Appendix — Smith v. Sowers

Supreme Court brief1989

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IN THE SUPREME Coyrt™ aoe

OF THE UNITED STATES

No.

October Term, 1988

FREDERICK SMITH, in his individual and official

capacity as Principal Bradford Area High School;

RICHARD MILLER, in his individual and official

capacity as assistant principal of the Bradford

High School; and FREDERICK SHUEY, in his

individual and official capacity as Superintendent

of the Bradford Area School District

Petitioners

vs ;

JUDY GROVE SOWERS

Respondent

On Writ of Certiorari

to the United States Court of

Appeals for the Third Circuit ~

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Kenneth D. Chestek

Murphy, Taylor, Trout & Chestek, P.C.

518 State Street

Erie, Pennsylvania 16501

(814) 459-0234

James F. Israel

Israel and Wood, P.C.

Suite 501 Grant Building

Pittsburgh, Pa. 15219

(412) 391-1114

Attorneys for Petitioners

; 7 IF

TABLE OF CONTENTS

. Judgment Order

United States Court of Appeals for the Third Cir-

cuit, No. 88-3640, January 31, 1989 ....... 1

. Opinion and Order

United States District Court for the Western District

of Pennsylvania. .». 88-57 Erie, August 29, 1988 7

. Complaint

Sowers v. Bradford Area School District et al., No.

Geo? Eric, Pemrwety 17, 1908 .. 2. aes 47

. Motion to Dismiss

Sowers v. Bradford Area School District et al., No.

es Eee, PRONE Ba, NOD ese kes wre eee ee 63

. Excerpts of Transcript of Judy Grove Sowers .. 69

A. Judgment Order

United States Court of Appeals for the Third Circuit

No. 88-3640

January 31, 1989

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 88-3640

JUDY GROVE SOWERS

BRADFORD AREA SCHOOL DISTRICT;

FREDERICK SMITH, in his individual and

official capacity as Principal of the

Bradford Area High School; RICHARD MILLER,

in his individual and official capacity as

Assistant Principal of the Bradford Area High

School; and FREDERICK SHUEY, in his

individual and official capacity as Superintendent

of the Bradford Area School District,

Frederick Smith, Richard Miller and

Frederick Shuey,

Appellants

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 88-00057 E)

District Judge: Honorable Glenn E. Mencer

Submitted under Third Circuit Rule 12 (6)

January 26, 1989

<<.

BEFORE: GIBBONS, Chief Judge, and SEITZ

and GREENBERG, Circuit Judges

JUDGMENT ORDER

After consideration of all contentions raised by

appellants, it is

ADJUDGED and ORDERED that the order of the

district court of August 29, 1988 be and is hereby affirm-

ed.

The court notes that our jurisdiction is limited to

review of the order of the district court insofar as it

denied appellants’ motion to dismiss on the ground of

qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511,

530, 105 S.Ct. 2806, 2817-18 (1985). Thus, our judgment

should not be understood as affirming the order of the

district court to the extent that it denied appellants’ mo-

tions to dismiss on other grounds.

The court enters this order as it believes that Stone-

king v. Bradford Area School District, 856 F.2d 594 (3d

Cir. 1988), cert. petition pending, is essentially controlling

here.

Costs taxed against appellants.

BY THE COURT,

/s/ Morton I. Greenberg

ATTEST:

/s/ Sally Mrvos, Clerk

January 31, 1989

B. Opinion and Order

United States District Court

for the Western District of Pennsylvania

No. 88-57 Erie

August 29, 1988

694 F.Supp. 125, 1988 U.S.Dist. LEXIS 9613

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

694 F. Supp. 125; 1988 U.S. Dist. LEXIS 9613

JUDY GROVE SOWERS,

Plaintiff

BRADFORD AREA SCHOOL DISTRICT:

FREDERICK SMITH, in his individual and

official capacity as Principal of the

Bradford Area High School; RICHARD MILLER,

in his individual and official capacity as

Assistant Principal of the Bradford Area High

School; and FREDERICK SHUEY, in his

individual and official capacity as Superintendent

of the Bradford Area Schoo] District,

Defendants

Civil Action No. 88-57 Erie

August 29, 1988

GLEN E. MENCER, UNITED STATES DISTRICT

JUDGE

OPINION

This is a civil rights action brought under 42 U.S.C.

§ 1983 [§ 1983] by a former Bradford high school student,

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Judy Grove Sow :rs, against the Bradford Area School

District ["school district"], the school district’s superinten-

dent, Frederick Shuey, and the high school’s principal and

assistant principal, Frederick Smith and Richard Miller.

This is the third suit filed against these same defendants

by former female students. This case centers on a June

16, 1979 sexual assault upon the plaintiff, then a high

school student and member of the marching band by the

band director, Edward Wright.

Count I of the complaint is against the school district

and alleges that there existed a pernicious practice, custom

and/or policy, prior and subsequent to the assault by

Wright, of reckless indifference to and/or active conceal-

ment of instances of known or suspected sexual abuse of

students by teachers. It further alleges that this created a

climate wherein child abusers, such as Wright, could prey

upon female students with impunity. The complaint alleges

that the School District’s conduct was a proximate cause

of a deprivation of the plaintiff’s constitutional rights to

freedom from sexual abuse and free access to the courts

unimpeded by threats, coercion or intimidation, as well as

severe mental anguish, embarrassment, humiliation and

emotional distress.

Count II alleges that the individual defendants were

members of a conspiracy whose purpose was to conceal

from the public instances of known and/or suspected sexual

abuse of students by various teachers. The alleged overt

acts in furtherance of the conspiracy included, inter alia,

the alleged co-conspirators’ failure to respond

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Pay

a. ‘

appropriately to the complaints of sexual abuse and

defendant Smith’s keeping of a personal, secret file in his

desk drawer at home memorializing many of the

complaints against teachers, as well as the explicit or tacit

agreement of each of the alleged co-conspirators The

alleged proximate results of the conspiracy are the same

as those under Count I.

FACTS

At the heart of this suit is the allegation that on

June 16, 1979, Sowers,! a member of the school marching

band, was sexually molested by Edward Wright, the band

director. Wright had been hired by the school district in

1976, with responsibility to supervise band activities and

provide music lessons to students. Prior to 1976, Wright

had been the band director in the Jasper School District,

where the complaint alleges he "had attempted to sexually

molest and/or harass various female students." Complaint

at par. 20. The complaint alleges that the defendants had

been on notice of Wright’s proclivities with respect to

female students prior to the June, 1979 assault, although

the complaint does not detail how it was that they had

been put on such notice. Complaint at par. 26(c).

1 At the time of the assault, the plaintiff's name was Judy Grove.

This action is brought under the name Sowers, the plaintiff's married name.

We will refer to her by that name as well.

2 On November 6, 1986, Edward Wright plead guilty to a ten count

criminal indictment which included four counts of indecent assault.

eh.

Sower’s complaint asserts that Wright’s assault on

her was just one in a series of incidents in which the

defendants, although informed by female students of sexual

abuse by teachers, took no action except to conceal the

problem. The complaint alleges that prior to the June 16,

1979 assault, during the 1977-78 school year, a female

senior informed defendants Smith and Miller that a history

teacher (and coach of the girls’ tennis team) had made

improper sexual advances toward her in a classroom.

Complaint at par. 26(a). Smith and Miller told her not to

tell her parents about the incident, and no disciplinary

action was pursued against the faculty member. Jd. In 1978

and periodically thereafter, Smith, Miller and school district

superintendent Shuey were alleged to have received other

complaints of sexually abusive language and/or improper

sexual advances by a shop teacher. Complaint at par.

26(b). The defendants allegedly pursued no disciplinary

action against the shop teacher. Id.

Edward Wright’s sexual assault on Judy Grove

Sower’s occurred on June 16, 1979. According to her

deposition, she went to Wright’s house to obtain a tape of

marching music. Sowers was a section leader and had to

learn the music for summer band practice. She was going

away the next day for two weeks, therefore she had to

obtain the tape so she could learn the music prior to the

commencement of summer band practice. Sowers

Deposition at 16. She reported the assault to Gene

Dillard, a youth counselor visiting the school at the invita-

tion of the school administration. Complaint at par. 13.

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LR LIN LETRA

Dillard informed Smith and Miller, as well as a school

guidance counselor, of the sexual abuse and harassment by

Wright. He told them he considered her reports to be

truthful. Jd. at par. 14. Soon thereafter, Sowers met with

Smith and Miller and personally informed them of the

sexual assault by Wright. Other meetings were held during

the fall and early winter between Sowers, Smith and

Miller. Jd. at par. 15. The plaintiff alleges that Smith and

Miller actively discouraged her from pursuing her remedies

in court against Wright "through intimidation, threats and

coercion," and indicated that they did not believe her. Jd.

at par. 16. In January 1980, Smith told Sowers that if she

wanted to remain in the school marching band she would

have to publicly apologize for having accused Wright of

the sexual assault. Jd. at par. 17. When Smith had assem-

bled the band members, Sowers did not apologize, instead

leaving the band room "in an extremely emotional state."

Id. at par. 18.

The plaintiff’s complaint goes on to list numerous

instances where female students reported subsequent

episodes of sexual abuse by Wright and other male teach-

ers at the Bradford high school to the defendants. Jd. at

pars. 26(d) - (1). In none of these cases did the defendants

pursue disciplinary action against the molesting male

teachers beyond issuing an occasional "no one-on-one"

directive. For example, in late September or early of 1984,

a female band member told her guidance counselor that

Wright had attempted to sexually molest her in a vehicle.

Id. at par. 26(i). This student also told the counselor that

o} 3

Wright was currently molesting another student and had

molested yet another student who had graduated. Jd. The

accusation was relayed to defendants Smith and Shuey. On

December 15, 1984, Smith met with Wright and issued

another "no one-on-one" directive, but informed Wright

that no one accused him of any wrongdoing." Jd. at par.

