Wartluft et al v. The Milton Hershey School And School Trust et alREPLY BRIEF re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIMM.D. Pa.December 19, 2016IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JULIE ELLEN WARTLUFT F/K/A JULIE ELLEN BARTELS AND FREDERICK L. BARTELS, JR., Individually and as Administrators of the Estate of Abrielle Kira Bartels, Deceased, Plaintiffs, vs. THE MILTON HERSHEY SCHOOL, and THE HERSHEY TRUST COMPANY, AS TRUSTEE OF THE MILTON HERSHEY SCHOOL TRUST, Defendants. : : : : : : : : : : : : : : : : : C.A. NO.: 1:16-cv-02145-CCC (CHIEF JUDGE CONNER) DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT Thomas B. Schmidt, III (PA 19196) Justin G. Weber (PA 89266) Simoné L. Delerme (PA 317120) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238.0575 (fax) schmidtt@pepperlaw.com weberjg@pepperlaw.com delermes@pepperlaw.com Attorneys for Defendants Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 1 of 18 -i- TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES .................................................................................... ii I. INTRODUCTION ........................................................................................ 1 II. ARGUMENT ................................................................................................. 2 A. Plaintiffs’ Response Confirms That Their Claims Are Based On Ms. Bartels’ Enrollment, Which Is A Contractual Relationship. ....................................................................................... 2 B. Plaintiffs’ Response Confirms That There Are No Facts Alleging That Any “Misrepresentation” Was Made With An Intent To Mislead Nor Any Facts Showing Reliance. ............... 7 C. Plaintiffs Confirm That They Have Failed To Allege Any “Extreme Or Outrageous” Conduct And Failed To Plead Any Facts Showing That Plaintiff-Parents Suffered Physical Harm .................................................................................................... 8 III. CONCLUSION ........................................................................................... 12 Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 2 of 18 -ii- TABLE OF AUTHORITIES Page(s) CASES Andrews v. City of Phila., 895 F.2d 1469 (3d Cir. 1990) ......................................... 9 Buttermore v. Caliber Home Loans, 2016 U.S. Dist. LEXIS 8221 (W.D. Pa. Jan. 25, 2016) .................................................................................... 11 Castellucci v. Harcum Coll., 2016 U.S. Dist. LEXIS 58454 (E.D. Pa. May 2, 2016) ........................................................................................................ 9 Developers Sur. & Indem. Co. v. Mathias, 2013 U.S. Dist. LEXIS 173973 (M.D. Pa. Dec. 11, 2013) ..................................................................... 7, 8 Hoy v. Angelone, 720 A.2d 745 (Pa. 1998) ........................................................ 9, 10 K.A., a minor, v. Upper Perkiomen Sch. Dist., 2012 U.S. Dist. LEXIS 86073 (E.D. Pa. Mar. 12, 2012) ........................................................................... 4 Kimberg v. Univ. of Scranton, 411 Fed. Appx. 473 (3d Cir. 2010) .......................... 4 Kleinknecht v. Gettysburg Coll., 989 F.2d 1360 (3d Cir. 1993) ............................ 5, 6 Krysmalski by Krysmalski v. Tarasovich, 622 A.2d 298 (Pa. Super. 1993) ............................................................................................................ 10, 11 Love v. Cramer, 606 A.2d 1175 (Pa. Super. 1992) ................................................. 10 M.S. v. Susquehanna Twp. Sch. Dist., 43 F.Supp. 3d 412 (M.D. Pa. 2014) ................................................................................................................... 10 Messer v. First Fin. Credit Union, 2012 U.S. Dist. LEXIS 105997 (E.D. Pa. July 10, 2012) ...................................................................................... 10 Michael v. Shiley, Inc., 46 F.3d 1316 (3d Cir. 1995) ................................................. 8 Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) ........................................................... 4 Reardon v. Allegheny Coll., 926 A.2d 477 (Pa. Super. 2007) ............................... 4, 7 Rementer v. Kellogg Co., 2015 U.S. Dist. LEXIS 133700 (E.D. Pa. Oct. 1, 2015) ........................................................................................................ 9 Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 3 of 18 Page(s) -iii- Rudas v. Nationwide Mut. Ins. Co., 1997 U.S. Dist. LEXIS 169 (E.D. Pa. Jan. 10, 1997) ................................................................................................ 11 Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999) ............................................... 4 Woodward v. Dietrich, 548 A.2d 301 (Pa. Super. 1988) ........................................... 8 Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 4 of 18 -1- I. INTRODUCTION Plaintiffs’ response to Defendants’ Motion to Dismiss confirms that their purported tort claims are based on Ms. Bartels’ enrollment at the School and the alleged termination of her enrollment.1 These claims are based on, and governed by, a contractual relationship. Plaintiffs do not identify any cases allowing claims arising from a student’s enrollment at a private school, or claims regarding termination of that enrollment, to be repackaged as tort claims. Instead, Plaintiffs’ response confirms that a contractual relationship - Ms. Bartels’ enrollment at Milton Hershey School - is the source of the tort duties they allege. The “gist of the action” doctrine specifically precludes tort claims where, as here, the source of the duty is a contractual relationship. Even if Plaintiffs’ asserted tort claims were not based on contractual duties and barred by the “gist of the action” doctrine, Plaintiffs’ response confirms that they have failed to state claims for misrepresentation (they do not allege any facts showing an intent to mislead Plaintiffs or Ms. Bartels or any reliance on a misrepresentation) and intentional infliction of emotional distress (they do not allege any facts showing “extreme or outrageous” conduct or, for Plaintiff-parents, 1 Defendants dispute that Ms. Bartels’ enrollment was terminated but do not challenge that assertion at this procedural juncture. Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 5 of 18 -2- any physical injury). Accordingly, their misrepresentation and intentional infliction of emotional distress claims should be dismissed. II. ARGUMENT A. Plaintiffs’ Response Confirms That Their Claims Are Based On Ms. Bartels’ Enrollment, Which Is A Contractual Relationship. Plaintiffs’ response confirms that their tort claims are based on Ms. Bartels’ enrollment at the School.2 Indeed, it reconfirms that Ms. Bartels’ enrollment creates and defines their claims. Specifically, Plaintiffs’ response confirms that the “gist of the action” doctrine applies because the wrongful conduct they complain about involves the School’s: • “expelling [Ms. Bartels];” • “acting either negligently or deliberately to terminate [Ms. Bartels’] enrollment,” which Plaintiffs allege caused Ms. Bartels a variety of alleged damages; • “declining to use its vast resources to adequately address [Ms. Bartels’] condition.” Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 11-12. Although Plaintiffs assert a variety of claims, they all derive from the School’s alleged “decision to expel [Ms. 2 Plaintiffs’ Response to Defendants’ Motion to Dismiss (ECF No. 42) shall be cited as “Pls.’ Resp. to Defs.’ Mot. to Dismiss.” Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 6 of 18 -3- Bartels].” Id. at 10. These are claims regarding duties that are created, and defined, by a contractual relationship. Moreover, while Plaintiffs’ Amended Complaint eliminated their original breach of contract claim, it retained the core allegations that delineated Ms. Bartels’ relationship with the School. They still refer to the “directives” that they assert created the contracts. Plaintiffs state, for example, that “[t]he Handbook, the Equal Opportunity Policy, and the [ADA] Settlement Agreement …are [the School]’s own directives…, which it failed to follow in caring for [Ms. Bartels]” Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 11; and “[d]espite the promise made and stated intentions of the School in the ADA Settlement Agreement and Equal Opportunity Policy, the Defendants have failed to follow their own directives….” AC ¶ 56.3 Plaintiffs’ attempt to create a tort duty by asserting an in loco parentis relationship does not change the contractual nature of the private school-student relationship and Plaintiffs’ assertion of claims based on the alleged termination of enrollment. Instead, it only confirms that the source of the duty they allege is a contractual relationship - Ms. Bartels’ enrollment at the School. Simply put, 3 Plaintiffs argue “[t]his failure constitutes tortious conduct.” Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 11. Plaintiffs are describing a discrimination claim that would be based on statute and not a common law tort. And, at this time, Defendants have not moved to dismiss Plaintiffs’ statutory claims. Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 7 of 18 -4- Plaintiffs argue that it is the contractual relationship, Ms. Bartels’ enrollment at the School, that creates a tort duty. They claim that this duty was breached when the contractual relationship - Ms. Bartels’ enrollment - was terminated and she no longer received the School’s services. “[T]he relationship between a private educational institution and an enrolled student is contractual in nature.” Kimberg v. Univ. of Scranton, 411 Fed. Appx. 473 (3d Cir. 2010) (quoting Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. 1999)). The contract between the parties “is comprised of the written guidelines, policies, and procedures as contained in the written materials distributed to the student over the course of their enrollment in the institution.” Id. The “gist of the action” doctrine is applied to enrollment claims and is not limited to certain cases as Plaintiffs suggest in their response. See Reardon v. Allegheny Coll., 926 A.2d 477 (Pa. Super. 2007); Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 11. Plaintiffs do not cite a single case that allows a student to sustain tort claims based on the contractual relationship between the student and a private school. None of the cases that Plaintiffs cite even involves enrollment-related claims. K.A., a minor, v. Upper Perkiomen Sch. Dist., 2012 U.S. Dist. LEXIS 86073 (E.D. Pa. Mar. 12, 2012) (holding that endangering welfare of child claim was properly pled against public school based on allegation that teacher sexually abused student); Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) (discussing duty in Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 8 of 18 -5- state-regulated foster care under state and federal law in the context of New Jersey Department of Human Services);4 Kleinknecht v. Gettysburg Coll., 989 F.2d 1360 (3d Cir. 1993) (holding that a college owes a duty to a student athlete to provide preventative measures during college-sponsored athletic activities). Plaintiffs rely on Kleinknecht v. Gettysburg College for the broad proposition that a special relationship exists between a school and a student that creates a duty cognizable in tort. Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 8. The decision does not support such a broad principle. Kleinknecht involved a medical emergency during an athletic event where a student-athlete suffered a cardiac arrest. 989 F.2d at 1362. The Third Circuit was careful to narrowly apply a tort duty to a medical emergency regarding an intercollegiate athlete: “Our holding is narrow. It predicts only that a court applying Pennsylvania law would conclude that the College had a duty to provide prompt and adequate emergency medical services to [] one of its intercollegiate athletes, while he was engaged in a school- sponsored athletic activity for which he had been recruited.” Id. at 1371 (emphasis added). Plaintiffs’ reliance on Kleinknecht to create duties arising generally from a student’s enrollment is unfounded. Kleinknecht did not involve claims 4 Nicini v. Morra, a case that originated in New Jersey District Court, did not involve Pennsylvania law. Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 9 of 18 -6- regarding a student’s enrollment, or the alleged termination of that enrollment. At no time in Kleinknecht did the court predict, or even imply, a change in the law regarding the contractual nature of enrollment-related claims. See id. Whether Plaintiffs seek to cast their tort claims as negligence, misrepresentation, infliction of emotional distress, breach of fiduciary duty, or conspiracy, they are all claims based on Ms. Bartels’ enrollment or statements made in the documents that they alleged served as contracts. Specifically, for their breach of fiduciary duty claim, they confirm that it is Ms. Bartels’ enrollment that creates the alleged “fiduciary” duty. Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 17 (confirming that breach of fiduciary duty claim is about when the School could “expel” students and that the School defined the scope of its duty through “policy documents”). Plaintiffs assert that Ms. Bartels’ enrollment - a contractual relationship - creates a fiduciary duty that then precludes the School from terminating that contractual relationship (or otherwise determines when it can be terminated). Id. Plaintiffs’ misrepresentation, infliction of emotional distress, and conspiracy claims are no different. Id. at p.17-18 (confirming that these additional tort claims are, like Plaintiffs’ negligence claim, based on the relationship between the private school and student). Plaintiffs do not contest that their “misrepresentation” claims are based on the statements in the contracts that they alleged. Id.; Compare Doc. 1, Complaint, Count II, with AC ¶¶ 206-24. Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 10 of 18 -7- Moreover, Plaintiffs confirm that their infliction of emotional distress and conspiracy claims, like their negligence claim, are based on an alleged tort duty created by Ms. Bartels’ enrollment. Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 18. The fact that Plaintiffs allege that they and Ms. Bartels suffered a variety of damages from the alleged termination of Ms. Bartels’ enrollment does not change the genesis of the duty or whether and when her enrollment could be terminated. Because Plaintiffs effectively acknowledge that their tort claims are based on Ms. Bartels’ enrollment at the School and the alleged termination of her enrollment, Plaintiffs’ tort claims must be dismissed under the “gist of the action” doctrine. See Reardon, 926 A.2d 487 (applying the “gist of the action” doctrine to a student’s tort claims arising from his termination from the school). B. Plaintiffs’ Response Confirms That There Are No Facts Alleging That Any “Misrepresentation” Was Made With An Intent To Mislead Nor Any Facts Showing Reliance. Plaintiffs’ claims for negligent and intentional misrepresentation also fail because there are no facts alleged that the School intended to mislead Plaintiffs or Ms. Bartels or that Plaintiffs or Ms. Bartels relied upon any factual representations. Claims for intentional and negligent misrepresentation require a plaintiff to plead facts that show a defendant intended to mislead him. Developers Sur. & Indem. Co. v. Mathias, 2013 U.S. Dist. LEXIS 173973 (M.D. Pa. Dec. 11, Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 11 of 18 -8- 2013). Plaintiffs do not even argue that they have alleged any facts to show that Defendants intended to mislead them or Ms. Bartels. See Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 18, 19. As a result, Plaintiffs’ claims for intentional and negligent misrepresentation must be dismissed. Developers Sur. & Indem. Co., 2013 U.S. Dist. LEXIS 173973 (dismissing claims for intentional and negligent misrepresentation where plaintiff failed to make the required factual showing). Moreover, to rely on a misrepresentation, a plaintiff must “act or refrain from action.” Michael v. Shiley, Inc., 46 F.3d 1316, 1334 (3d Cir. 1995); Woodward v. Dietrich, 548 A.2d 301 (Pa. Super. 