside of schools.”

(Id. ¶ 39.) No new allegations reveal what outrageous conduct Matthew actually
witnessed and whether it was attributable to L.D. or D.M. These general
allegations without such factual development are plainly insufficient to survive a

Rule 12(b)(6) challenge. See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
557)) (“[A] formulaic recitation of the elements of a cause of action will not do.”).
Accordingly, Matthew’s IIED claims against L.D. and D.M. fail.3

Like the negligence claim, further amendment of this claim would be futile.
The court gave Matthew an opportunity to amend after identifying the claim’s
defects, yet those same defects are still present. Therefore, the court will dismiss

Matthew’s claim with prejudice.
3. The Estate adequately pleaded the IIED claim against L.D. and
D.M.
i. Extreme and outrageous conduct
L.D. contends that the Estate’s claim fails because Plaintiffs fail to allege
conduct specifically attributable to L.D. (Doc. 75, p. 17.) D.M. similarly faults
Plaintiffs for failing to allege conduct specifically attributable to D.M., Doc. 80, p.

21, except for one instance when D.M. allegedly stood outside Zachary’s home
yelling to Zachary that he was a “fucking faggot.” (Doc. 59, ¶ 42). These
arguments ignore important allegations in the second amended complaint.

In fact, Plaintiffs attribute specific conduct to both D.M. and L.D.
Specifically, Plaintiffs allege L.D. and D.M. “repeatedly called [Zachary]
‘faggot.’” (Id. ¶ 41.) Moreover, Plaintiffs allege that L.D. and D.M. “told

3 The court takes note that Plaintiffs newly allege that Matthew “personally saw harassing social
media posts” that directed Zachary “to kill himself.” (Doc. 59, ¶ 47.) Plaintiffs have not argued
that Matthew viewing harassing posts on social media constitutes physical presence for the
purpose of his IIED claim. Accordingly, the court will not analyze an argument not raised by
Plaintiffs.
[Zachary] to kill himself in person, over text messages, and/or other messaging
services and made similar posts on social media for [Zachary] and other classmates

to see.” (Id. ¶ 46.) L.D. and D.M. allegedly engaged in this conduct despite an
alleged awareness of Zachary’s suicidal thoughts. (See id. ¶ 48.) This is precisely
the conduct that the court previously determined was sufficiently outrageous to

survive a motion to dismiss. (Doc. 55, p. 19.) Given this previous ruling, the court
is not persuaded by L.D.’s and D.M.’s arguments on this element.
ii. Causation
D.M. argues that due to the lack of individualized allegations about his

conduct, “it cannot be determined that such actions caused Zachary severe
emotional distress.” (Doc. 80, pp. 21–22.) D.M.’s argument suffers from the same
flaw as his argument concerning the first element. As noted above, there are
specific allegations that D.M. repeatedly called Zachary slurs and told him to kill

himself. Moreover, Plaintiffs plausibly allege that D.M.’s conduct took place
approximately during the time period that Zachary was experiencing emotional
distress, i.e., when the students were in eighth and ninth grade. Given these

allegations, there can be little doubt that the causation element of the Estate’s claim
is adequately pleaded.
iii. Intent or substantial certainty
Finally, L.D. argues that Plaintiffs do not adequately allege that L.D.

intended to cause Zachary’s emotional distress or acted with knowledge that such
distress was substantially certain to occur. (Doc. 75, p. 17.) L.D. successfully
advanced a similar argument in the first round of motions to dismiss. (Doc. 55, pp.
23–24.) In that round, the court determined that Plaintiffs’ first amended

complaint failed to allege this intent element. (Id.) Plaintiffs’ second amended
complaint is different. It specifically alleges that the Student Defendants knew
Zachary was experiencing “mental distress and, in fact, attempted suicide in the

past.” (Doc. 59, ¶ 188.) It also alleges that Student Defendants acted with
knowledge that Zachary’s distress was substantially certain to occur. (Id. ¶ 189.)
These newly added allegations are supported by the other allegations in the second
amended complaint. For instance, L.D. allegedly was aware that Zachary was gay,

yet still repeatedly directed slurs at him. (See id. ¶¶ 37, 41.) So, too, L.D.
allegedly was aware that Zachary was suicidal, yet still told Zachary to kill himself
in person and online. (See id. ¶¶ 46, 48.) These allegations are enough to survive

L.D.’s and D.M.’s challenges. Thus, the court will deny L.D.’s and D.M.’s motion
to dismiss Count VII.
4. It is premature to dismiss the Estate’s claims for punitive
damages on its IIED claim.
T.F. seeks to dismiss only Plaintiffs’ claims for punitive damages. (Doc. 66,
pp. 16–17.) T.F. contends that the alleged conduct is not sufficiently outrageous to

justify punitive damages. (Id.) Plaintiffs retort, in part, that the propriety of
punitive damages in this matter requires factual determinations not appropriately
made at this stage of litigation. (See Doc. 72, p. 21.) Plaintiffs are correct.
The fact-intensive nature of awarding punitive damages makes resolution of

the issue on a motion to dismiss inappropriate. See Fiedler v. Stroudsburg Area
Sch. Dist., 427 F. Supp. 3d 539, 558 (M.D. Pa. 2019). Pennsylvania law is settled
that “[p]unitive damages may be awarded for conduct that is outrageous, because

of the defendant's evil motive or his reckless indifference to the rights of others.”
Hutchinson ex rel. Hutchinson v. Luddy, 870 A.2d 766, 770 (Pa. 2005) (quoting
Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984)). Whether conduct is outrageous
enough to support punitive damage is a factual issue for the trier of fact. See

Corbett v. Morgenstern, 934 F. Supp. 680, 685 (E.D. Pa. 1996); see also
Restatement (Second) of Torts § 908, cmt. d (“Whether to award punitive damages
and the determination of the amount are within the sound discretion of the trier of

fact . . . .”).
Plausible allegations of outrageous conduct that support an IIED claim can
similarly support claims for punitive damages. See, e.g., Seymour v. Life Care Ret.
Cmtys., Inc., No. 09-cv-0444, 2009 WL 2007056, at *2 (W.D. Pa. July 9, 2009);
Corbett, 934 F. Supp. at 685. Here, the court previously determined that T.F.’s

conduct may plausibly be considered sufficiently outrageous for the IIED claims.
(Doc. 55, p. 19.) T.F. allegedly told Zachary “to kill himself in person, over text
messages, and/or other messaging services and made similar posts on social media

for [Zachary] and other classmates to see.” (Doc. 59, ¶ 46.). T.F. made these
statements notwithstanding his alleged awareness of Zachary’s suicidal ideations.
(See id. ¶ 48.) Like the IIED claim, these allegations of outrageous conduct can
plausibly support Plaintiffs’ claims for punitive damages at this stage of litigation.

Accordingly, the court will deny T.F.’s motion to set aside Plaintiffs’ prayer for
punitive damages.
CONCLUSION
For the foregoing reasons, the court will dismiss with prejudice the state-

created danger claim (Counts I). The court will also dismiss with prejudice the
negligence claim against W.G., L.D., D.M., and T.F. (Count V); Matthew’s IIED
claim against W.G., L.D., and D.M. (Count VI); and the Estate’s IIED claim
against W.G. (Count VII). Finally, the court will deny T.F.’s motion to dismiss

Plaintiffs’ prayer for punitive damages. An implementing order will issue.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania

Dated: October 30, 2024

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667935. Public record. Not legal advice.