26(j). The plaintiff also alleges that Smith maintained a

personal, secret file in his desk drawer at home, memorial-

izing many of the complaints. Jd. at par. 37. The school

administration’s alleged toleration of Wright’s abuse of

female students came to an end in March of 1986 when

fresh allegations brought about meetings between school

administrators and parents of children who had been

assaulted by Wright. Wright was suspended as of March

10, 1986, and later resigned.

DISCUSSION

I. Defendants’ Motion to Strike Portions of the Complaint

The defendants’ move to strike portions of para-

graphs 25 and 26 of the complaint, as well as all of para-

graph 20. They assert that paragraphs 25 and 26 “contain

immaterial, impertinent and scandalous matters, consisting

of allegations of conduct involving teachers other than

Plaintiff, students other than Plaintiff, and conduct subse-

quent to the alleged injury to Plaintiff, all of which has no

bearing in any way on the alleged injury to this Plaintiff."

Defendants Motion to Dismiss and/or Strike, p. 2. Para-

graph 25 mentions no teachers or students at all, thus we

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EE PT ae

do not understand the defendants’ reason for striking it,

and we will not do so. Paragraph 26 indeed refers to

teachers other than Wright, and students other than the

plaintiff (albeit these students are referred to by initials,

not by name). Because the plaintiff’s case depends upon

establishing a policy or custom which was adhered to in

response to numerous allegations of child abuse by various

teachers at the school district, such allegations are relevant

to her case. While we agree with the defendants that the

conduct described in these allegations could be viewed as

scandalous, we do not agree that they are immaterial or

impertinent, and we will deny their motion to strike.

I]. Defendants’ Motion to Dismiss the Complaint

The defendants offer a number of grounds for

dismissal of the Sowers complaint against them, allegations

the defendants scorn as “impertinent "3 Defendants’ Brief

in Support at 2; see also Defendants’ Motion to Dismiss

and/or Strike, p. 2. Defendants argue that the complaint

fails to state a claim under § 1983 and that the action is

barred by the two-year statute of limitations.

In order to properly decide the motion to dismiss, it

is necessary to analyze the required elements of a cause

of action under § 1983, as well as the questions surround-

3 It is unclear whether the defendants intend the word “impertinent” in

the sense of “presumptuous, rude, uncivil,” or “not pertinent, irrelevant.”

See Random House Collegiate Dictionary, revised ed. 1980, p. 667. If true,

the plaintiff's allegations are anything but impertinent, in either sense of the

word.

ing the limitations period. An analysis of the most salient

issues begins with the question of whether the plaintiff's

complaint alleges a deprivation of a constitutional nght

"under color of law. In cases such as this where a plaintiff

alleges that the defendants’ policy or custom resulted in

the failure to carry out an alleged duty to protect the

plaintiff, a court must find a "special relationship" between

the plaintiff and the state body or official creating a duty

to protect. In addition, where a claim is based upon a

failure to act by the defendants, a court must consider

whether that failure to act: (I) was a substantial factor

leading to a violation of a constitutionally protected

liberty or property interest; and (2) displayed "deliberate

indifference” or "gross negligence" with regard to that

violation.

A. Standard for Deciding a Motion to Dismiss

A motion to dismiss tests the formal sufficiency of

the statement of the claim for relief, addressing itself

solely to the failure of the complaint to state a claim for

relief. Wright & Miller, Federal Practice And Procedure §

1356 (1987 Supp.). To merit dismissal, the plaintiff's

pleading must fail to meet the liberal requirements for

pleading a claim set forth in Rule 8(a), which calls for “a

short and plain statement of the claim showing that the

pleader is entitled to relief." Id.; Fed. R. Civ. P. 8(b). For

purposes of the motion to dismiss, the complaint is con-

strued in the light most favorable to the plaintiff and its

allegations taken as true. Jd. at § 1357. In general, a court

has broad discretion in ruling on a motion to dismiss, but

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dismissal should only be granted with care in order to

avoid improperly denying plaintiff the opportunity to have

her claim adjudicated on the merits. Jd. "The issue is not

whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support his

claims." Estate of Bailey By Oare v. County of York, 768

F.2d 503 (3d Cir. 1985) (quoting Scheuer v. Rhodes, 416

U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)).

B. Deprivation of a Constitutional Right "Under

Color of State Law"

To state a claim under § 1983 an individual must

allege facts constituting a deprivation of a constitutional

right under color of state law. An official’s actions are not

removed from under color of state law merely because the

official acted beyond the scope of the authority granted

by state law. Misuse of power, possessed by virtue of state

law and made possible only because the wrongdoer is

clothed with the authority of state law, is taken “under

color of" state law. United States v. Classic, 313 U.S. 299,

326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); Doe “A"

v. Special School Dist. of St. Louis Co., 637 F. Supp. 1138,

1142 (E.D. Mo. 1986); accord Monroe v. Pape, 365 U.S.

167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The plaintiff’s

complaint alleges that there existed a practice, custom

and/or policy which caused the deprivation of her constitu-

tional rights. "[I]t is when execution of a government’s

policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent

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official policy, inflicts the injury that the government as an

entity is responsible under § 1983." Monell v. New York

City Dept. of Soc. Serv., 436 U.S. 658, 694, 98 S.Ct. 2018,

2037, 56 L.Ed.2d 611, 638 (1978); see also Estate of Bailey

by Oare v. County of York, 768 F.2d 503, 506 (3d Cir.

1985). "In an appropriate case, even in the absence of

formal agency conduct, an ‘official policy’ may be inferred

‘from informal acts or omissions of supervisory municipal

officials.” Estate of Bailey by Oare, 768 F.2d at 506 (quo-

ting Turpin v. Mailet, 619 F.2d 196, 200 (2d Cir.), cert.

denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L-Ed.2d 475

(1980)). By these standards, we believe the complaint

sufficiently alleges that the defendants caused a depriva-

tion of her constitutional rights "under color of state law."4

C. Special Relationship

In § 1983 actions such as this one where a plaintiff

asserts a right of protection, courts require that there exist

a "special relationship" between the plaintiff and defendant

which would create a duty to protect. See Jensen v. Con-

rad, 747 F.2d 185, 194-95 (4th Cir. 1984), cert. denied, 470

U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985). In

Bowers v. DeVito, &#5 F.2d 616 (7th Cir. 1982), the Se-

venth Circuit refused to hold the state liable for a murder

committed by a schizophrenic (with a history of criminal

4 Public officials are liable under § 1983 if the official causes an individual

to be deprived of a constitutional right. Baker v. McCollon, 443 U.S. 137,

142, 99 S.Ct. 2689, 2693, 61 L.Fd.2d 433, 440 (1979).

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Fe RR oF Re

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violence) one year after being released from a state

mental hospital. Judge Posner stated “there is no constitu-

tional right to be protected by the state against being

murdered by criminals or madmen." Bowers, 686 F.2d at

618. Judge Posner, a jurist renowned as a theorist in tort

law, acknowledged that where the state is responsible for

placing a person in a position of danger or potential harm,

the state would owe an affirmative duty obligating the

State to protect that person. Judge Posner wrote:

If the state puts a man in a position of danger

from private persons and then fails to protect

him, it will not be heard to say that its role

was merely passive; it is as much an active tort

feasor as if it had thrown him into a snake pit.

It is on this theory that state prison personnel

are sometimes held liable under section 1983

for the violence of one prison inmate against

another.

Bowers, 818 F.2d at 618. The Fourth Circuit later noted

that the Bowers finding that the general public has no

constitutional right to protection, and the state no duty

to protect, from criminals and madmen, was expressly

qualified by its acknowledgment that "such a right and

corollary duty may arise out of special custodial or other

relationships created or assumed by the state in respect of

particular persons.” Fox v. Curtis, 712 F.2d 84, 88 (4th Cir.

1983) [emphasis added]. Courts have found the "special

relationship" requirement, the nexus between a plaintiff

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and the state necessary to an action under § 1983, to be

a standard that is elusive and difficult to define.

Estate of Bailey by Oare v. County of York involved

a county children’s services agency’s involvement in the

tragic abuse and death of a five-year-old girl. 768 F.2d 503

(3d Cir. 1985). The girl lived with her mother and her

mother’s boyfriend when relatives noticed severe bruises

and other evidence of abuse on the child’s body. When the

relatives contacted the police and the child services agency,

the agency had the girl examined by a physician. The

physician advised that the boyfriend be denied access to

the child, and that the girl should be taken from the

mother if necessary to deny the boyfriend access. The next

day the county agency returned the child to the mother’s

custody, undertaking no independent investigation to

determine what access the boyfriend might have. A month

later the girl died from physical injuries inflicted on her by

the boyfriend and mother. Jd. 768 F.2d at 505. The Third

Circuit found there to be a "special relationship" between

the little girl and the childrens services agency and the

county, noting that the plaintiff alleged that the defendants

had evidence of previous abuse, was aware of the source

of abuse and inadequately investigated the danger. The

circuit court therefore vacated and remanded the district

court’s granting of the defendants’ motion to dismiss. Jd.

at 510. "When the agency knows that a child has been

beaten, ‘[t]his strengthens the argument that some sort of

special relationship has been established.” Jd. at 510-11

(quoting Jensen v. Conrad, 747 F.2d 185, 195 n. 11 (4th

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iw yy

Cir. 1984), cert. denied, 47() U.S. 1052, 105 S.Ct. 1754, 84

L.Ed.2d 818 (1985) (suggests special relationship where

state agency failed to intervene to prevent beatings of

children by their guardians)).