1988). Plaintiffs’ simply state that “[they] relied on [] misrepresentations to their detriment” without identifying any action that they or Ms. Bartels took or refrained from taking in reliance on Defendant’s alleged communications. Even if Plaintiffs alleged facts to show that there was an intent to mislead them or Ms. Bartels (which they have not), there are no facts showing reliance to support a claim for negligent or intentional misrepresentation. See Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 19. C. Plaintiffs Confirm That They Have Failed To Allege Any “Extreme Or Outrageous” Conduct And Failed To Plead Any Facts Showing That Plaintiff-Parents Suffered Physical Harm Plaintiffs’ response confirms that they have failed to allege any facts showing “extreme or outrageous” behavior or any physical injury to Plaintiff- Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 12 of 18 -9- parents, required elements to maintain a claim for intentional infliction of emotional distress. First, Plaintiffs cite no case law that supports their contention that Defendants’ alleged conduct was “extreme or outrageous” behavior. Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 20. Intentional conduct that is tortious or even criminal does not suffice. See Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998). Instead, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Id. For example, “as a general rule, sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action for intentional infliction of emotional distress.” Andrews v. City of Phila., 895 F.2d 1469, 1487 (3d Cir. 1990); Rementer v. Kellogg Co., 2015 U.S. Dist. LEXIS 133700 (E.D. Pa. Oct. 1, 2015). Where the facts alleged are not sufficient to constitute conduct that is so “extreme or outrageous,” the court may and should dismiss an intentional infliction of emotional distress claim. Castellucci v. Harcum Coll., 2016 U.S. Dist. LEXIS 58454, at *8 (E.D. Pa. May 2, 2016). Plaintiffs confirm that the “outrageous” conduct they allege is “moving to expel for no legitimate reason a long standing, yet highly vulnerable student.” Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 19. Plaintiffs’ allegations regarding “moving to expel a student” fall short of the “extreme and outrageous” Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 13 of 18 -10- conduct necessary to assert a claim for intentional infliction of emotional distress. See Hoy, 720 A.2d at 755. Moreover, any attempt to view the conduct in an intentional infliction of emotional distress claim through the lens of the alleged damages is erroneous, because intentional infliction claims focus only on the defendant’s conduct. Krysmalski by Krysmalski v. Tarasovich, 622 A.2d 298, 316 (Pa. Super. 1993) (distinguishing between negligent infliction claims that focus on foreseeability of distress and intentional infliction claims that focus on outrageousness of defendant’s conduct). With respect to Plaintiff-parents’ claim for intentional infliction of emotional distress, conclusory allegations of “physical harm” are insufficient to survive a motion to dismiss. M.S. v. Susquehanna Twp. Sch. Dist., 43 F.Supp. 3d 412, 430-31 (M.D. Pa. 2014); Messer v. First Fin. Fed. Credit Union, 2012 U.S. Dist. LEXIS 105997, at *17 (E.D. Pa. July 30, 2012) (granting motion to dismiss because allegations of “severe emotional distress” and “extreme stress, anxiety, mental anguish, [and] embarrassment” were inadequate to state a claim for intentional infliction of emotional distress). Plaintiffs do not allege any facts indicating that Plaintiff-parents suffered a physical injury or “severe emotional distress” beyond mere conclusory allegations. Indeed, even if the labels that they pick from Love v. Cramer, 606 A.2d 1175, 1179 (Pa. Super. 1992), were sufficient to show physical injury, their allegations do not match those in Love. Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 14 of 18 -11- Moreover, relying upon Krysmalski by Krysmalski, 622 A.2d 298, a negligent infliction of emotional distress case, Plaintiffs allege that “harm to a close family member can satisfy [the] physical harm element of infliction of emotional distress.” Pls.’ Resp. to Defs.’ Mot. to Dismiss, p. 21. Their reliance on Krysmalski is misplaced. First, Defendants argued that Plaintiffs failed to state a claim for intentional infliction of emotional distress. Br. in Supp. of Defs.’ Mot. to Dismiss, p. 17 (Doc. 32). While Pennsylvania acknowledges a bystander theory of liability for negligent infliction of emotional distress, this theory requires a “contemporaneous observation” which Plaintiffs fail to allege in their Amended Complaint. See Krysmalski, 622 A.2d at 305. Second, even if there was an allegation of “contemporaneous observation,” which there is not, this is insufficient to assert a claim of intentional infliction of emotional distress. See Buttermore v. Caliber Home Loans, 2016 U.S. Dist. LEXIS 8221 (W.D. Pa. Jan. 25, 2016) (distinguishing between intentional and negligent infliction of emotional distress claims regarding bystander theory of liability). As a result, Plaintiffs’ allegations are insufficient to state a claim for intentional infliction of emotional distress and their claim should be dismissed. Rudas v. Nationwide Mut. Ins. Co., 1997 U.S. Dist. LEXIS 169 (E.D. Pa. Jan. 10, 1997) (dismissing claim for intentional infliction of emotional distress where the plaintiff had not alleged physical injury). Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 15 of 18 -12- III. CONCLUSION Plaintiffs’ Response to Defendants’ Motion to Dismiss confirms that their claims concern Ms. Bartels’ enrollment at the School and the alleged termination of her enrollment. Plaintiffs assert that the alleged termination was improper and that Ms. Bartels’ suicide and their injuries were a result. This is not a tort claim. It is a claim based on the contractual relationship between a private school and its student. Plaintiffs cannot use the contractual relationship created by Ms. Bartels’ enrollment at the School as the source of a tort duty, and argue that the tort duty then governs whether and when the enrollment could be terminated. As a result, Plaintiffs’ tort claims should be dismissed based on the “gist of the action” doctrine. Additionally, because Plaintiffs have not alleged sufficient facts to show that they are entitled to relief on their misrepresentation and intentional infliction of emotional distress claims, those claims should also be dismissed. Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 16 of 18 -13- Respectfully submitted, s/ Justin G. Weber Thomas B. Schmidt, III (PA 19196) Justin G. Weber (PA 89266) Simoné L. Delerme (PA 317120) PEPPER HAMILTON LLP 100 Market Street, Suite 200 P.O. Box 1181 Harrisburg, PA 17108-1181 717.255.1155 717.238.0575 (fax) schmidtt@pepperlaw.com weberjg@pepperlaw.com delermes@pepperlaw.com Dated: December 19, 2016 Attorneys for Defendants Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 17 of 18 CERTIFICATE OF SERVICE I hereby certify that on December 19, 2016, I electronically filed the foregoing Defendants’ Response in Support of Their Motion to Dismiss Plaintiffs’ Amended Complaint which will send notification of such filing to counsel of record for all parties. s/ Justin G. Weber Justin G. Weber (PA 89266) Case 1:16-cv-02145-CCC Document 43 Filed 12/19/16 Page 18 of 18 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JULIE ELLEN WARTLUFT F/K/A JULIE ELLEN BARTELS AND FREDERICK L. BARTELS, JR., Individually and as Administrators of the Estate of Abrielle Kira Bartels, Deceased, Plaintiffs, vs. THE MILTON HERSHEY SCHOOL, and THE HERSHEY TRUST COMPANY, AS TRUSTEE OF THE MILTON HERSHEY SCHOOL TRUST, Defendants. : : : : : : : : : C.A. NO.: 1:16-cv-02145-CCC (CHIEF JUDGE CONNER) UNREPORTED CASES CITED IN DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT Buttermore v. Caliber Home Loans, 2016 U.S. Dist. LEXIS 8221 (W.D. Pa. Jan. 25, 2016) K.A., a minor, v. Upper Perkiomen Sch. Dist., 2012 U.S. Dist. LEXIS 86073 (E.D. Pa. Mar. 12, 2012) Messer v. First Fin. Credit Union, 2012 U.S. Dist. LEXIS 105997 (E.D. Pa. July 10, 2012) Rementer v. Kellogg Co., 2015 U.S. Dist. LEXIS 133700 (E.D. Pa. Oct. 1, 2015) Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 1 of 35 Buttermore v. Caliber Home Loans United States District Court for the Western District of Pennsylvania January 25, 2016, Decided; January 25, 2016, Filed Civil Action Number 15-1514 Reporter 2016 U.S. Dist. LEXIS 8221 *; 2016 WL 308875 JOHNATHAN BUTTERMORE, Plaintiff, v. CALIBER HOME LOANS and VERICREST FINANCIAL, INC., Defendants. Counsel: [*1] JOHNATHAN BUTTERMORE, Plaintiff, Pro se, Carmichaels, PA. For CALIBER HOME LOANS, Defendant: Christina M Lepore, LEAD ATTORNEY, Stoll Keenon Ogden PLLC, Canonsburg, PA. Judges: Joy Flowers Conti, Chief United States District Judge. Opinion by: Joy Flowers Conti Opinion Plaintiff, Johnathan Buttermore ("plaintiff"), proceeding pro se, filed this action in October 2015 in the Court of Common Pleas of Greene County, Pennsylvania. (ECF No. 1 ¶ 1.) Defendant Caliber Home Loans ("Caliber") timely removed the action, invoking this court's diversity jurisdiction. (Id. at ¶¶ 2-3, 8-14.) In doing so, Caliber submitted proof that Vericrest Financial, Inc. is not a separate corporate entity and that Caliber, which is a citizen of Delaware and Texas, is the only party in interest. (Id. ¶¶ 5-6; ECF No. 1-2 at 2-3.) Plaintiff does not challenge these jurisdictional facts. Shortly after filing its notice of removal, Caliber filed a motion to dismiss four of the fourteen counts pled in the complaint. (ECF No. 5.) For the reasons set forth below, Caliber's motion will be granted. I. Factual Background This case arises out of a dispute between plaintiff and Caliber, the servicer of the mortgage on his home. Plaintiff avers that after [*2] he filed for bankruptcy protection in December 2009, Caliber engaged in a course of misconduct and harassment which included, for example, a) modifying the terms of his mortgage, without notice, resulting in increased costs and fees, b) refusing to advise him about the amount overdue and outstanding on his mortgage, resulting in his mortgage payments being deemed insufficient and partial, c) failing to pay property taxes from his escrow account, d) initiating foreclosure proceedings, and e) engaging in harassing and abusive collection practices via telephone. (ECF No. 1-1 at 5-10.) Plaintiff notes that his wife is also a signatory on the mortgage and did not file for bankruptcy protection, yet was subject to the same misconduct and harms. (Id. ¶¶ 4, 15-16, 19.) Plaintiff's wife is not a named plaintiff in this case. Plaintiff's complaint consists of fourteen counts: 1) Fair Debt Collection Practices Act ("FDCPA") 2) Pennsylvania Fair Credit Extension Uniformity Act 3) Truth in Lending Act ("TILA") 4) Pennsylvania Unfair Trade Practices and Consumer Protection Law Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 2 of 35 Page 2 of 34 Buttermore v. Caliber Home Loans 5) Negligence 6) Breach of Fiduciary Duty and Covenant of Good Faith and Fair Dealing 7) Promissory Estoppel 8) Defamation 9) Negligent [*3] Hiring 10) Negligent Supervision 11) Breach of Contract 12) Intentional Infliction of Emotional Distress 13) Fraud in the Inducement 14) Punitive Damages (ECF No. 1-1 at 9-27.) Plaintiff seeks an award of monetary damages, as well as recession of the mortgage contract and reimbursement of all amounts paid under it to date.1 (Id. and ¶ 208.) Caliber moves to dismiss Counts 8 through 10 and 12 of the complaint. (ECF No. 5.) Plaintiff did not oppose dismissal of the defamation claim, and therefore Count 8 will be dismissed, with prejudice, without further discussion. Counts 9, 10, and 12 will be dismissed, without prejudice, because, as set forth in this opinion, they are insufficiently pled. II. Legal Standards The Court of Appeals for the Third Circuit recently reiterated the standards and procedures that a district court must apply when deciding a motion to dismiss made pursuant to Rule 12(b)(6): A complaint may be dismissed under Rule 12(b)(6) for "failure to state [*4] a claim upon which relief can be granted." But detailed pleading is not generally required. The Rules 1 Although Caliber does not raise this issue in its motion to dismiss, it would appear that plaintiff's wife, as a signatory and obligee, would be a necessary party with respect to any cause of action that seeks to rescind, void, or modify the mortgage contract. demand "only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "To 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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citation and internal quotation marks omitted). "A claim has facial plausibility 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.; see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n. 27 (3d Cir. 2010). Although the plausibility standard "does not impose a probability requirement," Twombly, 550 U.S. at 556, it does require a pleading to show "more than a sheer possibility that a defendant has acted unlawfully," Iqbal, 556 U.S. at 678. A complaint that pleads facts "merely consistent with a defendant's liability ... stops short of the line between possibility and plausibility of entitlement to relief." Id. (citation and internal quotation marks omitted). The plausibility determination is "a context- specific [*5] task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, it must "tak[e] note of the elements [the] plaintiff must plead to state a claim." Iqbal, 556 U.S. at 675. Second, it should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) ("Mere restatements of the Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 3 of 35 Page 3 of 34 Buttermore v. Caliber Home Loans elements of a claim are not entitled to the assumption of truth." (citation and editorial marks omitted)). Finally, "[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. Connelly v. Lane Const. Corp., No. 14-3792, 809 F.3d 780, 2016 U.S. App. LEXIS 366, 2016 WL 106159, at *3-4 (3d Cir. Jan. 11, 2016). At the final step of the analysis, the court is to assume all well-pled allegations of "historical fact" to be true, construe those allegations in the light most favorable to the plaintiff, draw all reasonable inferences from the facts in favor of plaintiff, and ask whether those facts "raise a reasonable expectation that discovery will reveal evidence" to support the legal claim being asserted. 2016 U.S. App. LEXIS 366, [WL] at *7. Allegations of historical [*6] fact are assumed to be true even if "unrealistic or nonsensical," "chimerical," or "extravagantly fanciful." 2016 U.S. App. LEXIS 366, [WL] at *6 (citing Iqbal, 556 U.S. at 681). "Put another way, Twombly and Iqbal expressly declined to exclude even outlandish allegations from a presumption of truth except to the extent they resembled a 'formulaic recitation of the elements of a ... claim' or other legal conclusion." Id. III. Analysis A. Negligent Hiring and Supervision (Counts 9 and 10) Caliber contends in its motion to dismiss Counts 9 and 10 that plaintiff's complaint consists of "blanket, conclusory statements that merely recite the elements of the claim" without describing any instances of specific misconduct by Caliber employees, including details about any specific interaction with a particular employee or harm that resulted, or providing information about Caliber's hiring or supervision procedures. (ECF No. 6 at 7- 8.) In response, plaintiff argues that the complaint contains specific allegations about Caliber's misconduct, in particular, that it modified his mortgage without notice, initiated foreclosure proceedings, even though timely payments were being made, and failed to pay taxes out of the escrow account, all of which resulted [*7] in higher interest payments, increased mortgage length, higher property tax payments, and mental anguish. (ECF No. 11 at 4.) Plaintiff explains that it is impossible for him to know what Caliber's procedures and policies are about these matters at this juncture, and therefore, his complaint does not, and cannot, include specific allegations about those facts. (Id. at 5.) Step One: First, the court must take note of the elements plaintiff must plead in order to state claims, under Pennsylvania law,2 for negligent hiring and supervision. Pennsylvania recognizes employer liability for negligence in connection with the employment or supervision of its employees "consistent with the Restatement (Second) of Agency," which provides that "[a] person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: (a)...; (b) in the employment of improper persons or instrumentalities in work involving risk of harm to others; or (c) in the supervision of the activity." Young v. Temple Univ. Campus Safety Servs., No. 15-2892, 2015 U.S. Dist. LEXIS 145948, 2015 WL 6503386, at *4 (E.D. Pa. Oct. 28, 2015) (citing Heller v. Patwil Homes, Inc., 713 A.2d 105, 107 (Pa. Super. Ct. 1998) (quoting Restatement (Second) of Agency § 213)). Such a claim is "specifically predicated on two duties of an employer: the duty to reasonably monitor and control the activities of [*8] an employee, and the duty to abstain from hiring an employee and 2 The parties both discuss Pennsylvania law in their briefs. Given that the mortgaged property is located in Pennsylvania, and that plaintiff is a resident of this state, there appears to be no reasonable dispute that Pennsylvania substantive law applies in this diversity action. Kovach v. Turner Dairy Farms, Inc., 929 F.Supp.2d 477, 495 n.12 (W.D. Pa. 2013) (citing decisions). Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 4 of 35 Page 4 of 34 Buttermore v. Caliber Home Loans placing that employee in a situation where the employee will harm a third party." Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 488 (3d Cir. 2013) (citing Hutchinson v. Luddy, 560 Pa. 51, 742 A.2d 1052, 1059-60 (Pa. 1999)). In order to state a plausible claim for employer liability for negligent hiring or supervision, a complaint must allege facts that, if true, would establish "the four elements of common law negligence, i.e., duty, breach, causation, and damages." Belmont, 708 F.3d at 488 (citing Brezenski v. World Truck Transfer, Inc., 2000 PA Super 175, 755 A.2d 36, 42 (Pa. Super. Ct. 2000)). A complaint must also allege facts that would establish that the employer knew or should have known of a reason not to hire the employee or of the necessity for exercising control over the employee because he or she had a propensity to engage in the misconduct that occurred. Belmont, 708 F.3d at 491 (citing Devon IT, Inc. v. IBM Corp., 805 F.Supp.2d 110, 132 (E.D. Pa. 2011)); Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418, 422 (Pa. 1968); McClain v. RBS Citizen's Bank, N.A., 57 F.Supp.3d 438, 442 (E.D. Pa. 2014) (citing Keffer v. Bob Nolan's Auto Serv., Inc., 2012 PA Super 255, 59 A.3d 621, 662 (Pa. Super. Ct. 2012)). As an initial matter, it is important to clarify the character of the claims pled by plaintiff. There is a distinction in the legal authority between claims based upon employee misconduct [*9] that occurred within the scope of employment, and outside the scope of employment. Although a review of Pennsylvania law reveals no significant difference in the analysis to be applied once it is determined whether the employee acted within or outside his scope of employment, the distinction is worthy of mention at the outset. Plaintiff acknowledges by the facts pled in the complaint, and the arguments made in opposition to the motion to dismiss, that, to the extent Caliber's employees engaged in misconduct, they did so during, in furtherance of, and within the scope of their employment. (ECF No. 11 at 3.) In such circumstances, Caliber is directly liable if it was negligent or reckless in hiring or supervising an employee. Brezenski, 755 A.2d at 39; see Restatement (Second) of Agency § 213. Caliber could also be held vicariously liable for the misconduct of its employees under general principles of agency law. Brezenski, 755 A.2d at 39; Cahill ex rel. Cahill v. Live Nation, 866 F.Supp.2d 503, 513 (W.D. Pa. 2011); see Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1434-35 (3d Cir. 1994) (explaining and applying general agency law to acts of corporate representatives). Although plaintiff's complaint is not explicit in this fact, it is apparent that plaintiff seeks to impose direct liability on Caliber for its negligence in hiring and supervising its employees in Counts 9 and 10, and, in the remainder of the complaint, [*10] seeks to impose vicarious liability upon Caliber for the actions of its employees, which plaintiff contends violated various state and federal statutes, and Pennsylvania common law. Caliber's motion to dismiss challenges only the direct liability claims pled in Counts 9 and 10. Under the other theory of liability for negligent hiring and supervision, which this court does not understand plaintiff to have pled, a plaintiff can seek to impose direct liability on an employer that acted negligently in hiring, retaining, or supervising an employee who causes harm while she is acting outside the scope of her employment. Heller, 713 A.2d at 107-08 (citing Restatement (Second) of Torts § 317); see Dempsey, 431 Pa. 562, 246 A.2d 418, 422; Belmont, 708 F.3d at 488-89. This is a tort theory of liability, not an agency theory of liability. Because the allegations of the complaint contradict any suggestion that plaintiff considers Caliber's employees' misconduct to have occurred outside the scope of their employment, this theory will not be separately discussed further. Step Two: The next step is for this court to identify which allegations in the complaint are conclusory legal averments and which are "allegations of historical fact." Connelly, 2016 U.S. App. LEXIS Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 5 of 35 Page 5 of 34 Buttermore v. Caliber Home Loans 366, 2016 WL 106159, at *6. Connelly teaches that allegations that "resemble[] a formulaic recitation of the elements [*11] of a claim" or paraphrase the pertinent statutory language of the claims in question are legal conclusions that are entitled to no presumption of truth and must be excluded in assessing the sufficiency of a complaint. Id. Counts 9 and 10 consist of some conclusory legal averments. Both Counts 9 and 10 begin with a recitation that Caliber failed to "properly interview" and "properly supervise" its employees, and to "properly execute all other duties owed to plaintiff." (ECF No. 1-1 ¶ 157(a)-(c) & (g), ¶ 161(a)-(c), & (g).) Such conclusory statements are entitled to no weight in the continuing analysis. Plaintiff's general averment that "they were [sic] owned [sic] reasonable care in entering into said mortgage with the Defendants that they would not suffer harm as a result of Defendants [sic] failure to supervise their respective representatives" is also conclusory and eliminated from further analysis. (Id. ¶ 162.) Step Three: At the final step of the analysis, the court must assume that the remaining well-pled allegations of "historical fact" are true, construe them in the light most favorable to plaintiff, draw all reasonable inferences from them in favor of plaintiff, and ask whether [*12] those facts "raise a reasonable expectation that discovery will reveal evidence" to support the legal claim being asserted. Connelly, 2016 U.S. App. LEXIS 366, 2016 WL 106159, at *7. Even if the allegations are unrealistic, nonsensical, or outlandish, the court must accept them as true. 2016 U.S. App. LEXIS 366, [WL] at *6. The court will consider each challenged count separately.3 Negligent Hiring (Count 9): Plaintiff contends that Caliber engaged in negligent hiring by failing to ensure that its employees had sufficient knowledge 3 Although negligent hiring and supervision claims are often grouped, and analyzed together, the court deems it advisable to consider the factual allegations specific to each count in assessing the sufficiency of the complaint. of, background in, or aptitude to understand the various statutes and laws that he claims were violated. (ECF No. 1-1 ¶¶ 157-58.) Assuming these allegations to be true, and drawing all reasonable inferences in plaintiff's favor, plaintiff still does not sufficiently plead a negligent hiring claim under Pennsylvania law. Caliber's duty is to "abstain from hiring an employee and placing that employee in a situation where the employee will harm a third party." Belmont, 708 F.3d at 488. Plaintiff must allege facts indicating that Caliber knew or should have [*13] known of an employee's propensity to engage in the misconduct that allegedly occurred. Id. at 491. The initial defect in plaintiff's complaint is that he identifies no specific employee, or even class of employees, who are accused of being inexperienced or inept. The court, therefore, must presume for purposes of deciding the present motion to dismiss that plaintiff's allegations apply equally to any and all individuals hired by Caliber who interacted with plaintiff, or completed work on his mortgage; a presumption that stretches the bounds of reasonableness. Even making this presumption, the court concludes that plaintiff fails to adequately plead a claim for negligent hiring. A potential employee's lack of knowledge about or experience with a particular statute or legal theory is not probative of that employee's likelihood to violate the law. Similarly, a potential employee's alleged lack of aptitude to understand those laws is not probative that the employee will violate them. It, at most, indicates that the potential employee will prove to be incompetent and unable to perform his or her duties for the employer. The law, however, does not impose liability on an employee for hiring the incompetent. [*14] Restatement (Second) of Agency § 213, cmt. d. Plaintiff's complaint consists of no allegations of historical fact indicating that Caliber hired any employee into a position in which he would harm a third party or knew or should have known of any employee's likelihood to violate the law. Plaintiff's Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 6 of 35 Page 6 of 34 Buttermore v. Caliber Home Loans complaint relies entirely upon the premise that because Caliber's employees allegedly violated the law, it must follow that Caliber was negligent or reckless in hiring them. That premise does not set forth the facts necessary to sufficiently plead a negligent hiring claim in Pennsylvania.4 Caliber's motion to dismiss Count 9 will be granted, without prejudice. Negligent Supervision (Count 10): In his negligent supervision claim, plaintiff contends that Caliber failed to ensure that its employees were complying with the various statutes or laws that he claims were violated. (ECF No. 1-1 ¶ 161(d)-(f).) Plaintiff further claims that Caliber had unidentified written and unwritten policies and procedures that ensured the collection of [*15] debt "by any means necessary" and "knowingly documented false information as it pertained to communications with the plaintiff." (ECF No. 1-1 ¶¶ 163-68.) Assuming these allegations to be true, and drawing all reasonable inferences in plaintiff's favor, plaintiff still does not sufficiently plead a negligent supervision claim under Pennsylvania law. To reiterate, Caliber's duty is to "reasonably monitor and control the activities of its employees." Belmont, 708 F.3d at 488. Plaintiff must allege facts indicating that Caliber knew or should have known of the necessity to exercise control over an employee because he or she was likely to engage in misconduct. Id. at 491. As with the negligent hiring claim, the initial defect in plaintiff's negligent supervision claim is that he identifies no specific employee, or even class of employees, who are alleged to have engaged in conduct giving rise to a particularized duty of supervision. The court must, therefore, presume that plaintiff's theory is either that Caliber knew or should have known that all its employees were engaging in wholesale misconduct, giving rise to a duty to monitor all of their activity, which duty it 4 As referenced earlier in this opinion, to the extent that these Caliber employees violated the law, Caliber will be liable because it is the principal of its agents (employees). breached, or that Caliber conducted absolutely no supervision [*16] of its employees, giving rise to a per se breach of its duty to supervise. Plaintiff fails to state a claim under either theory. Wholesale Employee Misconduct: Plaintiff does not allege in Count 10, or elsewhere in the complaint, that Caliber knew or had reason to believe that its employees, as a whole, were violating the law, falsifying information, or engaging in any other misconduct. (ECF No. 1-1 ¶¶ 161(d)-(f), 163-68.) No reasonable inference can be made about this element of a negligent supervision claim based upon the facts that are pled in the complaint. Plaintiff's factual accusations about unidentified customer service representatives providing contradictory information, harassing him via telephone, and refusing to cooperate with him, comply with his requests for information, or settle the present dispute are not of such a nature that they can, by proxy, act as indicators that Caliber was on notice of widespread and rampant employee misconduct giving rise to a special duty to supervise the Caliber workforce as a whole. (ECF No. 1-1 ¶¶ 27, 32, 34-35, 37-38, 59, 185.) Plaintiff's factual allegations about how employees applied procedures and policies to him likewise cannot raise [*17] an inference that Caliber knew or should have known that its workforce was engaged in pervasive misconduct. The complaint explicitly assigns responsibility for the allegedly anti- mortgagee policies and procedures to Caliber itself. (ECF No. 1-1 ¶ 163 ("[Caliber] had policies and procedures for their respective parties to refer to and follow"), ¶ 167 ("[Caliber's] policies, written or otherwise, sought to have debts collected by any means necessary"), ¶ 168 ("[Caliber's] policies were incorporated to ensure...").) The complaint, therefore, directly contradicts any suggestion that the policies would have been eradicated if Caliber had adequately supervised its employees. The complaint does not allege, and supports no reasonable inference, that Caliber knew or should have known that all its employees were independently engaging in widespread misconduct, Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 7 of 35 Page 7 of 34 Buttermore v. Caliber Home Loans giving rise to a heightened duty to monitor its entire workforce. Plaintiff does not allege that he was harmed because a particular Caliber employee, or group of employees, independently decided to violate his rights; he alleges that he was harmed because it was Caliber's corporate policy to harm its customers as a matter of practice. Plaintiff [*18] fails to adequately plead a negligent supervision claim based upon the theory that Caliber's supervision was inadequate because every Caliber employee was engaged in unauthorized misconduct and Caliber failed to adequately supervise them. Complete Failure to Supervise: To be clear at the outset, plaintiff does not allege in his complaint that Caliber completely failed to supervise its workforce. The court considers this theory only in the interest of completeness in assessing whether any possible negligent supervision claim is adequately pled. This theory, however, cannot be deemed adequately pled because the facts alleged in the complaint directly contradict