The Third Circuit’s "special relationship" analysis in

Estate of Bailey by Oare highlighted two cases as examples

of instances where a “duty of protection has been found

owing by the state and local entities to persons who were

not in custody.*-/d. at 510. The first was White v. Roch-

ford, 592 F.2d 381 (7th Cir. 1979), in which the Seventh

Circuit reversed the dismissal of a complaint alleging that

police who had arrested the driver of a car subjected the

three passenger children to a health-endangering situation

by abandoning them. That court had reasoned that "the

police could not avoid knowing that, absent their assis-

tance, the three children would be subjected to cold wea-

ther and danger from traffic. This indifference in the face

of known dangers certainly must constitute gross negli-

gence." Id., 592 F.2d at 385. The second example given

was Thurman v. City of Torrington, 595 F. Supp. 1521 (D.

Conn. 1984), which involved an allegation local police

systematically failed to adequately protect women abused

or assaulted by a spouse or boy friend. The Thurman court

stated, "City officials and police officers are under an

affirmative duty to preserve law and order, and to protect

the personal safety of persons in the community." Jd., 595

F. Supp. at 1527. This duty was held to require officials

having notice of the possibility of attacks on women in

domestic relationships “to take reasonable measures to

M1.

—

protect the personal safety of such persons in the commu-

nity." Id.

There is a significant, although not dispositive,

distinction between the facts of Estate of Bailey by Oare,

White and Thurman on the one hand, and the present

case. In those cases, the plaintiff toward whom a special

relationship and duty existed had been individuals whose

specific need for state protection were identifiable prior to

their injury. In the present case the vulnerability to sexual

abuse due to the defendants’ customs, practices and/or

policies was shared by all the female students at the high

school. Even if the plaintiff’s allegation that the defendants

had prior notice of Wright’s propensity for sexual abuse is

taken as true, the potentially endangered group would

include, at the least, all females belonging to the marching

band.°

A number of cases have found a "special relation-

ship" to exist when an identifiable group, rather than a

specific individual, was endangered. In PL.C. v. Housing

Authority of County of Warren, a tenant in a public hous-

ing project brought a civil rights action after she was raped

by a county housing authority employee who entered her

-apariment using a housing authority key. 588 F. Supp. 961

(W.D. Pa. 1984). Her complaint alleged that the housing

authority knew or should have known of the assailant’s

prior convictions for rape and his alcoholism when they

5 The Court has no information regarding the number of females in the

Bradford marching band at that time.

hired him as a maintenance man. /d., 588 F. Supp. at 962.

In PL.C., as in the case at bar, the danger posed by the

housing authority’s conduct (or lack thereof) was shared

by the plaintiff as a member of an identifiable group of

potential victims, i.e., the female residents of the housing

project. Judge Weber found "that the authority and its

officials stood inn a special relationship to this particular

plaintiff." Id., 588 F. Supp. at 965.° |

Similarly, in Beck v. Kansas Univ. Psychiatry Foun-

dation, 580 F. Supp. 527 (D. Kansas 1984), two individuals

were shot to death at the University of Kansas Medical

Center emergency room by a released prisoner with a

known propensity for violence against the medical center,

its staff, patients and visitors. Jd., 580 F. Supp. at 531.

Denying a motion to dismiss by the defendant Kansas

Adult Authority, the state agency which released the

assailant despite knowledge of his potential for violence at

the medical center, the court found that the Adult Author-

ity had a duty to take into account "the best interests of

society." The court concluded that "[c]ertainly that duty

includes taking into account the special danger which the

inmate may have to an identifiable group or individual."

which a woman raped by an unknown assailant brought a § 1983 action

against the city, the mayor, the p»lice chief and a member of the police de-

partment alleging that the defenuants had deliberately suppressed informa-

tion of prior rapes in a certain area of the city to avoid adverse publicity.

The Eleventh Circuit found there to be no "special relationship" because

the defendants had not intentionally singied her out to be denied protection

from a rapist and there was no al legation that the defendants knew of the

plaintiff before the rape occurred.

Id., 580 F. Supp. at 534. Thus, a special relationship was

found between the state authority and an identifiable

group, namely the staff, patients and visitors of the medi-

cal center. Thus, the Beck court concluded that the plain-

tiffs’ complaint alleged a "special relationship" between the

Kansas Adult Authority and the plaintiffs.

In the present case, the question is whether the

defendants were in a "special relationship" with the endan-

gered “identifiable group,"-female students (or band mem-

bers) at the Bradford high school. We find that the

defendants owed a duty to protect its students from sexual

abuse by its teachers. We think this duty is at least as

clear as those owed to the tenants in RL.C., the abused

women in Thurman, or the visitors to the medical center

in Beck. The people and the legislature of Pennsylvania

trust their children to the care and supervision of school

officials, and grant those officials in loco parentis authority

over those children while they attend school.’ In addition,

school districts are statutorily authorized to fire teachers

for "immorality," which has been held to include uninvited

7 The Pennsylvania Public School Code states that:

Every teacher, vice principal and principal in the public

schools shall have the right to exercise the same authority as

to conduct and behavior over the pupils attending his school,

during the time they are in attendance, including the time

required in going to and from their homes, as the parents,

guardians or persons in parental relation to such pupils may

exercise over them.

24 PS. § 13-1317 (1988 PP). Pe

advances by teachers toward students. 24 PS. § 11-1122;

see Keating v. Bd. of School Directors of Riverside School

District, 513 A.2d 547, 99 Pa.Cmwith. 337 (1986), app.

denied, 522 A.2d 51, 514 Pa. 626 (1987). As we stated in

Stoneking v. Bradford Area School District, “abuse of this

type is not tolerated when the victim is a prison inmate or

a patient in a state hospital. Clearly then, the constitution

must offer school children similar protections." 667 F.

Supp. at 1095 [citations omitted]. We find that a "special

relationship," with an accompanying duty to protect, exists

between a student and her school district, school district

superintendent, principal and vice principal.

The defendants raise the factual distinction that this

assault took place off school grounds at the teacher’s

home, at the beginning of summer vacation. The defend-

ants argue that "in no sense of the word could any ‘special

relationship’ exist at the time of this alleged assault."

Defendants’ Brief in Support, p. 17 n. 7. Under the facts

of this case, we do not agree. The increased threat to

female students created by the defendants’ alleged tole-

rance for sexual abuse was not the sort of danger that

disappeared when those students packed up their instru-

ments and walked out of the band room. Because Wright

conducted marching band practices during the summer

months, his opportunity to abuse his female band students,

opportunity he possessed by virtue of his position as a

teacher and director of the band, did not disappear when

the school bell sounded the end of day or the beginning

of vacation-time. Presumably it would have made little

24.

difference if the maintenance man in PL.C. v. Housing

Authority of the County of Warren had been off-duty, or

on vacation, when he used his housing authority key to

enter the rape victim’s apartment. Similarly, it is irrelevant

to this Court in determining the existence of a "special

relationship," whether Sowers was assaulted while she was

picking up a marching band tape for band practice to be

held during the school year or during the summer months.

The timing and circumstances of the assault may or may

not be relevant to the factual determination of causation

of Sowers’ injury, but, as we will discuss later in this deci-

sion, the question of proximate cause requires factual

development and is therefore inappropriate to decide on

a motion to dismiss.

D. Requirements for Liability Under § 1983 For A

Failure To Act

The defendants are alleged to have fostered a pract-

ice, custom and/or policy of reckless indifference and/or

active concealment of instances of known or suspected

sexual abuse. The complaint alleges that this practice,

custom and/or policy was the result of both overt activity

and failures to act on the part of the defendants. Govern-

ment officials may be held liable under § 1983 for a

failure to do what is required as well as for overt activity

which is unlawful and harmful. See Estelle v. Gamble, 429

U.S. 97, 97 S.Ct. 285, 50 L-Ed.2d 251 (1976); Doe v. New

York City Dept. of Social Services, 649 F.2d 134, 141 (2d

Cir. 1981) [Doe I]; Duchesne v. Sugarman, 566 F.2d 817,

-26-

822 (2d Cir. 1977) ("where conduct of the supervisory

authority is directly related to a denial of a constitutional

right, it is not to be distinguished as a matter of causation,

upon "whether it was action or inaction"). For a § 1983

cause of action to arise where an official is charged with

failing to exercise an affirmative duty, the failure to act

must have been a substantial factor leading to the viola-

tion of a constitutionally protected liberty or property inter-

est. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d

561 (1976). The official having the responsibility to act

must also have displayed "deliberate indifference" or "gross

negligence." Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert.

denied sub nom. Turpin v. West Haven, 449 U.S. 1016, 101

S.Ct. 577, 66 L.Ed.2d 475 (1980) ("deliberate indifference"

standard); Doe v. New York City Dept. of Social Services,

709 F.2d 782, 789-790 (2d Cir. 1983) [Doe II], cert. denied

sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864, 104

S.Ct. 196, 78 L.Ed.2d 171 (1983) ("gross negligence"

standard) (citing Youngberg v. Romeo, 457 U.S. 307, __,

102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982)). As our

reasoning below will explain, we believe that these two

requirements, an alleged violation of a protected liberty

interest and an alleged display of "deliberate indifference"

Or "gross negligence," are met in the _plaintiff’s

complaint.

1. Violation of a Liberty Interest: Substantive

Due Process

The first of the two requirements for a § 1983 claim

for a failure to act is that the failure to act must have

at.

been a substantial factor leading to the violation of a

constitutionally protected liberty or property interest. As to

whether the plaintiff has alleged that the defendants’

failures to act amounted to a substantial factor leading to

the constitutional violation, we believe the complaint does

so allege. Furthermore, as we will explain later in the

statute of limitations section of this opinion, the question

of causation is not amenable to determination on the

basis of pleadings alone. We will therefore move on to the

question of whether the plaintiff has properly alleged a

constitutionally protected liberty interest.

The liberty interest which the plaintiff alleges was

deprived her was a substantive due process right to be free

from sexual abuse. Substantive due process rights are

significantly different from procedural due process rights.