it. The complaint, as pled, establishes not that Caliber failed to supervise its employees, but that Caliber instructed its employees to violate the law. Plaintiff contends that Caliber's employees violated the law and abused customers pursuant to policies and procedures designed by and implemented at the direction of Caliber. (ECF No. 1-1 ¶¶ 163, 167-68.) Plaintiff does not allege, even in the alternative, facts from which a reasonable inference could be made that Caliber engaged in absolutely no supervision of its employees. [*19] The only facts alleged in the complaint are ones that conflict with such a theory of liability. As a result, plaintiff fails to adequately plead a negligent supervision claim based upon the theory that Caliber completely failed to supervise its workforce.5 5 If discovery reveals that plaintiff was the victim not of Caliber's anti-mortgagee policies, but of the acts of a group of employees acting without Caliber's authorization, but under circumstances in which Caliber should have known of the misconduct, plaintiff can move to amend the complaint. At present, however, plaintiff has not adequately pled this kind of negligent supervision claim, even in the alternative. Plaintiff's complaint fails to state a claim for negligent supervision under Pennsylvania law under any possible theory. Caliber's motion to dismiss Count 10 will therefore be granted, without prejudice. B. Intentional Infliction of Emotional Distress (Count 12) Caliber contends that plaintiff's intentional infliction of emotional distress claim is subject to dismissal for at least three reasons: (1) a reasonable person would not consider the conduct alleged in the complaint to be extreme and outrageous; (2) plaintiff fails to [*20] plead that he suffered physical harm due to its misconduct; and (3) plaintiff fails to plead sufficient facts to enable Caliber to determine whether the claim is barred by the two-year statute of limitations. (ECF No. 6 at 9- 12.) In opposition, plaintiff contends that a reasonable person would consider it outrageous for a mortgage servicer to add charges to an account, refuse to pay taxes from escrow, and initiate foreclosure proceedings even though a mortgagee was paying on the mortgage and only after the mortgagee filed for bankruptcy protection. (ECF No. 11 at 7.) Plaintiff argues that Caliber is incorrect that the law requires a physical harm to be alleged and that there is no statute of limitations concern because Caliber's misconduct "continued even after the complaint had been filed." (Id. at 8.) Step One: First, the court must take note of the elements plaintiff must plead in order to state a claim, under Pennsylvania law, for intentional infliction of emotional distress. The Pennsylvania Supreme Court has yet to formally recognize a cause of action for intentional infliction of emotional distress, but it has indicated that if it were to recognize such a cause of action, a plaintiff [*21] would, at minimum, need to establish that (1) the defendant's conduct was intentional or reckless, (2) the defendant's conduct was extreme and outrageous, (3) the defendant's conduct caused emotional distress, and (4) the resultant emotional distress was severe. Rios v. Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 8 of 35 Page 8 of 34 Buttermore v. Caliber Home Loans Marv Loves 1, No. 13-cv-1619, 2015 U.S. Dist. LEXIS 116758, 2015 WL 5161314, at *12 (E.D. Pa. Sept. 2, 2015) (citing Taylor v. Albert Einstein Med. Ctr., 562 Pa. 176, 754 A.2d 650, 652 (Pa. 2000)); see Toney v. Chester Cnty. Hosp., 2008 PA Super 268, 961 A.2d 192, 201 (Pa. Super. Ct. 2008); Pavlik v. Lane Ltd./Tobacco Exporters Int'l, 135 F.3d 876, 890 (3d Cir. 1998). The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Buczek v. First Nat'l Bank of Mifflintown, 366 Pa. Super. 551, 531 A.2d 1122, 1125 (Pa. 1987). To the extent state and federal courts in Pennsylvania recognize a claim for intentional infliction of emotional distress, they consistently require that a plaintiff suffer some physical manifestation of his alleged emotional distress. Reeves v. Middletown Athletic Ass'n, 2004 PA Super 475, 866 A.2d 1115, 1122 (Pa. Super. Ct. 2004); Minarsky v. Susquehanna Cty. & Thomas Yadlosky, No. 3:14-cv-02021, 2016 U.S. Dist. LEXIS 4353, 2016 WL 183280, at *4 (M.D. Pa. Jan. 13, 2016) (citing Pennsylvania decisions); Ghrist v. CBS Broad., Inc., 40 F.Supp.3d 623, 630 (W.D. Pa. 2014) (same); Kane v. Chester Cty. Dep't of Children, Youth & Families, 10 F.Supp.3d 671, 693 (E.D. Pa. 2014) (same). Pennsylvania courts further require a plaintiff to support an assertion of a physical manifestation of emotional distress with competent medical evidence. Lawson v. Pa. SPCA, No. 13-7403, 124 F. Supp. 3d 394, 2015 U.S. Dist. LEXIS 110007, 2015 WL 4976523, at *9 (E.D. Pa. Aug. 20, 2015); Wilson v. Am. Gen. Fin. Inc., 807 F.Supp.2d 291, 303 (W.D. Pa. 2011) (citing Pennsylvania decisions). Step Two: The next step is for this court to identify which allegations in the complaint are conclusory legal averments and which [*22] are "allegations of historical fact." Connelly, 2016 U.S. App. LEXIS 366, 2016 WL 106159, at *6. As stated above, Connelly teaches that allegations that "resemble[] a formulaic recitation of the elements of a claim" are entitled to no presumption of truth and must be excluded in assessing the sufficiency of a complaint. Id. Plaintiff's intentional infliction of emotional distress claim consists of seven paragraphs. The final paragraph, which states that "Plaintiff has and continues to be damaged," is entitled to no weight. The remaining allegations are factual in nature and will be considered by the court in assessing the sufficiency of the complaint. Step Three: Lastly, the court must assume that the remaining well-pled allegations of "historical fact" are true, even if they are unrealistic, nonsensical, or outlandish, construe them in the light most favorable to plaintiff, draw all reasonable inferences from them in favor of plaintiff, and ask whether those facts "raise a reasonable expectation that discovery will reveal evidence" to support the legal claim being asserted. Connelly, 2016 U.S. App. LEXIS 366, 2016 WL 106159, at *6-7. Although the court finds that plaintiff minimally meets the requirement of pleading extreme and outrageous misconduct, his intentional infliction of emotional distress [*23] claim must nevertheless be dismissed because he fails to allege any facts from which this court could reasonably infer there was a physical manifestation of his alleged emotional distress. In addition, the claim is inadequately pled with respect to the chronology of events given the applicable twoyear statute of limitations. Extreme and Outrageous Conduct: Caliber seeks dismissal of Count 12 on the ground that no reasonable person could consider its alleged misconduct to go beyond all possible bounds of decency, and be atrocious, and utterly intolerable in a civilized society. (ECF No. 6 at 9-11.) In response, plaintiff highlights those facts pled in the complaint that, he argues, would lead a reasonable person to look upon Caliber's conduct with "sheer outrage and contempt." (ECF No. 11 at 6-8.) In Count 12, plaintiff alleges that Caliber refused to resolve the instant dispute or provide him with "a current amount due," initiated multiple foreclosure attempts, and caused him to modify the terms of his mortgage even though Caliber knew that he was not Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 9 of 35 Page 9 of 34 Buttermore v. Caliber Home Loans in breach of his obligations under the mortgage. (ECF No. 1-1 ¶¶ 184-89; see also ¶¶ 19-23, 27, 33- 36, 37-38.) Although not pled as part [*24] of Count 12, elsewhere in the complaint plaintiff contends that Caliber engaged in this, and other, misconduct, such as refusing to pay taxes out of his escrow account, refusing to provide notice of various modifications and proceedings, and harassing him via telephone. (Id. ¶¶ 18-22, 27, 31, 33, 37-38, 59.) If these allegations are true, which the court must assume them to be, they could plausibly state the extreme and outrageous conduct element of an intentional infliction of emotional distress claim, especially because Caliber allegedly attempted or threatened to foreclose on plaintiff's home on "multiple occasions." (Id. ¶ 112(f).) This court previously considered the sufficiency of a complaint that alleged an intentional infliction of emotional distress claim in the context of an individual's interactions with a company servicing her mortgage in Wilson v. American General Finance, Inc.. In that case, the court reproduced two examples set forth in the commentary to § 46 of the Restatement (Second) of Torts. Wilson, 807 F.Supp.2d at 304. The first example illustrates actionable behavior: 7. A, as creditor, seeking to collect a debt from B, sends B a series of letters in lurid envelopes bearing a picture of a lighting about to strike, in which A repeatedly [*25] threatens suit without bringing it, reviles B as a deadbeat, a dishonest man, and a criminal, and threatens to garnish his wages, to bother his employer so much that B will be discharged, and to "tie B up tight as a drum" if he does not pay.... Id. (citing Restatement (Second) of Torts § 46 cmt. e(7)). The second example illustrates conduct that is not so extreme or outrageous as to trigger liability. 8. A, as a creditor, seeking to collect a debt, calls on B and demands payment in a rude and insolent manner. When B says that he cannot pay, A calls B a deadbeat, and says that he will never trust B again.... Id. citing Restatement (Second) of Torts § 46 cmt. e(8)). In Wilson, this court found that the conduct alleged was closer to the non-actionable, second example because, among other reasons, there were no threats that plaintiff would lose her home. Wilson, 807 F.Supp.2d at 303-04. The facts pled in the instant action are different. Plaintiff avers that Caliber initiated foreclosure proceedings against him, more than once, even though it knew that he was making proper payments on his mortgage debt. (ECF No. 1-1 ¶¶ 23, 112(f).) Although Caliber denies these allegations, for present purposes the court must presume that they are true. A reasonable person could consider a mortgagor's initiation of repeated [*26] foreclosure proceedings without justification to be extreme, outrageous, and intolerable conduct. In addition, plaintiff contends that Caliber refused to provide notice of various modifications and proceedings against him, presumably so that he could take steps to protect his property, only took action against his property after he emerged from bankruptcy, and engaged in a variety of harassing conduct via telephone, that, based upon the facts pled, must have taken place on multiple occasions. (Id. ¶¶18-22, 27, 33, 37-38, 59.) Taken together, and assuming that the historical facts pled are true, which the court must, Caliber's first challenge to the sufficiency of plaintiff's intentional infliction of emotional distress claim fails. Physical Manifestation of Emotional Distress: Caliber seeks dismissal of plaintiff's intentional infliction of emotional distress claim on the ground that plaintiff fails to plead that he suffered physical harm as a result of its alleged outrageous conduct. (ECF No. 6 at 10.) In response, plaintiff states that Caliber "is incorrect in their conclusion that plaintiff must suffer some type of resulting physical harm." (ECF No. 11 at 6.) Plaintiff does not argue, [*27] even in the alternative, that he suffered a physical manifestation of his emotional distress. He opposes dismissal solely upon other legal Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 10 of 35 Page 10 of 34 Buttermore v. Caliber Home Loans grounds. As set forth above, however, Pennsylvania courts require that a plaintiff prove by competent medical evidence that a physical manifestation of alleged emotional distress occurred in order to sustain an intentional infliction of emotional distress claim. The Pennsylvania appellate court decision to which plaintiff cites in support of his contrary recitation of the law is distinguishable. In Krysmalski by Krysmalski v. Tarasovich, 424 Pa. Super. 121, 622 A.2d 298 (Pa. Super. Ct. 1993), the plaintiff asserted a negligent infliction of emotional distress claim under a bystander theory of liability. The pertinent issue presented on appeal was whether a mother who was not hit by a car, but who observed the car hit and seriously injure her children, could assert a negligent infliction of emotional distress claim. Id. at 302-06. The court found that the mother was entitled to relief because "the driver of a vehicle in Pennsylvania owes a duty of care to all motorists and pedestrians in his immediate zone of danger and to any bystander who experiences a contemporaneous observance of an injury to a close relative." Id. at 304 (citing Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672, 679 (Pa. 1986)). The court explained that, [*28] in bystander cases, the dispositive question is whether the claimant "contemporaneously observed" the accident, thus establishing a direct causal link to any contemporaneous emotional distress, not whether there was proof that the psychic injury physically manifested. Krysmalski, 622 A.2d at 305. The appellate court found that the factual record supported the jury's finding that the mother contemporaneously observed the accident, thus establishing the required elements of a negligent infliction of emotional distress claim. Id. at 304-05. Plaintiff does not assert a negligent infliction of emotional distress claim under a bystander theory of liability, but a claim for intentional infliction of emotional distress. The elements of these two causes of action are different, making Krysmalski inapposite to the motion before this court. Krysmalski fails to support plaintiff's position for a second reason. In Krysmalski, the appellate court rejected the tortfeasor's alternative argument that the negligent infliction of emotional distress claim failed as a matter of law because the mother submitted no medical evidence to substantiate her claim of emotional distress. Id. at 305. The court rejected that argument "for the simple reason that medical [*29] evidence is not required in an action for damages for negligent infliction of emotional distress." Id. In doing so, the court explicitly distinguished intentional infliction of emotional distress claims because those claims include a "medical proof requirement." Id. (citing Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988, 995 (Pa. 1987)). As a result, Krysmalski actually supports Caliber's argument that plaintiff must allege facts indicating how he will confirm his alleged emotional distress with competent medical evidence in order to plead an intentional infliction of emotional distress claim. Plaintiff does not include any assertion in his intentional infliction of emotional distress claim, or elsewhere in his complaint, from which this court could reasonably infer that he suffered a physical manifestation of emotional distress as a result of Caliber's conduct. There are no facts pled from which this court could reasonably infer that plaintiff will be able to prove by competent medical evidence that he suffered such harm. Plaintiff avers only that "Plaintiff has [sic] and continues to be damaged." (ECF No. 1-1 ¶ 190.) The court previously excised this allegation from any assessment of the sufficiency of the complaint because it is conclusory. [*30] Although plaintiff specifically asserts that he suffered "embarrassment," "humiliation," "emotional distress," and "loss of life's enjoyments" in connection with his negligent hiring and supervision claims, those counts have been dismissed. In any event, such allegations are not supported by any assertions of fact concerning the manner in which plaintiff's emotional distress physical manifested itself or how plaintiff would confirm the same with medical evidence. The Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 11 of 35 Page 11 of 34 Buttermore v. Caliber Home Loans allegations, therefore, cannot meet the pleading requirements applicable to plaintiff's intentional infliction of emotional distress claim. Caliber's motion to dismiss Count 12 is granted, without prejudice, because plaintiff did not make factual allegations sufficient for this court to infer that has a plausible claim for intentional infliction of emotional distress under Pennsylvania law. Statute of Limitations: Caliber's final challenge to plaintiff's intentional infliction of emotional distress claim is that there are no allegations about when the alleged harmful action took place, making it impossible to determine whether, or to what extent, the claim may be barred by the statute of limitations. (ECF No. 6 at 12.) In [*31] response, plaintiff asserts summarily that there "are no statute of limitations issues" because he pled that the misconduct continued even after the complaint was filed. (ECF No. 11 at 8 (citing ECF No. 1-1 ¶ 104).) Plaintiff is correct that, to the extent he contends that the misconduct continued after he filed suit, the claim is not barred by the statute of limitations. The complaint, however, on its face, raises concerns about this matter. For instance, the only foreclosure proceeding specifically referred to in the complaint occurred in January 2011. (ECF No. 1-1 ¶ 23 and at 33.) Plaintiff filed his complaint in state court in October 2015, well beyond the applicable two-year limitations period for a claim based upon such conduct. 42 Pa.Cons.Stat. § 5524, Ormsby v. Luzerne Cty. Dep't of Pub. Welfare Office of Human Servs., 149 F.App'x 60, 62 (3d Cir. 2005). The only other time-frame that the court could locate in the complaint is an allegation that Caliber's misconduct took place "only after Plaintiff emerged from bankruptcy." (ECF No. 1-1 ¶ 102.) Although plaintiff indicates that he filed for bankruptcy in 2009, there is no allegation in the complaint with respect to when that case was closed. (ECF No. 1-1 ¶ 15.) Publically-available court records indicate that plaintiff was discharged from a bankruptcy [*32] proceeding that was initiated in 2009 by order dated May in May 4, 2010, more than five years before plaintiff filed his complaint in state court. In re: Buttermore, No. 09- 28942, ECF No. 19 (Bankr. W.D. Pa. May 4, 2010). Given this chronology, the complaint's lack of critical details about when Caliber's alleged misconduct occurred is particularly problematic. Such information should be pled in the event plaintiff reasserts this intentional infliction of emotional distress claim. Although this challenge is not determinative given plaintiff's failure to plead sufficient factual allegations for the court to conclude that he has a plausible intentional infliction of emotional distress claim, plaintiff is advised to be cognizant of the statute of limitations issue should he seek leave to file an amended complaint to replead the claim. IV. Conclusion For the foregoing reasons, Caliber's motion to dismiss will be granted. Count 8 is dismissed, with prejudice. Counts 9, 10, and 12 are dismissed, without prejudice. An appropriate order will be filed contemporaneously with this opinion. Dated: January 25, 2016 BY THE COURT, /s/ Joy Flowers Conti Joy Flowers Conti Chief United States District Judge [*33] ORDER AND NOW this 25th day of January, 2016, for the reasons set forth in the written opinion filed on this date, IT IS HEREBY ORDERED that Caliber Home Loans' Motion to Dismiss (ECF No. 5.) is GRANTED. Count VIII of the Complaint is dismissed, with prejudice. Counts IX, X, and XII are dismissed, without prejudice. BY THE COURT, /s/ Joy Flowers Conti Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 12 of 35 Page 12 of 34 Buttermore v. Caliber Home Loans Joy Flowers Conti Chief United States District Judge End of Document Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 13 of 35 K.A. v. Upper Perkiomen Sch. Dist. United States District Court for the Eastern District of Pennsylvania March 12, 2012, Decided; March 12, 2012, Filed Civil Action No. 11-2610 Reporter 2012 U.S. Dist. LEXIS 86073 *; 2012 WL 2362565 K.A. a minor, by her guardians and natural parents JENNIFER ALLEBACH and BRIAN ALLEBACH v. UPPER PERKIOMEN SCHOOL DISTRICT, et al. Subsequent History: Approved by, Adopted by, Motion denied by, in part, Count dismissed at K.A. v. Upper Perkiomen Sch. Dist., 2012 U.S. Dist. LEXIS 86072 (E.D. Pa., June 21, 2012) Counsel: [*1] For K.A., A MINOR, BY HER GUARDIANS AND NATURAL PARENTS, JENNIFER ALLEBACH, BRIAN ALLEBACH, Plaintiffs: STEVEN F. MARINO, LEAD ATTORNEY, MARINO & ASSOCIATES PC, PHILADELPHIA, PA. For UPPER PERKIOMEN SCHOOL DISTRICT, DUANE WICKARD, IN HIS INDIVIDUAL CAPACITY AND AS AN AGENT OF THE UPPER PERKIOMEN SCHOOL DISTRICT EDUCATION CENTER, ARTHUR VIGILANTE, IN HIS INDIVIDUAL CAPACITY AND AS AN AGENT OF THE UPPER PERKIOMEN SCHOOL DISTRICT EDUCATION CENTER, TIMOTHY KIRBY, PH.D., IN HIS INDIVIDUAL CAPACITY AND AS AGENT OF THE UPPER PERKIOMEN SCHOOL DISTRICT EDUCATION CENTER, Defendants: JOSEPH P. CONNOR, CONNOR WEBER & OBERLIES, PC, PAOLI, PA; STEVEN M. LIERO, CONNOR WEBER & OBERLIES, PAOLI, PA. Judges: M. FAITH ANGELL, UNITED STATES MAGISTRATE JUDGE. Opinion by: M. FAITH ANGELL Opinion REPORT AND RECOMMENDATION M. FAITH ANGELL UNITED STATES MAGISTRATE JUDGE Presently before this Court is Defendant's Motion to Dismiss Counts V through XVI of the Plaintiffs' Complaint. For the reasons which follow, it is recommended that the Motion to Dismiss be DENIED for counts V, VI, VII, VIII, IX, and X, and GRANTED for counts XI, XII, XIII, XIV, XV, and XVI. I. Background This case involves the alleged sexual abuse of a minor, K.A., by her teacher, [*2] Brian Miller, while K.A. attended Upper Perkiomen Middle School. Plaintiffs allege that K.A.'s music teacher, Mr. Miller, established a pattern of "inappropriate, immoral and sexual conduct" with K.A beginning in 2005. 1 The alleged inappropriate conduct consisted of sexually charged electronic messages as well as direct sexual interaction. 2 The alleged 1 Pls.'s Compl. ¶ 24. 2 See Pls.'s Compl. ¶¶ 25-35 (describing alleged conduct ranging from sexually charged text messages to the physically touching of Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 14 of 35 Page 14 of 34 K.A. v. Upper Perkiomen Sch. Dist. behavior persisted until discovered by K.A.'s family members in March of 2009. 3 Plaintiffs further alleges that Duane Wickard, the school's acting Principal, Arthur Vigilante, the school's acting assistant Principal, and Timothy Kirby, the school district's acting superintendant, knew, or should have known, of the alleged sexual conduct between Miller and K.A., and that they failed to act in sufficient time to prevent injuries to the child. 4 Plaintiff initiated the instant case on April 15, 2011. On June 23, 2011, Defendants filed their Motion to Dismiss Counts V through XVI of the Plaintiff's Complaint. [*3] Plaintiff does not contest the Motion with regards to Counts XI, XII, XIII, XIV, XV, and XVI and those counts are not discussed below. 5 II. Discussion A. Standard The purpose of a 12(b)(6) motion to dismiss is to test the legal sufficiency of the claims, not the merits. Nelson v. Temple Univ., 920 F. Supp. 633 (E.D. Pa. 1996). To survive a motion to dismiss, plaintiff must allege sufficient facts that, if accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009). A claim has facial plausibility when a plaintiff pleads facts that allow the court to draw the reasonable inference that the defendant may be liable for the misconduct alleged. Id. at 1949. However, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1950 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2009)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). It is on these standards that this Court has reviewed the the student's breasts and vaginal area). 3 Pls.'s Compl. ¶ 38. 4 Pls.'s Compl. ¶¶ 42-57. 5 See Pls.'s Resp. 1. Defendants' Motion. B. State Claims - Endangering the Welfare of a Child and Failure to Supervise It is a general rule of tort law that [*4] one does not have an affirmative duty to rescue and that such a duty can only be created by the existence of a special relationship. E.g., Brown v. Dep't of Emergency Med. Servs. Training Inst., 318 F.3d 473, 477 (3d Cir. 2003); accord Restatement (Second) of Torts § 314. Such a duty may arise from common law, statute, or contract. Emerson v. Adult Cmty. Total Servs., Inc., 842 F. Supp. 152, 155 (E.D. Pa. 1994). Where a duty does exist, one may face liability for a failure to take action. See, e.g., Simmons v. City of Phila., 947 F.2d 1042, 1083-84 (3d Cir. 1991)(interpreting common law to require jail authorities who know or should know that a prisoner, unless forestalled, is likely to harm himself, must exercise reasonable care to ensure that the harm does not occur). Plaintiffs contend that their endangering the welfare of a child and failure to supervise counts are supported by the Restatement (Second) of Torts §§ 314A(4) 6 and 324A 7 as adopted in Pennsylvania. 8 6 The pertinent [*5] section states: (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other. 7 Section 324A states: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 15 of 35 Page 15 of 34 K.A. v. Upper Perkiomen Sch. Dist. Pleadings require no technical form and the title of a cause of action does not solely control. E.g., F.R.C.P. 8(d)(1). Most relevant are the contents of the complaint and the substantive allegations made. Plaintiffs have provided sufficient support in their complaint to state a cause of action under sections 314A and 324A. Plaintiffs have alleged that the school district, through its employees, knew and had the opportunity to intervene on behalf of K.A., but did not do so in breach of duty of reasonable care. 9 The facts as pled provide that K.A. was under the supervision and custody of the school district and that the variously pled defendants all maintained supervisory responsibilities towards K.A. throughout the district's chain of command. While Pennsylvania may not recognize a civil cause of action for endangering the welfare of a child and failure to supervise as titled in the instant case, such causes of action are in accordance with the Restatement provisions. For these reasons, drawing all reasonable inferences in favor of the Plaintiffs, a cause of action is supported for counts V, VI, VII, VIII, IX, and X. C. Political Subdivision Tort Claims Act Under The Pennsylvania Political Subdivision Tort Claims Act ("PSTCA"), government entities like the Upper Perkiomen School district, its [*7] agencies, and employees are generally immune from damages liability. The Act provides, inter alia, "no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa.C.S. § 8541. The general rule under 8541 is subject to several exceptions. Immunity is excepted where 8 Plaintiffs cite to Hamil v. Bashline, 481 Pa. 256, 392 A2.d 1280 (Pa. Super. 1978), for the proposition that Pennsylvania courts have adopted §324A. However, the Hamil court adopted §323 of the Restatement, a related but different Restatement section. Nonetheless, §324A has been adopted in Pennsylvania. See Farabaugh v. Pa. Turnpike Comm'n., 590 Pa. 46, 68, 911 A.2d 1264 (2006)(discussing the [*6] general acceptance of 324A). 9 Pls.'s Compl. ¶¶ 135-39; 143-47; 151-55; 159-65; 169-75; 178-85. both "(1) damages would be recoverable at common law or under a statute creating a cause of action if the injury were caused by a person not protected by immunity, and (2) the claim falls within one of the statutory exceptions to governmental immunity in Section 8542(b) of the [Tort Claims] Act." Gremo v. Karlin, 363 F. Supp. 2d 771, 793 (E.D. Pa. 2005)(alterations in original). Immunity is also excepted where, under §8550, "the act of the employee caused the injury and that such an act constitute[es] a crime, actual fraud, actual malice or willful misconduct." (emphasis added). Willful misconduct has generally been defined by the Pennsylvania Courts as synonymous with term "intentional tort." See id. at 793-94 (explaining the changes in interpretation of the term willful misconduct); accord Hayes v. Erie Cnty., 497 F. Supp. 2d 684, 705 (W.D. Pa. 2007). [*8] To qualify as willful misconduct, "[t]he governmental employee must desire to bring about the result that followed his conduct or be aware that it was substantially certain to follow." Lyons v. City of Phila., 1998 U.S. Dist. LEXIS 17281, 1998 WL 767451 (E.D. Pa. Nov. 4, 1998)(unpublished)(quoting Kuzel v. Krause, 658 A.2d 856, 859 (Pa. Commw. Ct. 1995)). In counts V through X Plaintiffs have pled both "endangering the welfare of the child" and "failure to supervise." Where these counts sound in negligence, they are excluded by the PTSCA as such conduct does not fall into the exception of §8542 or §8550. Gremo, 363 F. Supp. 2d. at 793- 794. However, Plaintiffs have not based their claims on negligence. Plaintiffs' Complaint seeks to address the alleged intentional conduct of the individual defendants. Therefore, the pertinent issue under this motion is whether the Plaintiffs have pled sufficient facts to move their cause of action into the realm of willful misconduct, i.e., intentional tort. Plaintiffs' Complaint contains adequate factual allegations to plausibly support their intentional tort claims. For defendants Mr. Wickard, Mr. Vigilante, and Dr. Kirby, the Complaint alleges that their Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 16 of 35 Page 16 of 34 K.A. v. Upper Perkiomen Sch. Dist. alleged endangerment of [*9] the welfare of a child and failure to supervise were "willful" and "intentional." 10 The Complaint further alleges that defendants "knew" or "knowingly" engaged in the alleged breaches of duty. 11 While the "mere incantation" of the term willful misconduct is not sufficient to bring a claim within the realm of intentional tort, the standard is not as stringent as argued for by the Defendants. As explained in Hayes, the specific intent requirement may be met by showing that either the actor desired to bring about the result that followed or that the result was substantially certain to follow. 497 F. Supp. 2d at 705. Under the facts as pled, the Plaintiffs have alleged that at least six employees of the school district with knowledge of the misconduct reported said conduct to school district "policy-makers" including Mr. Wickard. 12 The Complaint further alleges that Mr. Wickard communicated said misconduct up the chain of command to Mr. Vigilante and Dr. Kirby. 13 The defendants are alleged to have known, or should have known, of the inappropriate conduct between K.A. and Mr. Miller, but consciously chose not to act. 14 It is clear that the Plaintiffs have included more than a mere [*10] token inclusion of the words "willful" and "intentional" into their complaint. Given the totality of facts as pled by the Plaintiffs and drawing all reasonable inferences there from, Plaintiffs' have pled sufficient facts to fall under the PSTCA's §8550 willful misconduct exception to damages liability. D. Punitive Damages Lastly, Defendants argue that punitive damages are not allowed under the PSTCA. As concluded supra, 10 Pls.'s Compl. ¶¶ 138, 139, 146, 147, 154, 155, 164, 165, 174, 175, 184, 185. 11 See, e.g., Pls.'s Compl. ¶ 137 ("Defendant . . . Wickard knowingly endangered the welfare of plaintiff K.A. . . .)(emphasis added). 12 Pls.'s Compl. ¶¶ 43-53. 13 Pls.'s Compl. ¶ 55. 