Procedural due process involves expectations created by

state law. As to these rights, the state may take them

away by affording pre-deprivation hearings, post-depriva-

tion hearings or other safeguards. Substantive due process,

on the other hand, is concerned with rights such as those

listed in the Bill of Rights and those rights held to be so

fundamental that a state may not take them away regard-

less of the fairness of the procedures used to do so. Da-

niels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 663, 88

L.Ed.2d 662, 668 (1986). Justice Frankfurter noted that

the scope of due process protection is not subject to

precise definition:

Due process of law is a summarized constitu-

tional guarantee of respect for those personal

-28-

™ a rN

REY AG ay RESTA a ee 02) 358 hae

immunities which, as Mr. Justice Cardozo twice

wrote for the Court, are so rooted in the

traditions and conscience of our people as to

be ranked as fundamental, Snyder v. Massachu-

setts, 291 U.S. 97, 105 [54 S.Ct. 330, 332, 78

L.Ed.2d 674], or are implicit in the concept of

ordered liberty. Palko v. Connecticut, 302 US.

319, 325 [58 S.Ct. 149, 152, 82 L.Ed.2d 288].

Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208,

96 L.Ed.2d 183 (1952). Due process "is a rational con-

tinuum which, broadly speaking, includes a freedom from

all substantial arbitrary impositions and purposeless re-

straints." Poe v. Ullman, 367 U.S. 497, 543, 81 S.Ct. 1752,

1777, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting). "The

content of substantive due process must be determined in

each case through disinterested inquiry and by judgment

not ad hoc and episodic but duly mindful of reconciling the

needs of both continuity and of change in a progressive

society." Doe "A" v. Special School District of St. Louis

County, 637 F. Supp. 1138, 1144 (E.D. Mo. 1986) (citing

Rochin v. California, 342 U.S. at 172, 72 S.Ct. at 209.)

Courts have recognized that substantive due process

includes the right to be free from state intrusions into

personal privacy and bodily security.® Illustrative of th

8 See, e.g, Ingraham v. Wright, 430 U.S. 651, 673-74, 97 S.Ci. 1401,

__,» 51 LEd2d 711, 731-732 (1977) (corporal punishment of students by

teachers, subsitantrve due process right to personal security); Rochin v.

California, 342 US. 165, 72 S.Ct. 205, 96 L-Ed. 183 (1952) (forcible use of

stomach pump by police); Taylor By And Through Walker v. Ledbetter, 818

-29.

substantive due process rights of students is a recent

Missouri case, Doe "A" v. Special School District of St.

Louis Co., 637 F. Supp. 1138 (E.D. Mo. 1986). That action

concerned nine handicapped children who had repeatedly

been beaten and sexually abused over the course of a year

and a half by a school bus driver while they were pas-

sengers aboard his bus. Claims were brought under § 1983

against the bus driver, the school district and twelve in-

dividual school administrators. Jd. at 1141. Despite receiv-

ing complaints from parents, teachers and other school

employees, it was alleged that the school district and

school administrators: (1) failed to investigate the com-

plaints; (2) concealed the bus driver’s actions by discourag-

ing investigation; (3) failed to develop a policy to provide

training for the investigation of complaints and to screen

employees for their propensity to abuse children; (4) failed

F.2d 791 (11th Cir. 1987) (foster child suit against state and county officials

for injuries received in custody of foster parents); Davis v. Forrest, 768 F.2d

257, 258 (8th Cir. 1985) (two police officers’ unnecessary beating plaintiff

with flashlights); Doe v. New York City Dept. of Social Services, 649 F.2d

134, 141-145 (2d Cir. 1981) (municipality liable under § 1983 for deliberate

indifference to sexual abuse of foster child by foster parent); Hall v. Tawney,

621 F.2d 607, 613 (4th Cir. 1980) (severe corporal punishment inflicted

upon grade school student by teacher violated student’s substantive due

process rights); White v. Rochford, 592 F.2d 381 (7th Cir. 1979) (police

arrest driver of car, abandoning three passenger children); Johnson v. Glick,

481 F.2d 1028 (2d Cir.), cert. denied 414 U.S. 1033, 94 S.Ct. 462, 38

L.Ed.2d 324 (1973) (unprovoked beating of pretrial detainee by guards);

Jenkins v. Averitt, 424 F.2d 1228, 1231-32 (4th Cir. 1970) (reckless pistol

shooting of suspect by police); Doe "A" v. Special School District of St. Louis

County, 637 F. Supp. 1138 (E.D. Mo. 1986) (handicapped children beaten

and sexually abused by school bus driver); Thurman v. City of Torrington,

595 F. Supp. 1521 (D. Conn. 1984) (police with notice of possibility of

attacks on women in domestic relationships).

-30-

- care B Ot aca

to report the bus driver’s conduct to law enforcement and

child protective agencies despite their statutory obligations

to do so. Id. at 1142.

When the defendants in Doe "A" moved to dismiss

the § 1983 claims for failure to allege conduct arising

under color of state law and failure to allege actions which

rise to the level of constitutional violations, the district

court denied the motions. The court first found that the

bus driver, as a school district employee, acted under color

of state law. Jd. at 1143. After examining the legal deve-

lopment of substantive due process rights, the court stated

that "this Court does not doubt that the constitutional

rights of children to be free from harm is commensurate

with the rights of adults in state custody." Jd. at 1145. The

court concluded that:

The acts of abuse alleged by plaintiffs state a

substantive due process claim. The acts intrude

upon the personal privacy and bodily integrity

of these children. The acts intrude in ways

more personal and private than a jailhouse

beating and in ways which will surely leave

psychological scars long after physical healing

is complete. . . . The alleged acts of [the bus

driver] and the alleged tolerance of these acts

by [the school district] and the individual de-

fendants pass beyond the pale of common law

torts. They shock the conscience of this

Court.

Doe "A", 637 F. Supp. at 1145.

Sa.

In Hall v. Tawney, a case involving the infliction of

severe corporal punishment on grade school students, the

Fourth Circuit explained the substantive due process right

at issue as:

the right to be free of state intrusions into the

realms of personal privacy and bodily security

through means so brutal, demeaning, and

harmful as literally to shock the conscience of

a court. The existence of this right to ultimate

bodily security - the most fundamental aspect

of personal privacy - is unmistakably establish-

ed in our constitutional decisions as an at-

tribute of the ordered liberty that is the con-

cern of substantive due process. Numerous

cases in a variety of contexts recognize it as a

last line of defense against those literally

outrageous abuses of official power whose very

variety makes formulation of a more precise

standard impossible.

Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980) (cit-

ations omitted). The court explained that it "simply do not

see how" it could fail to uphold the right in "public school

children under the disciplinary control of public school

teachers" when the right was upheld in persons charged

with or suspected of crime and in the custody of police

officers. Id.

We think it apparent that the plaintiff’s complaint

alleges a deprivation of Sowers’ right to be free from

«92.

State intrusions, in this case by her teacher, into her

personal privacy and bodily security. Because such a right

is embraced within the scope of substantive due process,

this satisfies the requirement that her complaint allege a

violation of a constitutionally protected liberty interest.

2. “Deliberate Indifference" or "Gross Negli-

gence" by Defendants ~

The second requirement for a § 1983 claim for a

failure to act is that the official having the responsibility

to act must display "deliberate indifference" or "gross negli-

gence." The question is whether this requirement is met by

the plaintiff’s al legation of "reckless indifference" by the

defendants. Traditionally the term gross negligence" has

been held equivalent to the words "reckless and wanton,"

see, e.g., Jones v. Commonwealth, 213 Ky. 356, 281 S.W.

164, 167 (1926), and the Supreme Court in Estelle v.

Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976),

has characterized deliberate indifference as "the wanton

infliction of unnecessary pain.” 429 U.S. at 105, 97 S.Ct.

at 291. Furthermore, in Estate of Bailey by Oare, the Third

Circuit described the burden of proof on the plaintiffs in

that § 1983 action as "[permitting] the fact finder to infer

deliberate or reckless indifference or unconcern or callous

disregard for" the deceased plaintiff's safety. Estate of

Bailey by Oare, 768 F.2d 503, 508 (3d Cir. 1985) [emphasis

added]; see also Commonwealth Bank & Trust Co., NA.

v. Russell, 825 F.2d 12, 17 (3d Cir. 1987). We therefore

conclude that the plaintiff’s allegation of “reckless indif-

-33-

ference" properly states a claim against the defendants

under § 1983.

Because the plaintiff's complaint properly alleges a

claim under § 1983, we will deny the defendants’ motion

to dismiss the complaint for failure to state a claim.

III. Statute of Limitations and Discovery Rule for Tolling

In Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938,

85 L.Ed.2d 254 (1985), the Supreme Court ruled that the

statute of limitations for § 1983 actions is the statute of

limitations for the relevant state’s personal injury statute

Since this § 1983 action arose within the Commonwealth,

we must apply the two-year statute of limitations set forth

in 42 Pa.C.S.A. § 5524(2). See Sullivan v. City of Pittsburgh

Pa., 811 F.2d 171 (3d Cir.), cert. denied, 56 U.S.L.W. 3244,

108 S.Ct. 148, 98 L.Ed.2d 104 (1987); Stoneking v. Brad-

ford Area School District, 667 F. Supp. 1088, 1091 (W.D.

Pa. i987).

Federal courts have recognized a "discovery rule" for

setting the date from which the two-year statute of limita-

tion would begin to run. Courts distinguish between the

date when a cause of action accrues and the tolling of a

statute of limitations.? State law governs the tolling of the

9 A cause of action “accrues” when a suit may be maintained thereon,

whenever one person may sue another. Black's Law Dictionary (rev. 4th ed.,

1968) p. 37. The tolling of a statute of limitations essentially “stops the clock”

with regard to the limitation. This includes the delay of the initial running of

the limitations period, interruption of the running of the limitations period,

or timely filing of the action within the statutory limitations period.