14 E.g., Pls.'s Compl. ¶ 55-56. the Plaintiffs' claims with regards to counts V, VI, VII, VIII, IX, and X are not shielded by PSTCA because the Plaintiffs pled sufficient facts to bring their claims within the PSTCA's §8550 willful misconduct exception. Punitive damages may be recoverable as permitted under §8550 and relevant tort law. See Udujih v. City of Phila., 513 F. Supp. 2d 350, 358 (E.D. Pa. 2007)(holding that punitive damages are available under the PSTCA on claims alleging commission of intentional torts by [*11] individual public employees). RECOMMENDATION For the reasons set above, it is recommended that the Motion to Dismiss be DENIED for counts V, VI, VII, VIII, IX, and X, and GRANTED for counts XI, XII, XIII, XIV, XV, and XVI. BY THE COURT: /s/ M. FAITH ANGELL M. FAITH ANGELL UNITED STATES MAGISTRATE JUDGE End of Document Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 17 of 35 Messer v. First Fin. Fed. Credit Union United States District Court for the Eastern District of Pennsylvania July 30, 2012, Decided CIVIL ACTION NO. 11-4144 Reporter 2012 U.S. Dist. LEXIS 105997 *; 2012 WL 3104397 DIANE MESSER, a/k/a DIANE M. McCUTCHEON, and CHARLES MESSER, Plaintiffs, v. FIRST FINANCIAL FEDERAL CREDIT UNION OF MARYLAND, Defendant. Counsel: [*1] For DIANE MESSER, also known as DIANE M. MCCUTCHEON, CHARLES MESSER, Plaintiffs: ROBERT P. COCCO, LEAD ATTORNEY, LAW OFFICES OF ROBERT P. COCCO PC, PHILADELPHIA, PA; MATTHEW B. WEISBERG, WEISBERG LAW PC, MORTON, PA. For FIRST FINANCIAL FCU OF MARYLAND, Defendant: CAITLIN M. PICCARELLO, LEAD ATTORNEY, SAUL EWING, LLP, PHILADELPHIA, PA; KIMBERLY A. MANUELIDES, PRO HAC VICE, SAUL EWING, LLP, PHILADELPHIA, PA. Judges: CYNTHIA M. RUFE, J. Opinion by: CYNTHIA M. RUFE Opinion MEMORANDUM OPINION RUFE, J. Plaintiffs Diane Messer and Charles Messer bring claims against Defendant First Financial Federal Credit Union of Maryland ("First Financial") for willful violation of a bankruptcy discharge injunction, violations of the Pennsylvania Fair Credit Extension Uniformity Act and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, conversion, intentional infliction of emotional distress, and loss of consortium. Before the Court is Defendant's motion to dismiss Plaintiff's Second Amended Complaint. I. FACTUAL AND PROCEDURAL BACKGROUND In 2004 and 2005, Plaintiff Diane Messer 1 entered into five separate loan agreements with Defendant First Financial, including a six-year financing agreement to purchase a Toyota Prius [*2] (the "Vehicle Loan Agreement" or "Vehicle Debt"). On April 5, 2005, Plaintiff and her former husband, Michael McCutcheon, filed a bankruptcy petition in the United States Bankruptcy Court for the District of Maryland. 2 Plaintiff's Vehicle Debt was listed therein as secured debt, 3 and three other First Financial loans-in the amounts of $4,821.23, 1 Because the facts and claims in the Second Amended Complaint ("SAC") are primarily applicable only to Diane Messer, she will be referred to hereinafter as "Plaintiff." 2 Voluntary Petition, In re Michael Scott McCutcheon and Diane M. McCutcheon, No. 05-17860 (Bankr. D. Md. Apr. 5, 2005) (Bankr. Doc. No. 1). A court may take judicial notice of documents from a bankruptcy proceeding, and consider them on a motion to dismiss. See Ieradi v. Mylan Lab., Inc., 230 F.3d 594, 600 n.3 (3d Cir. 2000) ("Under Federal Rule of Evidence 201 we may take judicial notice at any stage of the proceeding of a fact not subject to reasonable dispute [*3] that is capable of accurate and ready determination by resort to a source whose accuracy cannot be reasonably questioned."). 3 Id. at 11 (Schedule D). Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 18 of 35 Page 18 of 34 Messer v. First Fin. Fed. Credit Union $409.34, and $883.08-were listed under "Unsecured Nonpriority Claims." 4 In October 2005, Plaintiff and her former husband were granted a bankruptcy discharge, and the bankruptcy proceeding was closed in April 2006. 5 Plaintiff alleges that she continued to make monthly payments on her Vehicle Debt, and made the final payment on or about May 5, 2011. Nonetheless, on May 17, 2011, her car was towed and repossessed by First Financial. The following day, Plaintiff called First Financial and spoke to loan repayment officer Donald Stewart, who agreed that Plaintiff had satisfied the Vehicle Debt, but told her that the car had been repossessed pursuant to a "cross-collateralization clause" in the Vehicle Loan Agreement which provided that the vehicle was to serve as collateral in the event Plaintiff defaulted on her other First Financial loans. In response to Plaintiff's questions, First Financial sent her a copy of a "Promissory Note and [Security] Agreement," which First Financial stated was an addendum to the Vehicle Loan Agreement. The Promissory Note contained a clause reading, in part, "Property given as security for this loan or for any other loan will secure all amounts I owe the Credit Union now and [*4] in the future." Plaintiff also received a letter dated May 17, 2011, stating she had until June 3, 2011, to redeem the car by paying First Financial $6,308.84. 6 After the redemption period passed, First Financial sold Plaintiff's car and its contents to satisfy her alleged remaining debt. Plaintiff asserts, however, that she never saw the Promissory Note or its cross-collateralization clause before the repossession, that the unsigned Promissory Note was fabricated by First Financial in a fraudulent attempt to justify the repossession, that no such addendum was attached to or integrated into either the Vehicle Loan Agreement or her other debt agreements at the time they were 4 Id. at 14 (Schedule F). 5 Bankr. Doc. Nos. 24 & 26. 6 Mot. to Dismiss, Ex. H (Doc. 13-1). executed, 7 and finally, that any debt remaining under her other loan agreements with First Financial was unsecured debt properly discharged in bankruptcy before her car was repossessed. Accordingly, she alleges, First Financial had no right to repossess or sell the vehicle. Both Plaintiff and her current spouse, Charles Messer, allege that they suffered severe emotional and physical distress as a result of First Financial's repossession of Plaintiff's car. Specifically, Plaintiffs allege that the wrongful repossession, in addition to causing stress, required them to lease a new vehicle. They allege that the presence of a new car in the parking lot of the church where Charles Messer is a clergyman caused gossip and speculation among the parishioners and an investigation into Mr. Messer's management of church funds. They further allege that anxiety resulting from this gossip and investigation caused Mr. Messer, who had suffered a stroke in December 2007, to experience bleeding of the brain on August 7, 2011, which required his hospitalization. In the Second Amended Complaint, 8 Plaintiff 7 Specifically, Plaintiff alleges that her own signed carbon copy of the Vehicle Loan Agreement contains no perforations to support an inference that the addendum was originally attached to and integrated into [*5] the one-page contract. SAC ¶ 31. 8 Plaintiffs filed their original Complaint on June 24, 2011, bringing claims for violations of the Fair Debt Collection Practices Act, the FCEUA, the UTPCPL, and conversion [Doc. No. 1]. Defendant moved to dismiss the Complaint [Doc. No. 11], and Plaintiffs filed a First Amended Complaint [Doc. No. 12], bringing claims for willful violation of the bankruptcy discharge injunction, violations of the FCEUA and the UTPCPL, conversion, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium by Mr. Messer. First Financial moved to dismiss the First Amended Complaint [Doc. No. 13] and Plaintiffs filed a response in opposition [Doc. No. 15], voluntarily withdrawing their claim for negligent infliction of emotional distress and including a cross-motion to amend the loss of consortium claim and file a Second Amended Complaint. The Court granted the cross-motion [*7] [Doc. No. 18]; however, rather than requiring complete re- briefing, the Court deemed the pending Motion to Dismiss re-filed as to the Second Amended Complaint [Doc. No. 19], noting that Plaintiffs' joint claim for negligent infliction of emotional distress was dismissed with prejudice as withdrawn and the loss of consortium claim was now correctly brought by Mrs. Messer. Now Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 19 of 35 Page 19 of 34 Messer v. First Fin. Fed. Credit Union Diane Messer asserts claims against First Financial for willful violation of the 2005 bankruptcy discharge injunction, pursuant to 11 U.S.C. § 524 (Count I); violations of the Pennsylvania Fair Credit Extension Uniformity Act ("FCEUA"), 73 Pa. Stat. §§ 2270.1, et seq. and the Pennsylvania Unfair Trade Practices and Consumer Protection Law [*6] ("UTPCPL"), 73 Pa. Stat. §§ 201-1 to 201-7 (Count II); and conversion (Count III). Both Mr. and Mrs. Messer bring claims for intentional infliction of emotional distress (Count IV), and Diane Messer brings a claim for loss of consortium as a result of her husband's injuries (Count V). II. STANDARD OF REVIEW To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" 9 and "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element" of a claim. 10 Specifically, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact) [*8] . . . ." 11 The question is not whether the plaintiff ultimately will prevail but whether the complaint is "sufficient to cross the federal court's threshold." 12 before the Court is Defendant's Motion to Dismiss, re-filed as to the Second Amended Complaint [Doc. No. 13], Plaintiffs' Opposition thereto [Doc. No. 20], Defendant's Reply [Doc. No. 21], and Plaintiffs' Sur-reply [Doc. No. 24]. 9 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)); see also Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1323, 179 L. Ed. 2d 398 (2011). 10 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (citing Twombly, 550 U.S. at 556) (internal quotation marks omitted). 11 Twombly, 550 U.S. at 555 (citations omitted). 12 Skinner v. Switzer, 131 S. Ct. 1289, 1296, 179 L. Ed. 2d 233 (2011) (citation omitted). At the motion to dismiss stage, a court In evaluating a challenged complaint, a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." 13 Although the Court must draw all reasonable inferences from the allegations in favor of the plaintiff, 14 it "need not accept as true [*9] 'unsupported conclusions and unwarranted inferences,'" 15 or the plaintiff's "bald assertions" or "legal conclusions." 16 III. DISCUSSION A. Violation of Bankruptcy Discharge Injunction; Violation of the FEUCA and the UPTCPL; and Conversion First Financial has moved to dismiss Plaintiffs' claims for conversion and violations of the bankruptcy discharge injunction, the FEUCA, and the UPTCPL, arguing that the cross- collateralization clauses in the Vehicle Loan Agreement and the other loan agreements are valid and enforceable under Maryland law, pursuant to Section 9-204(c) of the Uniform Commercial Code and Maryland case law. 17 Therefore, [*10] Defendant argues, all of Plaintiff's First Financial debts were secured by a lien on her vehicle and were not discharged in the bankruptcy determines only whether a plaintiff will be permitted to seek evidence in support of the claims in the complaint. See Twombly, 550 U.S. at 556, 558-59. 13 Phillips, 515 F.3d at 233 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002) (quotation marks omitted). 14 Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010). 15 Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183- 84 (3d Cir. 2000) (quoting City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998)). 16 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997) (quoting Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st Cir. 1996)) (quotation marks omitted). 17 Mot. to Dismiss at 6-7. Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 20 of 35 Page 20 of 34 Messer v. First Fin. Fed. Credit Union proceeding. 18 Consequently, Plaintiffs cannot maintain a claim sounding in unfair debt collection or conversion, because First Financial's repossession of her vehicle was legal. 19 However, these arguments depend upon the resolution of disputed issues of fact that the Court cannot reach on a motion to dismiss. Plaintiff does not claim that an existing cross-collateralization clause or lien is unenforceable or that her debt was unsecured despite such a clause; rather, she asserts that a cross-collateralization clause was not included in the Vehicle Loan Agreement, and that the documents First Financial has proffered in support of its Motion are fabrications. Accepting these factual allegations as true for purposes of the motion to dismiss, the existence of the cross- collateralization clauses is in dispute and the allegations are sufficient to state a cause of action for the claims in Counts I-III. B. Intentional Infliction of Emotional Distress To bring a claim for intentional infliction of emotional [*11] distress, a plaintiff must demonstrate: 1) that the defendant's conduct was extreme and outrageous, 2) that the conduct was intentional or reckless, 3) that the conduct caused emotional distress, and 4) that the resulting emotional distress was severe. 20 18 Id. at 8-9. 19 Id. at 9-11. 20 See Bruffett v. Warner Commc'ns, Inc., 692 F.2d 910, 914 (3d Cir. 1982) (citing Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979) (en banc)); Ruder v. Pequea Valley Sch. Dist., 790 F. Supp 2d 377, 397 (E.D. Pa. 2011). The Pennsylvania Supreme Court has not expressly recognized a cause of action for the tort of intentional infliction of emotional distress, but "has acknowledged its existence and has analyzed its elements in various respects." Weiley v. Albert Einstein Med. Ctr., 2012 PA Super 106, 51 A.3d 202, 2012 WL 1889634, at *10 n.12 (Pa. Super. Ct. 2012) (citing Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 n.10 (Pa. 1998); Kazatsky v. King David Mem'l Park, Inc., 515 Pa. 183, 527 A.2d 988, 988-89 (Pa. 1987)). Nor has the Pennsylvania Supreme Court formally adopted § 46 of the Restatement of Torts, but has cited this section "as setting forth the minimum elements necessary to sustain such a cause of action." Taylor v. Albert Einstein Med. Ctr., 562 Pa. 176, 754 A.2d 650, 652 (Pa. 2000) [*12] (citing To satisfy the first element, "[t]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." 21 "[C]ourts have been chary to allow recovery for a claim of intentional infliction of emotional distress." 22 It is "not [] enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that this conduct has been characterized by 'malice,' or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort." 23 The tort is instead "reserved by the courts for only the most clearly desperate and ultra extreme conduct." 24 Under Pennsylvania law, "it is for the court to determine in the first instance whether defendant's conduct can be reasonably regarded as so extreme and outrageous to permit recovery." 25 Here, Kazatsky, 527 A.2d at 988); see also Reedy v. Evanson, 615 F.3d 197, 231-32 (3d Cir. 2010) (recognizing intentional infliction of emotional distress as a tort in Pennsylvania). 21 Hoy, 720 A.2d at 754 (quoting Buczek v. First Nat'l Bank of Mifflintown, 366 Pa. Super. 551, 531 A.2d 1122, 1125 (Pa. Super. Ct. 1987) (internal quotation omitted). 22 Id. at 753. 23 Id. at 754 (citing Restatement (Second) of Torts § 46, cmt. d (1965)) (internal [*13] quotation omitted). 24 Id. For examples of circumstances in which courts have found extreme or outrageous conduct, see, e.g., Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118, 121 (Pa. 1970) (defendant, after striking and killing plaintiff's child with an automobile, failed to notify authorities or seek medical assistance and buried the body in a field, where it was discovered and returned to parents two months later); Chuy, 595 F.2d at 1274 (professional sports team physician knowingly provided the press with false information that plaintiff, a retiring player, was suffering from a fatal disease); Banyas v. Lower Bucks Hosp., 293 Pa. Super. 122, 437 A.2d 1236, 1238 (Pa. Super. Ct. 1981) (defendants intentionally fabricated documents to suggest that plaintiff had killed a third party, leading to plaintiff's indictment for homicide). 25 Corbett v. Morgenstern, 934 F. Supp. 680, 684 (E.D. Pa. 1996) (citing Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988); Restatement (Second) of Torts § 46, cmt. h). Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 21 of 35 Page 21 of 34 Messer v. First Fin. Fed. Credit Union Plaintiff alleges that First Financial repossessed and sold her car without legal justification, sent her a single notification letter informing her of the repossession and redemption policy, and thereafter [*14] fabricated loan documents to support the repossession. 26 If true, such actions are possibly fraudulent and certainly disgraceful; however, the Court does not find the conduct alleged comparable to that found to be sufficiently "extreme and outrageous" as defined by case law. 27 26 Defendant argues that its conduct cannot be considered extreme or outrageous because it repossessed Plaintiff's car lawfully. Mot. to Dismiss at 11-14. At the motion to dismiss stage, however, the Court is bound to accept as true Plaintiff's allegation that the loan agreements did not contain a cross-collateralization clause, and therefore cannot determine whether Defendant's conduct was "lawful." See, supra, Part III.A. 27 Courts in this district have suggested that unjustified foreclosure of a residential property might, in egregious circumstances, support a claim for intentional infliction of emotional distress, but even in that context have yet to find circumstances that meet the outrageous conduct requirement. See, e.g., Brown v. Udren Law Offices PC, No. 11-2697, 2011 U.S. Dist. LEXIS 102004, 2011 WL 4011411, at *4 (E.D. Pa. Sept. 9, 2011) [*15] ("Plaintiff alleges only that various documents related to the foreclosure action falsely indicated that Defendants had obtained a judgment against her. Plaintiff does not allege that she was not in default of her mortgage obligations. Plaintiff also does not allege that Defendants did not have the right to foreclose on the property. . . . [T]his conduct alone is not so outrageous, so extreme, or so beyond the bounds of decency to support a separate cause of action for [intentional infliction of emotional distress] under Pennsylvania law."); Numerof v. Cont'l Title Ins. Co., No. 87-6874, 1987 U.S. Dist. LEXIS 11902, 1987 WL 30135, at *5 (E.D. Pa. Dec. 24, 1987) ("In [the Court's] view, even if defendant did not have a right to foreclose, providing notice of intention to foreclose, would not, absent a clear showing of knowledge that there was no right to foreclose, provide a basis for a cause of action for intentional infliction of emotional distress."); Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa. Super. 377, 368 A.2d 770, 772-74 (Pa. Super. Ct. 1976) (even where defendants knew that foreclosure could not occur without a hearing and revival of judgment, threatening immediate foreclosure was not extreme or outrageous conduct); [*16] see also Wilson v. Am. Gen. Fin. Inc., 807 F. Supp. 2d 291, 303 (W.D. Pa. 2011) (defendants' untrue statements that plaintiff's accounts were past due as a result of untimely or delinquent payments, standing alone, are not sufficiently shocking or outrageous); Clay v. Option One Mortg. Corp., No. 07- 1327, 2007 U.S. Dist. LEXIS 69191, 2007 WL 2728972, at *5 (E.D. Pa. Sept. 18, 2007) (dismissing claim for emotional distress based on defendants' false listing of plaintiff as mortgagor in an advertisement for a sheriff's sale). Moreover, Plaintiffs' allegations are insufficient to establish the remaining elements of a claim for intentional infliction of emotional distress. The Third Circuit has concluded that, in Pennsylvania, "both intentional and negligent infliction of emotional distress require[] a manifestation of physical impairment resulting from the distress" 28 or "some type of resulting physical harm due to the defendant's outrageous conduct." 29 As to the severity of the resulting distress, "[t]he Pennsylvania Supreme Court has enunciated an objective standard, permitting recovery only 'where a reasonable person normally constituted would be unable to adequately cope with the mental stress engendered by [*17] the circumstances of the event.'" 30 A plaintiff must therefore "plead facts that would support an inference that the distress . . . suffered was the kind of unbearable mental anguish that rose to the level of severe emotional distress." 31 Here, both Plaintiffs assert simply that they 28 Fulton v. United States, 198 F. App'x 210, 215 (3d. Cir. 2006) (citing Reeves v. Middletown Athletic Ass'n, 2004 PA Super 475, 866 A.2d 1115, 1122-23 (Pa. Super. Ct. 2004)). 29 Reedy, 615 F.3d at 231 (quoting Swisher v. Pitz, 2005 PA Super 56, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005)) (quotation marks omitted); Allstate Prop. & Cas. Ins. Co. v. Vargas, No. 06-3368, 2006 U.S. Dist. LEXIS 95608, at *14 (E.D. Pa. Dec. 28, 2006) ("'[E]xtreme mental anguish, outrage, severe anxiety . . . painful embarrassment among her friends' do not constitute physical illnesses but rather are mental [*18] and psychic injuries for which Pennsylvania law offers no redress in the context of an intentional infliction of emotional distress claim."); Reeves, 866 A.2d at 1122-23 ("a plaintiff must suffer some type of resulting physical harm due to the defendant's outrageous conduct" (citing Fewell v. Besner, 444 Pa. Super. 559, 664 A.2d 577, 582 (Pa. Super. Ct. 1995))). But see McClease v. R.R. Donnelley & Sons Co., 226 F. Supp. 2d 695, 702- 703 (E.D. Pa. 2002) (holding that physical harm includes ongoing mental and emotional harm, and sustaining an intentional infliction of emotional distress claim where a plaintiff alleged only "serious emotional harm, psychological distress and damage" (citations and quotation marks omitted)). 30 Mastromatteo v. Simock, 866 F. Supp. 853, 859 (E.D. Pa. 1994) (quoting Kazatsky, 527 A.2d at 993). To survive summary judgment, competent medical evidence of both severity and causation is required. Kazatsky, 527 A.2d at 995. 31 Kist v. Fatula, No. 06-67, 2007 U.S. Dist. LEXIS 60615, 2007 WL Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 22 of 35 Page 22 of 34 Messer v. First Fin. Fed. Credit Union suffered "severe emotional distress." This conclusory allegation is insufficient to state a claim. Similarly, Plaintiffs' allegations that they suffered "extreme stress, anxiety and mental anguish," "embarrassment," "loss of sleep, [and loss of] appetite" are inadequate to support an inference that the emotional distress was severe, or beyond the ordinary. 32 While Charles Messer suffered an undoubtedly serious physical injury allegedly induced by emotional distress, Plaintiffs have failed to plead the requisite causal link between First Financial's actions [*20] and Mr. Messer's brain bleed, which occurred more than two months after the repossession of Mrs. Messer's car. Plaintiffs have not alleged that any of First Financial's actions were intentionally directed at Charles Messer, who was neither a party to any loan agreement with First Financial nor the owner of the car. Rather, Plaintiffs explain that Mr. Messer's injury was the result of anxiety caused primarily by the malicious gossip of his parishioners and the investigation into his management of church funds. Plaintiffs contend that the gossip and investigation were instigated by the presence of a new car in the church parking lot, which Plaintiffs themselves leased to replace the repossessed Toyota Prius. As alleged, First 2404721, at *22 (W.D. Pa. Aug. 17, 2007). 32 See Schuster v. Twp. of N. Sewickley, No. 12-00333, 2012 U.S. Dist. LEXIS 80853, 2012 WL 2116574, at *5 (W.D. Pa. June 11, 2012) ("Plaintiffs' Amended Complaint merely asserts conclusory statements that Plaintiffs [*19] suffered 'sever [sic] emotional and psychological distress, humiliation, shame, embarrassment, and inconvenience.' . . . [N]either Plaintiffs' conclusory statements regarding severe emotional distress, nor Plaintiffs' allegations of humiliation, embarrassment, or inconvenience, are sufficient to demonstrate that the severity goes beyond that which any reasonable man could be expected to endure." (alterations in original, citation omitted)). But see Lane v. Cole, 88 F. Supp. 2d 402, 407 (E.D. Pa. 2000) ("Severe emotional distress includes 'fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea.' Such emotional distress must also be accompanied by some physical manifestation. Plaintiffs' allegations that they continue to suffer 'fear, anxiety, stress, anger, headaches, nightmares, humiliation, embarrassment, emotional distress [and] mental anguish' are sufficient to raise an inference of severe emotional distress." (citations omitted)). Financial's actions are insufficiently proximate to Mr. Messer's injuries to establish the requisite elements of intent and causation. 33 C. Loss of Consortium Plaintiff Diane Messer has brought a loss of consortium claim based on the injuries suffered by her husband, Charles [*21] Messer. Under Pennsylvania law, a loss of consortium claim is necessarily derivative of a claim by the injured spouse; accordingly, it is "always dependent upon the injured spouse's right to recover." 34 Here, the injured spouse, Charles Messer, brings only a claim for intentional infliction of emotional distress. Because the Court has held that First Financial's conduct was not outrageous enough to support that emotional distress claim, and that Plaintiffs cannot plead the elements of intent and causation as to Mr. Messer's injury, Diane Messer's loss of consortium claim must also fail. IV. CONCLUSION For the foregoing reasons, the Court will grant Defendant's Motion to Dismiss Plaintiffs' claims for Intentional Infliction of Emotional Distress (Count IV) and Loss of Consortium (Count V) and deny the Motion to Dismiss in all other respects. An appropriate Order follows. ORDER AND NOW, this 30th day of July 2012, upon consideration of Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint [Doc. No. 13]; [*22] Plaintiffs' Response in Opposition thereto [Doc. No. 20]; Defendant's Reply [Doc. No. 33 See generally Brown v. Phila. Coll. of Osteopathic Med., 2000 PA Super 262, 760 A.2d 863, 868-69 (Pa. Super. Ct. 2000) (discussing causation in the context of a claim for negligent infliction of emotional distress). 34 Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 206 (3d Cir. 2001) (quoting Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 495 A.2d 552, 554 (Pa. Super. Ct. 1985)) (quotation marks omitted). Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 23 of 35 Page 23 of 34 Messer v. First Fin. Fed. Credit Union 21]; and Plaintiffs' Sur-Reply [Doc. No. 24]; and for the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED that Defendant's Motion is GRANTED in part and DENIED in part, as follows: 1. Defendant's Motion is GRANTED as to Count IV (Intentional Infliction of Emotional Distress); accordingly, (a) as to Plaintiff Charles Messer, Count IV is DISMISSED with prejudice; and (b) as to Plaintiff Diane Messer, Count IV is DISMISSED without prejudice, with leave to amend within twenty-one (21) days of the date of this Order; and 2. Defendant's Motion is GRANTED as to Count V (Loss of Consortium), which is DISMISSED with prejudice; and 3. Defendant's Motion is DENIED as to Counts I- III. It is so ORDERED. BY THE COURT: /s/ Cynthia M. Rufe CYNTHIA M. RUFE, J. End of Document Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 24 of 35 Rementer v. Kellogg Co. United States District Court for the Eastern District of Pennsylvania October 1, 2015, Decided; October 1, 2015, Filed CIVIL ACTION NO. 14-1340 Reporter 2015 U.S. Dist. LEXIS 133700 *; 2015 WL 5737325 TRICIA REMENTER, Plaintiff, v. KELLOGG COMPANY and, KELLOGG USA INC., Defendants. Counsel: [*1] For TRICIA REMENTER, Plaintiff: TIMOTHY R. HOUGH, LEAD ATTORNEY, DIANNE L. ELLIOTT, JAFFE & HOUGH, PHILADELPHIA, PA. For KELLOGG COMPANY, KELLOGG USA INC., Defendant: LAWRENCE J. MURPHY, LUIS E. AVILA, LEAD ATTORNEYS, VARNUM LLP, GRAND RAPIDS, MI; BRIAN G. WELSH, CARL D. BUCHHOLZ, III, RAWLE & HENDERSON LLP, PHILADELPHIA, PA. Judges: WENDY BEETLESTONE, J. Opinion by: WENDY BEETLESTONE Opinion MEMORANDUM OPINION I. INTRODUCTION Plaintiff Tricia Rementer alleges in this employment discrimination action that Defendants Kellogg Company and Kellogg USA Inc. (together, "Kellogg") violated her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Pennsylvania Human Relations Act, 42 Pa. Cons. Stat. § 951 et seq.1; and, under Pennsylvania state law, is liable for intentional infliction of emotional distress and negligent hiring. Plaintiff alleges that while she was employed at Kellogg she was subjected to hostile work environment sexual harassment and retaliation culminating in the termination of her employment in March 2012. Defendants have filed a motion for summary judgment on every claim. II. FACTUAL BACKGROUND A. Plaintiff's Job Function Plaintiff began working for Kellogg [*2] in March 2006 as a Territory Service Representative ("TSR"). Joint Appendix ("JA") 310. In June 2009, she moved into the role of Retail Sales Manager ("RSM") in the Eastern Zone of the Direct Store Delivery ("DSD") Snacks Division. She remained as an RSM until March 5, 2012, when she was fired. As an RSM, Plaintiff's primary function was to "sell and manage the merchandising of Kellogg DSD products within a specified geographic area to deliver quarterly/yearly sales budget and growth targets." JA 35. As such, her job was to develop business relationships with individual stores in her region, e.g., Target, ACME, Pathmark, etc., to place Kellogg's snack products on these client stores' shelves and thereby grow Kellogg's sales 1 The Third Circuit treats Title VII and PHRA claims coextensively. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 25 of 35 Page 25 of 34 Rementer v. Kellogg Co. according to specified metrics. To accomplish these goals, Plaintiff managed TSRs and part-time workers ("PTWs") to handle inventory and merchandising duties, among other responsibilities. JA 35-37. More specifically, she was responsible for holding TSRs and PTWs accountable for proper inventory rotation and levels; establishing rapport with store management; partnering with her District Managers ("DMs") to "improve delivery efficiencies and optimize customer service [*3] levels"; and assisting with merchandising when necessary, including building displays, rotating product, merchandising on shelves, etc. Id. Kellogg's DMs evaluate an RSM's performance by conducting "coaching trips" or store visits to obtain a visual understanding of how well an RSM is managing product within a client store and to meet with the client store managers to assess their needs and the relationships with their RSMs. See, e.g., JA 5, 38, 45-47, 101. An RSM's relationship with her client store managers is critical to her success at Kellogg as the company maintains a long-standing policy of discharging DSMs who are "fired" from any of the client stores they service. JA 6, 17, 57. In some instances, if a client store manager threatens to fire an RSM, the DM will attempt to convince the manager to withdraw the request. See, e.g., JA 183, 219. However, if the client store manager is not persuaded to let the RSM continue serving the client store, the RSM is terminated from Kellogg. Id. B. Plaintiff's Work History During her tenure as an RSM, Plaintiff was supervised primarily by three DMs: James Kern (2009-2010), Mark Vaspoli (2011), and Joseph Tricome (late 2011-2012). Each of these [*4] DMs documented similar concerns concerning Plaintiff's performance. In 2009, 2010, and 2011, Plaintiff received a year-end performance grade of "C - Did Not Meet Expectations." JA 44, 48-50, 200, 226, 296-97. Moreover, Plaintiff was threatened with removal from client stores while reporting to each of her three DMs. JA 39, 45, 57, 154. Until the last demand for removal from a client store in March 2012, Plaintiff's DMs were able to persuade the stores to allow Plaintiff to continue. 