-34-

statute, unless state law is inconsistent with the purposes

behind the civil rights acts. Board of Regents v. Tomanio,

446 U.S. 478, 484-86, 100 S.Ct. 1790, 1795-96, 64 L.Ed.2d

440 (1980) (§ 1983 claim).!° The accrual of a civil rights

action, however, is a question of federal law. Dreary v.

Three Un-named Police Officers, 746 F.2d 185, 197 n. 16

(3d Cir. 1984); Sandutch v. Muroski, 684 F.2d 252, 254 (3d

Cir. 1982) (per curium) (citing Cox v. Stanton, 529 F.2d

47, 50 (4th Cir. 1975)); Plain v. Flicker, 645 F. Supp. 898,

901 (D. N.J. 1986) (claims under 42 U.S.C. §§ 1983,

1985). We consider the accrual of the cause of action to

be the threshold statute of limitations issue because any

state tolling doctrine would not come into play until the

cause of action had accrued. Under federal law, a § 1983

claim accrues when the plaintiff knows or has reason to

know of the injury that constitutes the basis of her action.

Id. Federal courts have fashioned a “discovery rule" which

requires that a cause of action accrues when the plaintiff

becomes aware, or should have become aware, of both

the fact of injury and its causal connection to the defen-

dant, although the plaintiff need not know that the defen-

dant’s conduct is tortious or unlawful.!! United States v.

10 See also Wilson v. Garcia, 471 U.S. 261, 269 & n. 17, 105 S.Ct. 1938,

& n. 17, 85 L.Ed.2d 254, 262 & n. 17; Johnson v. Railway Express

Agency, Inc., 421, U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

‘1 As this Court noted in Stoneking v. Bradford Area School District,

667 F. Supp. 1088 (W.D. Pa. 1987), Pennsytvania courts have also recog-

nized a “discovery rule” exception to its statute of limitations. Jd. at 1092 &

n. 5. See Lewey v. H.C. Frick Coke Co., 166 Pa. 535, 547, 31 A. 261, 263

(1895); Bowser v. Guttendorf, 1988 Pa. Super. LEXIS 1424, 541 A2d 377,

-$5-

Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259

(1979) (discovery rule under Federal Tort Claims Act); see

also Plain v. Flicker, 645 F. Supp. 898, 901 (D. N.J. 1986)

(applying Kubrick rule to § 1983 action); Hauptmann v.

Wilentz, 570 F. Supp. 351, 396 (D. N.J. 1983), affd 770

F.2d 1070 (3d Cir.), cert. denied 474 U.S. 1103, 106 S.Ct.

807, 88 L.Ed.2d 922 (1986) (also iio Kubrick rule to

§ 1983 claim).!2

The Kubrick rule’s distinction between a plaintiff’s

knowledge of her injury and knowledge of the defendant’s

causal connection to the injury is illustrated by the Fifth

Circuit’s decision in Lavellee v. Listi, 611 F.2d 1129 (Sth

Cir. 1980). In Lavellee, the plaintiff alleged that on Sep-

tember 8, 1976 he had been arrested and then transport-

380 (1288): Anthony v. Koppers Co., 284 Pa.Super. 81, 425 A.2d 428 (1980),

rev'd on other grds., 496 Pa. 119, 436 A2d 181 (1981) (“as the rule has

developed it has become clear that its basis is not concealment by the

defendani but rather the ability of the plaintiff to discover . . . [her] injury or

its cause.” Jd. at 95, 425 A.2d at 436); see also Burnside v. Abbot Laboraton-

es, 351 Pa. Super. 264, 292, 505 A.2d 973, 988 (1985) ("[W]here the issue

invoives a factual determination regarding what is a reasonable period of time

for a plaintiff to discover [her] injury and its cause the determination is for

the jury.”).

12 While it is not necessary as yet for us to decide whether the defen-

dants actively concealed their alleged unlawful conduct, as the complaint

alleges, active concealment by a defendant tolls the running of the statute

until a plaintiff discovers the cause of action or discovers facts that reasonably

put her on notice of it. See Holmberg v. Armbrecht, 327 U.S. 392, 397, 66

S.Ct. 582, 585, 90 L.Ed.2d 743 (1946) (the equitable tolling doctrine “is read

into every federal statute of limitations."); Plain v. Flicker, 645 F. Supp. at

902 (§ 1983 claim); Cohen v. McAllister, 673 F. Supp. 733, 739-740 (WD.

Pa. 1987). See also Redenz by Redenz v. Rosenberg, 360 Pa.Super. 430, 520

A.2d 883 (1987) (if tortfeasor actively conceals, statute of limitation tolled

until injured person can overcome concealment).

ed to a hospital where he was forced by several defendant

deputy sheriffs to undergo an extraction of his spinal fluid,

a procedure performed by defendant medical personnel.

He was then liocked in a bare, unsanitary, padded cell

where his pleas for an examination for the pain in his back

were first met with threats of beatings, after which he was

placed in irons and locked, hands and feet, to a drain pipe,

in a fetal position. Jd. at 1130. The plaintiff alleged that he

was not allowed to see a physician until February 3, 1977,

nearly five months later, at which time he first discovered

that his back had been permanently injured. The plaintiff

filed his action for medical malpractice and civil rights

(under § 1983) on January 10, 1978. Noting the one year

limitations period borrowed from Louisiana law, the

district court dismissed the plaintiff’s civil rights and medi-

cal malpractice claims for the incidents occurring prior to

January 10, 1977. The Fifth Circuit reversed and remanded

the dismissal of the malpractice c'aim, aiguing that:

If the plaintiff was unaware of the permanence

of his injury, and reasonably thought that the

pains in his back were the normal result of a

spinal tap or were caused by the alleged as-

saults, he cannot be deemed to have know-

ledge of the factual predicate of his claim or

its connection with possible malpractice by the

defendants. Until he suspected, or should have

suspected, that his pain was not the result of

a properly-conducted spinal tap or of the

alleged assaults, he lacked any factual basis on

ey 2

which to suspect an invasion of his legal

rights.

Lavellee v. Listi, 611 F.2d at 1131-1132.

In Lavellee, as with the present case, there is a

crucial, if subtle, distinction between the plaintiffs’ know-

ledge of his or her injury and knowledge of the causal

connection between the injury and a particular defendant’s

actions. The plaintiff in Lavellee certainly knew or should

have known soon after his involuntary spinal tap and

shackling that somehow he had been injured at the hands

of the deputy sheriffs, just as the plaintiff in the case at

bar knew that she had been sexually assaulted and injured

by Mr. Wright. Nonetheless, the Fifth Circuit found that

the plaintiff in Lavellee could not necessarily be expected

to know that his permanent back injury was also proxi-

mately caused by an improperly conducted spinal tap

operation by the defendant medical personnel Likewise,

the critical question this Court now faces is whether

Sowers knew or should have known that the school dis-

trict, superintendent, principal and assistant principal had

fostered an environment of deliberate indifference toward

teacher abuse of female students which was a proximate

cause of her injury.

The defendants argue that this action should be

barred by the statute of limitations because: (1) defendants

did not have a policy or custom of reckless indifference;

(2) their conduct was not a cause of the plaintiff’s injury;

and (3) even if their conduct was found to be a cause of

her injury, the plaintiff knew or should have known of that

-38-

causal connection in late 1979 or early 1980, when school

administrators pressured her to renounce her charges and

publicly apologize to Wright.

The defendants direct this Court’s attention to the

Third Circuit’s decision in Sandutch v. Muroski, 684 F.2d

252 (3d Cir. 1984), to recast the federal discovery rule for

accrual of a cause of action as follows:

that notice of improper conduct by government

officials should lead a plaintiff, by the exercise

of due diligence, to the awareness that he has

a cause of action against the government

officials based upon a conspiracy to violate his

civil rights.

Defendants’ Brief in Support, p. 7. This is an inaccurate

statement of the holding of Sandutch,!3 as well as of the

13 Sandutch was a civil rights action against state prosecutors alleging a

violation and conspiracy to violate the plaintiff's constitutional rights by

obtaining a false confession from an alleged co-conspirator and using ‘it to

prosecute the plaintiff, Sandutch, for arson and murder. 684 F.2d 252. The

false testimony linking Sandutch to the crime was given during a preliminary

hearing and was introduced at his criminal trial. After the preliminary hearing

but prior to trial the alleged co-conspirator recanted, saying his statements

were made under duress. Sandutch’s attorney attempted to introduce the

taped recantation at the criminal trial, but the court excluded it. Several years

later in September, 1980 (after Sandutch had been convicted and jailed)

Sandutch obtained an affidavit from the alleged co-conspirator explaining the

circumstances under which the false statement was obtained. Sandutch filed

his civil rights action two weeks later, arguing that he neither knew nor had

reason to know of his injury until he received the September, 1980 affidavit.

The Third Circuit found that Sandutch should have known of the

alleged conspiracy because:

-39-

—_:—

actual federal discovery rule. While the actual discovery

rule delays accrual of a cause of action until a plaintiff |

knew or should have known of the injury and its causal |

connection to the defendant, the defendants’ misstatement

of the rule would have the cause of action accrue when

the plaintiff receives "notice of improper conduct by go-

vernment Officials." Jd. Defendants use this inaccurate

statement of the rule to argue that Sowers’ cause of

action accrued at the time of her September, 1979 meeting

with Smith and Miller at which she alleges the defendants

engaged in “improper conduct," by attempting to intimi-

date, threaten and coerce her into retracting her allega-

tions against Wright. Jd. at 9. The defendants assert that

"[sJurely the alleged overt and hostile conduct of Defen-

dants at this meeting was sufficient, as a matter of law, to

put [Sowers] on notice of the conspiracy." Jd. However,

the defendants’ treatment of Sowers after the assault was

not, and obviously could not have been, a cause of her

assault. There is no al legation that Sowers knew of the

defendants’ handling of previous sex abuse complaints

against teachers. Furthermore, there are many credible

although at that time Sandutch may not have known all the

facts necessary to establish that the defendants conspired to

deprive him of his right, his 1976 knowledge of the alleged

falsity of [the alleged co-conspirator’s] statement obtained

under duress should have led, by the exercise of due dili-

gence, to the awareness that he had a cause of action. The

Statute began to run then.

684 F.2d at 254. Nowhere in the Sandutch decision do we find any reference

to the “notice of improper conduct” discovery rule represented to this Court

by the defendants.

-40-

explanations for why observance of the defendants’ con-

duct at the 1979 meetings might not be expected to lead

her to the conclusion that there was a policy of reckless

indifference (e.g., Sowers thought that the defendants

simply did not believe her allegations). Merely because the

plaintiff had witnessed some “improper conduct" by the

defendants did not necessarily give her reason to know of

an ongoing policy of reckless indifference to numerous

complaints of sexual abuse by teachers which might have

been a proximate cause of her own injury.

In order for this Court to decide the statute of

limitations question, we must consider the allegations of

the plaintiff's complaint with relation to the "knew or

should have known standard. As to the question of whe-

ther the plaintiff actually knew of her injury and the causal

connection between her injury and the defendants’ con-

duct, the plaintiff insists that it was not until Edward

Wright’s history of sexual abuse was revealed to the Brad-

ford community in March, 1986 that she knew of the

defendants alleged reckless indifference toward the prob-

lem. Bearing in mind our responsibility to construe the

facts in the light most favorable to the plaintiff when

ruling On a motion to dismiss, we must conclude for the

purpose of this motion that it was not until March, 1986

that Sowers actually knew how the defendants’ conduct

was proximately caused her injury.

The more difficult question is whether or not Sowers

should have known of the causes of her injury. The Third

Circuit has stated that "[w]hether or when a plaintiff

-41-

knows or has reason to know of the existence and cause

of his or her injury will often turn on inferences drawn

from disputed facts." Van Buskirk v. Carey Canadian

Mines. Ltd., 760 F.2d 481, 487 (3d Cir. 1985) (affirming

jury finding that plaintiff knew or had reason to know of

cause of asbestos-related condition more than two years

prior to lawsuit). We find it significant that the plaintiff's

complaint alleges more than one incident of abuse of

female students by teachers prior to Wright’s June, 1979

assault upon the plaintiff, with school officials taking only

minimal disciplinary action in response.!4 We are not sure

that these alleged prior incidents will prove a formal policy

or custom, but as the Third Circuit stated in Estate of

Bailey By Oare v. County of York, 768 F.2d 503 (3d Cir.

1985), "even in the absence of formal agency conduct, an

‘official policy’ may be inferred ‘from informal acts or

omissions of supervisory municipal officials’. . . . ‘[t]he

issue of suthorization, approval or encouragement is

generally one of fact, not law.” Id. at 506 (citations omit-

ted) (quoting Turpin v. Mailet, 619 F.2d 196, 200, 201 (2d

Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66

L.Ed.2d 475 (1980); see also Owen v. City of Independence,

445 U.S. 622, 633-34 & n. 13, 655 n. 39, 100 S.Ct. 1406-07

14 We view the plaintiff's allegations concerning the defendants’ handling

of sexual abuse incidents prior to the Sowers episode as relevant evidence of

policy or custom of deliberate indifference toward such behavior by teachers.

This does not mean that this Court has decided that evidence of subsequent

acts may not also tend to prove the nature of a prior conspiracy. See, ¢.g,,

Grandstaff v. City of Borger, Tex., 767 F.2d 161, 171 (Sth Cir.), cert. denied

55 U.S.L.W. 3607, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987).

-42-

& n. 13, 1417 n. 39, 63 L.Ed.2d 673 (1980). We believe

that the plaintiff is entitled to offer evidence to support

her claim that she did not know, and should not have

been expected to know, that there existed an environment

of reckiess indifference toward sexual abuse of female

students by teachers at the Bradford Area School District.

We think the plaintiff is also entitled to an oppor-

tunity to engage in discovery and attempt to prove that

the alleged practice, custom and/or policy of reckless

indifference to students’ complaints of sexual abuse of

female students by male teachers was a proximate cause

of her injury. The Third Circuit has stated that "[o]rdinari-

ly, proximate cause cannot be determined on the basis of

pleadings but instead requires a factual development at

trial." Estate of Bailey By Oare v. County of York, 768 F.2d

at 511 (citing Black v. Stephens, 662 F.2d 181, 190-91 (3d

Cir. 1981), cert. denied, 445 U.S. 1008, 102 S.Ct. 1646, 71

L.Ed.2d 876 (1982) (jury question whether policy at issue

proximately caused injury)). "Whether there is an ‘affirm-

ative link’ between ‘the adoption of any plan or policy

express or Otherwise’ and the injury complained of is

ordinarily an issue that requires a factual development." Jd.

at 511 (quoting Rizzo v. Goode, 423 U.S. 362, 371, 96

S.Ct. 598, 604, 46 L.Ed.2d 561, 569 (1976).

We think factual development will be necessary to

make a determination as to whether the defendants

alleged conduct was a proximate cause of the plaintiff’s

injury, and if the plaintiff knew or should have known of

that alleged causal connection between the defendants’

-43-

conduct and the sexual assault upon Sowers. We will

therefore deny the defendants’ motion to dismiss the

action as barred by the statute of limitations.

IV. Qualified Immunity

The individual defendants Smith, Miller and Shuey

also seek dismissal on the basis that their actions were

within the scope of those actions protected by the doctrine

of qualified immunity.!5 Qualified or "good faith" immuni-

ty is an affirmative defense that recognizes that govern-

ment officials are entitled to some form of immunity from

suits for damages. The Supreme Court, in Harlow v.

Fitzgerald, held that:

[G]overnment officials performing discretionary

functions generally are shielded from liability

for civil damages insofar as their conduct does

not violate clearly established statutory or

constitutional rights of a person of which a

reasonable person would have known.

457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396,

410 (1982). The individual defendants’ eligibility for dismis-

sal of this action under the qualified immunity doctrine

turns on whether a reasonable person would have known

15 The defendants do not assert the qualified immunity defense on behalf

of the school district, conceding that the doctrine does not apply to a

municipal defendant. Defendants’ Brief in Support, p. 19 n. 11 (citing Owen

«. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L-Ed.2d 673

(1980)).

-44.

that their conduct violated a clearly established constitu-

tional right.

These same defendants previously have raised the

qualified immunity defense before this Court as a basis for

granting them summary judgment in Stoneking v. Bradford

Area School Dist., another suit brought by a female stu-

dent at the Bradford high school raising constitutional

claims stemming from sexual abuse suffered at the hands

of Edward Wright.'© This Court held that the defendants

were not entitled to qualified immunity, concluding that a

reasonable person would have been aware that the plain-

tiff had a substantive due process right to be free from

intrusions into her "personal privacy and bodily integrity."

Stoneking, 667 F. Supp. 1088, 1102 (W.D. Pa. 1987). We

stand by that conclusion, and dery the individual defen-

dants’ motion to dismiss on the basis of qualified im-

munity.

ORDER -

AND NOW, this 29th day of August, 1988, after

careful consideration of the Defendants’ Motion to Dis-

16 Wright's sexual abuse and harassment of Kathleen Stoneking began

in the fall of 1980. The first incident of abuse consisted of Wright forcibly

kissing her, and as time progressed the abuse greatly accelerated both in

terms of frequency and intrusiveness. The assaults continued on an almost

weekly basis until Stoneking’s graduation in the spring of 1983. See Stonek-

ing v. Bradford Area School Dist., 667 F. Supp. 1088, 1090 - 1091 (WD. Pa.

1987).

-45-

miss, and for the reasons set forth in the accompanying

Memorandum Opinion,

IT IS HEREBY ORDERED that the Defendants’

Motion to Dismiss is DENIED.

C. Complaint

Sowers v. Bradford Area School District ef ai.

No 88-57 Erie

February 17, 1988

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JUDY GROVE SOWERS,

Plaintiff

vs No. 88-57

BRADFORD AREA SCHOOL DISTRICT;

FREDERICK SMITH, in his individual

and official capacity as Principal

of Bradford Area High School;

RICHARD MILLER, in his individual

and official capacity as Assistant

Principal of Bradford Area High

School; and FREDERICK SHUEY, in his

individual and official capacity as

Superintendent of the Bradford Area

School District,

Defendants

COMPLAINT

Parties and Jurisdiction

1. The plaintiff, Judy Grove Sowers (hereinafter

“plaintiff"), is a citizen of the Commonwealth of Pennsylva-

nia and resides in Bradford, Pennsylvania.

2. The defendant. Bradford Area School District

(hereinafter the "School Disirict"), is a local governmental

agency organized pursuant to the laws of the Common-

-49-

wealth of Pennsylvania with its principal offices located at

50 Congress Street, Bradford, Pennsylvania.

3. The defendant, Frederick Smith (hereinafter

"Smith"), is a citizen of the Commonwealth of Pennsyl-

vania, residing in Bradford, Pennsylvania, who is and was

at all material times the Principal of the Bradford Area

High School.

4. The defendant, Richard Miller (hereinafter

"Miller), is a citizen of the Commonwealth of Pennsyl-

vania, who is and was at all material times the Assistant

Principal of the Bradford Area High School.

5. The defendant, Frederick Shuey (hereinafter

"Shuey"), is a citizen of the Commonwealth of Pennsylva-

nia, residing in Bradford, Pennsylvania, who was at all

material times the Superintendent of the School District.

6. This action arises under Title 42 of the

United States Code, §1983 and this court has jurisdiction

of this action pursuant to Tile 28 of the United States

Code, §§1331 and 1343.

Facts

7. In 1976, the School District hired Edward

Wright (hereinafter "Wright") to serve as band director.

8. In his capacity as band director, Wright was

vested with broad responsibility for conducting and manag-

ing the band and music programs of the School District,

including the selection of student participants, the schedul-

ing and conducting of practice sessions, including a sum-

-50-

mer camp, and scheduling and conducting band competi-

tions and periodic music rehearsals throughout the school

year.

9. At all material times, Wright conducted the

aforesaid activities with the knowledge, consent and

approval of the defendants.

10. During Wright’s tenure as band director, the

School District’s music program greatly improved and the

Bradford Area High School Band won numerous competi-

tions, as a result of which Wright enjoyed the strong

support and backing of the School District and its officials.

11. The plaintiff graduated from Bradford Area

High School in May of 1980 and was a member of the

band during her sophomore, junior and senior years.

12. On or about June 16, 1979, the plaintiff was

sexually assaulted by Wright.

13. In or about Sentember of 1979, the plaintiff

reported the sexual assault tu a visiting youth counselor,

Gene Dillard, who was lecturing in the School District at

the request of the Administration.

14. Subsequent to that conversation, Dillard,

personally met with defendants Smith and Miller and a

Guidance Counselor whose identity is presently unknown

and advised them of the reports of sexual abuse and ha-

rassment by Wright and further advised that he considered

the reports to be accurate.

-51-

cca eels

15. At or about the same time, and periodically

thereafter during the fall and early winter of the school

year 1979-1980, the plaintiff met with defendants Smith

and Miller and personally informed them of the sexual

assault by Wright.

16. During these meetings with the plaintiff,

defendants Smith and Miller actively discouraged the

plaintiff from pursuing her remedies in court against

Wright through intimidation, threats and coercion, and

further indicated to the plaintiff for reasons unknown to

her at the time, that they did not believe her.

17. In or about January of 1980, defendant

Smith required the plaintiff, as a condition of her con-

tinued participation in the band, to appear before the

assembled high school band for the purpose of issuing a

public apology for having accused Wright of the sexual

assault.

18. At the band meeting, the defendant Smith

opened the floor to questions from plaintiff’s fellow stu-

dents, but the plaintiff did not issue an apology and left

the band room in an extremely emotional state.

19. Defendant Shuey was on actual notice of

plaintiff’s allegation of sexual molestation by Wright and

was also aware of and condoned the administrative re-

sponse thereto.

20. Prior to his employment in the Bradford

School District, Wright had attempted to sexually molest

-§2-

and/or harass various female students while employed as

the band director in the Jasper School District.

21. During his tenure in the Bradford School

District, Wright had sexually abused and/or harassed other

female students in the District both prior and subsequent

to assaulting plaintiff.

22. The defendants were on actual or construc-

tive notice that Wright posed a significant threat to the

health, safety and welfare of the female student body at

Bradford High School in general and the plaintiff in partic-

ular prior to June 16, 1979.

Count I

Judy Grove Sowers v. Bradford Area School District

23. Paragraphs 1 through 22 are incorporated

herein by reference as if fully set forth.

24. There existed in the Bradford School District

a widespread practice, custom and/or policy with the

knowledge and acquiescence of administrative personnel,

including Smith, Miller, Shuey and the Bradford School

Board, of reckless indifference to and/or active conceal-

ment of instances of known or suspected sexual abuse of

students by teachers.

25. This pernicious practice, custom and/or policy

existed prior and subsequent to the assault by Wright of

the plaintiff. However, its existence was unknown and

unknowable to the plaintiff at the time.

26. In support of the above averment, the plain-

tiff pleads with particularly the following: (Onity the initials

of the victims of the sexual abuse and/or harassment are

set forth below. The full names of the victims involved

will be divulged to the court, in camera, if desired.)

(a) During the school year of 1977-78, a female

senior at the Bradford High School, T:R., com-

plained to defendants Smith and Miller that a

history teacher-and girls’ tennis coach, Richard

DeMarte, had made improper sexual advances

toward her in a classroom. No disciplinary action

was taken against DeMarte and the student was

told by the defendants not to tell her parents of

the incident.;

(b) In or about 1978, and periodically thereafter,

defendants Smith, Miller and Shuey received

complaints of sexually abusive language and/or

improper sexual advances by a Shop Teacher,

George Brady. No disciplinary action taken

against Mr. Brady and the administrative re-

sponse was to place a sign on Brady’s shop door

prohibiting students from congregating there;

were advised by the plaintiff and Dillard of

Wright’s sexual molestation of the plaintiff in

June of 1979 and had been on notice prior

thereto of Wright’s proclivity with respect to

female students;

-54-

(d) On or about January 12, 1981, defendants

Smith and Miller were informed by a second

female student of Bradford High School, L.T.,

that Richard DeMarte had kissed her on the

neck several times in a classroom. No discipli-

nary action was taken against DeMarte and the

Administration’s response was to remove the

student from DeMarte’s class and issue to him a

"no one-on-one" directive;

(e) On or about March 10, 1981, another female

student of the Bradford High School, L.L., re-

ported to Smith and Miller that Richard

DeMarte had blindfolded her in a classroom,

ostensibly to demonstrate the sense of touch, and

she observed him on his hand and knees looking

up her dress. No disciplinary action was taken

against DeMarte and Smith actively intimidated

the student from pursuing further action in

stating that it was "DeMarte’s word against hers"

and "Mr. Miller and he would have to judge from

that." Another "no one-on-one" directive was

issued to DeMarte;

(f) In or about March of 1982, two female

students complained to the defendants that Mr.

Brady had written sexually suggestive notes and

further had asked female students to come into

his shop room alone after school. No disciplinary

action was taken against Brady;

-55-

(g) On or about November 23, 1982, yet a

fourth female student at the High School, K.L.,

complained to defendants Smith and Miller that

Richard DeMarte had touched her inappropriate-

ly and was attempting to develop a romantic rela-

tionship. No disciplinary action was taken against

DeMarte;

(h) Commencing in or about June of 1984 and

continuing through approximately November of

1984, the defendants were advised by numerous

sources, including the parents of A.P., a female

basketball player in the High School, that her

male coach, Alex Nuzzo, was attempting to

develop a romantic relationship with her. De-

spite numerous complaints, no disciplinary action

was taken and Nuzzo was simply issued a written

"no one-on-one directive" by defendant Smith

with the knowledge and consent of Miller, Shuey

and the School Board precluding him from being

along with female students;

(i) In or about late September or early October

of 1984, a female band member, K.R., informed

a guidance counselor that Wnght had attempted

to sexually molest her in a vehicle. In addition,

this student informed the counselor that Wright

was presently molesting another student and had

molested a student who graduated. This informa-

tion was relayed to defendant Smith and ulti-

mately defendant Shuey;

-56-

ieee eileen

(j) On or about December 15, 1984, defendant

Smith met with Wright and issued another no

one-on-one directive, but informed Wright that

"no one had accused him of any wrongdoing;"

(k) In or about October of 1985, the defendants

were informed that Richard DeMarte had at-

tempted to sexually assault R.H., a former Brad-

ford High School student, while attending a

homecoming celebration. No disciplinary action

was taken against DeMarte;

(1) In or about March of 1986, three female

Bradford High School students, M.P., J.M., and

A.F., complained to defendants that the girls

swimming coach had made improper sexual

comments. No disciplinary action was taken

against Bell;

(m) In or about March of 1986, Wright resigned

after public disclosure of his sexual abuse of

students but a private psychologist rather than

the School District contacted the police an the

Child Hot Line..

27. The recklessly indifferent custom, practice

and/or policy of the School District consisted of the follow-

ing:

(a) Failing to report pursuant to the require-

ments of the Child Protective Services Law, 11

P.S. §2201 et seq., various incidents of suspected

-57-

abuse or harassment of female students by Brad-

ford Area High School teachers;

(b) Permitting various teachers to remain in

charge of extracurricular student activities, such

as the band and girls tennis team, despite knowl-

edge that said teachers presented a danger to the

health, safety and welfare of the participants

thereof;

disciplinary action against various teachers, includ-

ing Wright, who the defendants knew posed a

threat to the health, safety and welfare of the

female student population;

(d) Actively concealing reports of sexual abuse

of students by teachers and discouraging the

victims from pursuing their remedies in court

through threats, intimidation and coercion;

(e) Failing to require the monitoring of various

teachers’ activities despite actual knowledge that

they posed a threat to the female population of

the Bradford Area School District;

(f) Consistently giving the various teachers set

forth above the maximum possible score of their

yearly rating forms despite actual knowledge that

said teachers had been sexually abusing and/or

harassing female students over a several year

period;

(g) Failing to adopt, implement and/or follow a

proper policy or procedure to insure the identifi-

cation and reporting of sexual abuse of students

by teachers.

28. At all material times, a special custodial

relationship existed between the plaintiff as a student and

the defendants as administrative personnel of the School

District.

29. At all material times, each of the defendants

acted under color of state law.

30. The recklessly indifferent custom, practice

and/or policy of the School District as set forth above

created a climate wherein child abusers, such as Wright,

could prey upon female students with impunity.

31. As a proximate result of the aforesaid cus-

tom, practice and/or policy of the School District, the

plaintiff was deprived of her rights, privileges and immuni-

ties secured by the Constitution or Laws of the United

States, specifically her liberty interest to be free in her

person from sexual abuse guaranteed under the Four-

teenth Amendment and her rights under the First and

Fourteenth Amendments of free access to the courts

impeded by threats, coercion or intimidation.

32. As a further proximate result of the custom,

practice and/or policy of the School District, the plaintiff

has suffered and will continue to suffer in the future from

severe mental anguish, embarrassment, humiliation and

emotional distress.

-59-

WHEREFORE, the plaintiff, Judy Grove Sowers,

requests compensatory damages against the defendant,

Bradford School District, in an amount in excess of

$10,000.00, plus costs of suit and attorney's fees pursuant

to Title 42, U.S.C. §1988.

Count II

(Conspiracy to Violate Plaintiff's Civil

Rights Under §1983)

Judy Grove Sowers v. Frederick Smith,

Richard Miller and Frederick Shuey

33. The averments in paragraphs 1 through 32

are incorporated herein by reference as if sully set forth.

34. At all material times both prior and subse-

quent to the assault by Wright of the plaintiff, the in-

dividual defendants were members of a conspiracy whose

purpose was to conceal from public instances of known

and/or suspected sexual abuse of students by various

teachers in the Bradford School District, including Wright.

35. This conspiracy was unknown and unknow-

able to the plaintiff at the time.

36. The overt acts in furtherance of said conspir-

acy included the individual defendants’ consistent failure to

respond appropriately to the various complaints of sexual

abuse or harassment by teachers, including Wright, as set

forth more fully above and in particular the recklessly

indifferent fashion in which the defendants addressed the

complaints of the plaintiff against Wright during the school

year 1979-80.

37. As further evidence of said conspiracy,

defendant Smith maintained a personal, secret file in his

desk drawer at home memorializing many of the com-

plaints concerning the teachers set forth more fully above

and also the explicit or tacit agreement of each of the co-

conspirators to the reckless, willful and wanton administra-

tive response to each complaint.

38. As a proximate result of the aforesaid con-

spiracy between the individual defendants, the plaintiff was

deprived of her rights, privileges and immunities secured

by the Constitution or Laws of the United States, specifi-

cally her liberty interest to be free in her person from

sexual abuse guaranteed under the Fourteenth Amend-

ment and her rights under the First and Fourteenth

Amendment of free access to the courts impeded by

threats, coercion or intimidation.

39. As a further proximate result of the custom,

practice and/or policy of the School District, the plaintiff

has suffered and will continue to suffer in the future from

severe mental anguish, embarrassment, humiliation and

emotional distress.

WHEREFORE, the plaintiff, Judy Grove Sowers,

request compensatory damages against the defendants,

Frederick Smith, Richard Miller and Frederick Shuey, in

an amount in excess of $10,000.00, plus punitive damages,

-61-

. ’ |

costs of suit and attornev’s fee pursuant to Title 42, U.S.(

$1988

JURY TRIAI

DEMANDED

Respectfully submitted,

KNOX GRAHAM MCLAUGHLIN

GORNALL AND SENNETT,.

INC.

BY: /s/ Wallace J. Knox

s/Sean J. McLaughlin

Attorneys for Plaintft

Judy Grove Sowers

120 West Tenth Street

Erie, PA 16501

(814) 459-2800

-6)-

D. Motion to Dismiss

Sowers v. Bradford Area School District ef al

No 88-57 Erie

April 12, 1988

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JUDY GROVE SOWERS,

Plaintiff

vs C.A. No. 88-57 Erie

BRADFORD AREA SCHOOL DISTRICT;

FREDERICK SMITH, in his individual

and official capacity as Principal =

of Bradford Area High School;

RICHARD MILLER, in his individual

and official capacity as Assistant

Principal of Bradford Area High

School; and FREDERICK SHUEY, in his

individual and official capacity as

Superintendent of the Bradford Area

School District,

Defendants

MOTION TO DISMISS AND/OR STRIKE

NOW COME DEFENDANTS, by and through

their attorneys MURPHY, TAYLOR AND ADAMS, P.C.

and ISRAEL AND WOOD and move to dismiss the

within Complaint or, in the alternative, strike portions

thereof, setting forth as follows:

«5.

I. Motion to Dismiss Pursuant to F.R.Civ.P. 12 (b) (6)

1. The Complaint fails to state a claim upon

which relief can be granted, for the following reasons:

a. It appears from the face of the Com-

plaint that Plaintiff’s injury occurred on June 16, 1979, and

no plausible excuse has been pleaded as to why Plaintiff

did not bring her action within the limitations period

allowed for actions such as these; accordingly, the claim is

barred by the statute of limitations.

b. The Defendants were under no duty to

protect this Plaintiff from the injury which allegedly oc-

curred to her at the hands of a school teacher.

c. The individual defendants are immune

from this action.

d. No action of any Defendant was the

"moving force" behind this alleged injury; the Bradford

Area School District is therefore not liable.

e. Count Two does not set forth any allega-

tion of illegal conduct by any Defendant.

f. Any state law claims which might be

inferred from the allegations of this Complaint are barred

by the Pennsylvania Political Subdivision Tort Claims Act.

II. Motion to Strike Pursuant to F.R.Civ.P 12 (f)

2. Paragraphs 25 and 26 of the Complaint con-

tain immaterial, impertinent and scandalous matters, con-

b6- ae

sisting of allegations of conduct involving teachers other

than Ed Wright, students other than Plaintiff, and conduct

subsequent to the alleged injury to Plaintiff, all of which

has no bearing in any way on the alleged injury to this

Plaintiff.

3. Paragraph 20 alleges conduct of Ed Wright

which pre-dates his employment with the Defendant Brad-

ford Area School District, but fails to allege that the Dis-

trict ever knew about the said conduct. It is thus im-

material to any cause of action.

Respectfuily Submitted,

MURPHY, TAYLOR AND ADAMS, P.C.

By:

Kenneth D. Chestek, Esq.

518 State Street

Erie, Pa. 16501

(814) 459-0234

ISRAEL AND WOOD

By:

James W. Harvey

501 Grant Building

Pittsburgh, Pa. 15222

(412) 391-1114

E. Excerpts of Transcript of

Judy Grove Sowers

Taken September 12, 1986

in the case of Rovito vs. Bradford Area

School District, et al., Nc. 86-133 in the

United States District Court for the Westerr District

of Pennsylvania

-69-

IN THE UNITED STATES DISTSICT COURT

a A

OR THE WESTERN OISTRICT OF P

KIM HARBAUGH and LISA ROVITO,

- Plaintiffs

Civil Action

Vv.

BRACFORD AREA SCHCOL OISTRICT,

FREDERICK SMITH, In his

individual and official

Capacity as principal of

Bracford Area High School; and

FRECERICK SHUEY. in his

individual and official

Capacity as Superintendent of

Pracford Area School District,

Defendants

ee ee ee ee ee es es es

real

Owers, Colleen ticDonalo

Depositions of Judy Grove

toneking taken at the

Becin, Kathy Rodgers and Kathy

offices of Quinn, Gent. Suseck and Leemhuis, Inc... 1400 G.

Daniel Baldwin Building, Erie, Pennsylvania on Friday,

september 12, 1986 beginnina at 9:00 a.m. before Mary F.

Hines, court reporter.

Appearec on behalr of the Plaintifts

- , ~

Sea J. McLauqchlin, Esquire

Ane _ ) = r —. =

Apveéerec on Denalt or the VDetendcants

s~ c nr ar ~ oc” ~~

: pames OD. McDonalc. Jr.. ESQuire C

Kenneth 0. Chestek,. € uire

ee ‘ RS

oi SS e MOSANTIA 2 rLCOwERS

gisine what Hatzvcenec. ile cc neeg tO nnsw tne ~actc.

SR. NeLACSHLIN: Juay.e vou'll save to--I saree witn 'c.

NcDonalc. you nave an owlication to testify. so co tne

oest you can.

‘de Let me ask you some oreliminacy guestions.

You've indicated that the first incivent occurred. or 2a

incigent occurred on June 16. 1979. You've inoicateo tnac

this was after the conclusion of school. is that ricnt?

After scnool let out for the year?

A. Yes.

De where cia the incident occur?

A. At his house.

0. All riant. and where was his house at that time?

A. North Center Street.

GC. Was there anyone else there that you know ot

other than you and he?

arternoon

So yOu remember whether it was morninca,

Or eveninc?

| A. No.

Q. Do you remember what day or the weex June ivtn

was?

A. Saturcay.

QO. DO you remember what time ot the day you arrived

SowESSs

Ov. Afternoon.

Je Do you remember wnece ycu nhac been pricr to

comina to his house, going to his house?

A. ty sistec’'s wecdinc.

Q. Had he attended the wedding. as well?

A. No. |

0. whose idea was it for you to go to nis nouse? |

Yours or his?

A. Mine.

0. Okaye what was the purpose of coing to his hone?

A. To pick up a tave of our marching music. I1 was

section leader and I was to learn the music.

Qo. Was there any prearcangement that you would pick

it up,- not necessarily that day. but at any time?

A. No, I was going away the next day fairly early

for two weeks, and the day I came back was the day band

Dractice was supposed to start.

| 0. ~ How do you know this was June 16, 1979? |

A. Because that's the cay my sister marcriec. |

| Cc. You relate it to the wedcing date, so you're

| solid on at least the day that it occurred?

A. Yes.

| Q. liad you participatec in the weading ceception

befere goinc?

A. Yes.

; '

~7;™ e

out how well

the pest of

went to tne

tape 2a tape.

So I sat dow

and he was m

Judy. Did y

coming.

QO.

tape?

SCwErs

dad you been crinkinc:

Yes.

Okay. My only purpose in asSkina that is to find

you recall what went on after that. What. an

your cecollection, happened trom the time you

door until the time you left there?

I know he was preparing a tape. preparing to

It was my understanding it was already made.

n and the only tnina I remember was waking up

ore or less--,

Let me ask some other questions for a moment,

ou tell him why you were there?

He knew, yes.

How did he know?

I called him before I left. He knew I was

Before you left the wedding reception?

My house,

Would that have beer before or after the weacinea

After the wedding reception.

Had you adviseo his that you wanted to pick up a

—

roi

ee ee ee

ime

p=)

— TT

IAaV

aab

; ce

-i +

eve

aS5i

pess

nto.

I <

}

eid

}

~ sa

was

eer

~ ¥

= ¢

,er

vel

rr.

« .

Yir

—

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.