1. Performance under James Kern (2009-2010) On September 3, 2009, shortly after starting in her RSM role, James Kern, Plaintiff's DM and direct supervisor, issued her a memo informing Plaintiff that he was "very concerned about proper communication levels on [her] territory" and noting that there had been "complaints and orders refused" at "66% of [Plaintiff's] total business." JA 38. On October 19, 2009, Kern issued Plaintiff a memo notifying her that "over the past several months there have been instances of running out of product or ordering wrong product into the [Pathmark Frankford Avenue] store . . . ." JA 39. Kern further advised Plaintiff that "the store will no longer tolerate what they view as poor [*5] service." Id. Kern specifically noted to Plaintiff that if she were removed from the store "company policy states that you cannot sufficiently fulfill the obligation for your job and action will be taken up to termination." Id. At the end of 2009, Kern rated Plaintiff's performance "C - Did not meet expectations." JA 40-44. In October 2010, Kern conducted a "coaching trip" of three of Plaintiff's client stores and documented his findings in a memo to Plaintiff. JA 45-47. In the memo, Kern highlighted feedback he received, including "lack of communication" with the client store managers; a grade of 5/10 for service issues with ordering product, communication and follow through; and, significantly, a request by Wal-Mart Franklin Mills to replace Plaintiff as the service manager for that store. Id. Kern noted that he spoke to the manager and was able to avoid having Plaintiff removed as the sales representative for that store. Id. At the end of 2010, Kern again rated Plaintiff's performance "C - Did not meet expectations." JA 48-50. In Plaintiff's evaluation, Kern wrote that Plaintiff "has not had a successful year in 2010 in Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 26 of 35 Page 26 of 34 Rementer v. Kellogg Co. the area of metric accomplishments, including driving sales, managing [*6] inventory and variable labor use." JA 49. Kern further stated that Plaintiff had "poor communication with several store managers" that led to "missing additional selling opportunities," and that she offered "poor planning and direction to TSRs and PT[W]s," thereby overusing her variable labor hours." Id. 2. Performance Under Mark Vaspoli In early 2011, Mark Vaspoli took over as Plaintiff's DM. JA 263. On April 4, 2011, Vaspoli sent Plaintiff an email documenting his observations from a visit to one of Plaintiff's client stores. JA 51-53. Vaspoli noted that the "back stock was out of control, unorganized and over loaded" and that the "receiver was totally upset and disappointed with us." Id. On June 15, 2011, Vaspoli sent Plaintiff an email addressing various problems with her work and noting that her "next follow up will be a written PIP [Performance Improvement Plan] if these issues are not addressed." JA 133-34. Vaspoli copied his supervisor, Zone Manager John Keane, on his email to Plaintiff. Id. That same day, Vaspoli emailed Trish Burgett, Kellogg's Senior Employee Relations Specialist, that he would "like to move forward and put Trish on a PIP." JA 132-34. On June 16, 2011, Burgett forwarded [*7] Vaspoli's June 15, 2011 email to Melanie Blumberg in Human Resources, noting that Vaspoli "stated he has concerns about [Plaintiff's] performance and wanted me to review what he has so far to see if we are ready to progress to a PIP." JA 132. Burgett then responded to Vaspoli by email and asked if he had "more documentation" regarding Plaintiff, including her year-end performance review for 2010. JA 135. In the same email, Burgett advised Vaspoli to "see how [Plaintiff] reacts" to his June 15, 2011 email and "[g]ive her a couple of weeks to complete the deliverables." Id. On June 20, 2011, Plaintiff complained to Blumberg about issues she was having with Vaspoli. JA 102. Plaintiff complained that Vaspoli was "always out on [her] territory" and was "undermining [her] in [her] stores." JA 13. As an example of this behavior, Plaintiff discussed "the way [Vaspoli] would talk to [her] in the stores and how [she] was running [her] stores." Id. Finally, Plaintiff complained (and no one disputes) that Vaspoli continued to refer to her as "girlfriend" on several occasions despite Plaintiff's request that he stop it. JA 23. At no point did Plaintiff complain about conduct by Vaspoli of a sexual nature. [*8] JA 28, 30-31. Following her meeting with Plaintiff, Blumberg reported Plaintiff's complaints to Zone Manager Keane, who then counseled Vaspoli on "speak[ing] to everybody professionally" and instructed him to stop addressing her as "girlfriend." JA 93, 177, 266. Vaspoli apologized to Plaintiff and stopped using the term "girlfriend." JA 23, 266. On June 24, 2012 Vaspoli sent an email to Blumberg and Keane seeking guidance concerning how to respond to Plaintiff, who had just complained that her knee was hurting, given that the injury could potentially be work-related. JA 289. Vaspoli noted: "I do not like 'Managing on [e]gg shells' but understand that I need to manage her differently." Id. Plaintiff's knee pain did not become a further issue. In August 2011, one of Plaintiff's stores threatened to "throw [her] out for poor performance," which Vaspoli and Keane explained to Plaintiff would, under Kellogg's policy, result in her termination if they were unable to convince the store manager to change his mind. JA 57-63. On August 22, 2011, Vaspoli and Keane met with the store manager to discuss the store's concerns regarding Plaintiff's work quality. Id. Keane subsequently drafted a letter to Plaintiff [*9] describing his conversation with the store manager. Id. Keane noted that the client "was again concerned with [Plaintiff's] ability to effectively manage his store" and noted that "his biggest issue was [Plaintiff's] lack of responsiveness" with regard to delivery issues. Id. Keane further noted that he had visited additional Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 27 of 35 Page 27 of 34 Rementer v. Kellogg Co. stores serviced by Plaintiff and found one of them to be "in very bad shape from a merchandising perspective." Id. Keane added that "this continues to be a trend with your stores. This is another case of poor ordering, and ability to manage the account effectively." Id. On September 7, 2011, Plaintiff met with Blumberg and Keane to "review the status of her performance" and discuss ways she could improve. JA 94. Following that meeting, Plaintiff was provided with a "Retail Sales Manager Best Practices Tool Kit," which was designed to assist Plaintiff in improving her performance. JA 19, 94- 95, 105-122. On October 9, 2011, Vaspoli copied Blumberg on an email exchange with Plaintiff in which he chastised Plaintiff for not handling an issue at a Genuardi's supermarket over the weekend. JA 140- 44. Vaspoli wrote: "Trish, [t]hanks for getting back with me.....in the time you [*10] took composing the email [to me,] you could have reached out to Dave and serviced your customer. . . . [I]t is your responsibility to assist your customers, even on your day off if you have not properly communicated to him or the store with any issues or problems . . . so they are informed." Id. Two days later, Plaintiff reached out to Burgett. JA 138. Plaintiff complained that she still had "ongoing issues" with Vaspoli and stated that "things were escalating not getting better." Id. Plaintiff told Burgett that Vaspoli told her she was "the worst" RSM in her district and described the incident on October 9. Id. Burgett's notes from that conversation indicate that a "[r]eview of [Plaintiff's] metrics indicate she is near/at the bottom of most metrics." Id. (emphasis added). Burgett also "warned [Plaintiff] that [by not attending to Vaspoli's request on October 9] she was defying a direct request from her manager, which could be considered insubordination." Id. At no point during this conversation did Plaintiff complain that Vaspoli was harassing her in a sexual manner. On October 31, 2011, Vaspoli contacted Human Resources to request again that Plaintiff be placed on a PIP. JA 283. That request [*11] was reviewed and approved. Id. On November 3, 2011, Plaintiff was placed on a 90-day PIP. JA 82-86. As part of the 90-day PIP, Vaspoli was required to review Plaintiff's progress after thirty days. On December 14, 2011, Vaspoli attempted to send an email to Blumberg, Burgett, and Keane to give a "quick up-date on Tricia Rementer's 90 PIP." JA 145-46. Vaspoli noted that he had "been keeping weekly notes on issues and things that have been popping up over the past 4 weeks." Id. Vaspoli's email also notes: "I also have attached the powerpoint document on our meeting with the Genaurdi's [sic] team. As you will see he wanted her replaced and I got her back into the store with this program that I set up for her. There are many refusals that have come out of her stores over the past 30 days that I am currently pulling info on but I have over 6 so far." Id. Vaspoli concluded that "based on this info alon[e] I am recommending that we term[inate] but will wait to hear your thoughts. I am not seeing any improvements, I actually think she has given up at this point." Id. Later that day, Vaspoli noticed that he had "screwed up" and sent the email recommending Plaintiff's termination to an RSM named John Kent (one [*12] of Plaintiff's peers) instead of his boss and intended recipient, John Keane. JA 147. Vaspoli explained that he asked Kent to delete the email concerning Plaintiff and not discuss it with anyone. JA 151. However, the email was not contained and Plaintiff and her peers became aware of the email and its contents. Id. Due to this incident, Vaspoli was removed as Plaintiff's DM. 3. Performance Under Joe Tricome Joe Tricome took over as Plaintiff's DM in December 2011. JA 152. Tricome testified at his deposition that Keane asked him to take over managing Plaintiff because of "an issue with an email sent out inadvertently." JA 215. Tricome Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 28 of 35 Page 28 of 34 Rementer v. Kellogg Co. noted that he "wasn't privy to what the email said, the content, who got it or what happened, but [Keane] felt that in fairness to [Plaintiff] that it would probably be best to remove Mark [Vaspoli] from that situation and have me manage her." Id. The record indicates that in order to effectuate the transition, Tricome met with Vaspoli and Keane. During that meeting, Tricome learned that Plaintiff was on a PIP. JA 216. Tricome did not recall being told that Plaintiff made complaints to Human Resources on her own behalf. Id. Regarding Plaintiff's complaints [*13] concerning Vaspoli, Tricome testified: "I don't really know that I was aware that [Plaintiff] had made complaints about [Vaspoli]. I was just brought into this because of the erroneous email and the subsequent chain of events that for fairness sake - if you want to use that word - they wanted me to be more - they wanted a[n] objective person viewing - managing [Plaintiff]." Id. At the end of 2011, Plaintiff's Performance Management Form showed a rating of "C - Did not meet expectations." JA 226. On January 3 and 4, 2012, Tricome conducted a two-day visit to Plaintiff's stores. JA 217, 228-49. Tricome documented his visit, noting, among other things, that "[b]ack [s]tock was excessive and piled in an un-safe manner," "outdated product was on shelf," "back stock was heavy with sixty (60) pieces and it is the wrong items," "[Plaintiff's] car [was] parked contrary to company policy." JA 228- 49. Tricome spoke with the Assistant Manager of one of Plaintiff's client stores, who expressed "concerns about [Plaintiff's] work ethic and ability." JA 235. Tricome concluded his evaluation by noting, "Trish[, in] the two (2) days I spent on your territory there were not too many positives." JA 236. Tricome testified [*14] that this two-day field visit was the only time he worked with Plaintiff. JA 217. On January 5, 2012, Plaintiff attended a 30-day follow-up meeting with Tricome and Vaspoli concerning her PIP. JA 280-81. Plaintiff objected to Vaspoli's presence. Id. Vaspoli testified at his deposition that he attended the meeting because he wrote the PIP document, but that he intended to let Tricome take over with respect to the 60 and 90- day follow-ups. Id. Tricome testified that he was aware that Plaintiff did not want Vaspoli to attend the meeting. JA 217. Tricome further testified that he did not understand why Vaspoli attended, and he did not find out why Plaintiff did not want Vaspoli there. Id. On or around January 19, 2012, Plaintiff took administrative leave. JA 283. On February 3, 2012, Tim McHugh, a store manager for the Pathmark on Frankfurt Avenue, requested that Plaintiff no longer service his store. JA 154. The facts surrounding McHugh's request are in dispute. Tricome testified that he received word from Tim Carolan, the TSR who had taken over Plaintiff's role while she was on administrative leave, that McHugh wanted to speak with him. JA 218. After Carolan told him that the request was [*15] urgent, Tricome drove to the Pathmark to meet McHugh in person. Id. Tricome testified that when he arrived at the store, he met McHugh and two other individuals, who were "just generally upset with our service, stale product, back stock, and it was an ongoing issue." Id. Tricome testified that McHugh told him that "he had had these issues before with Trish. He had thrown her out of the store before and let her back in and he had had it and that was it. He wanted another sales rep. And he understood that she was currently out and that [Carolan] was running the territory and he said when she comes back, he didn't want her back." Id. Tricome noted that he did not attempt to talk Plaintiff back into the store. JA 219. In his words, "they were irate and it was not a pleasant conversation." Id. Tricome's contemporaneous email to Burgett and Blumberg provides the same narrative. JA 250-51 ("Tom will not allow [Plaintiff] back in his store. He said he understood that she was currently out, and insisted that when she come back, she could not service his store."). McHugh testified that although he does not recall Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 29 of 35 Page 29 of 34 Rementer v. Kellogg Co. who initiated the phone call, he remembers that he "complained first about [Plaintiff's] [*16] service" and that he told Plaintiff's supervisor at the time "to get somebody else because she wasn't doing her job." JA 203-04. When asked what was wrong with Plaintiff's performance, McHugh testified that "the service was poor" and that "the shelves [were] empty" and "[did] not hav[e] sale items [on them]." Id. McHugh reiterated that the reason he requested Plaintiff's removal was that "the shelves [were] empty, [Plaintiff's] not bringing product in, I'm losing sales. It's as simple as that. I can't make it any simpler." JA 203-05. McHugh further explained that his request was based upon a "continuous" period of poor service, stating "I'm not going to kick somebody out because one day I walked down and the shelf is empty. Things happen, the truck was late or whatever. It's over a period of time." JA 204-05. When asked why he complained about Plaintiff while she was out on administrative leave, McHugh speculated that his complaint would have been: [a]typical on the point if it was the first offense or something like that. If it had been going on over a period of time, yeah, I would complain about it, because, obviously, if she was out for 60 days, I probably wouldn't want her back at that point, since [*17] she wasn't there for 60 days. And if I noticed a better result in service and appearance of product on the shelf, I would make a recommendation that I don't want her back in that case, because, obviously, the fill-in did a lot better job. JA 207. However, McHugh could not recall if that was what specifically happened in Plaintiff's case. Id. Plaintiff speculates that the episode with McHugh was not initiated by McHugh, but, rather, by Tricome. To summarize Plaintiff's version of the events, Tricome deliberately sought out information from Plaintiff's former supervisor, Kern, as to which store would be likely to request Plaintiff's removal. See Opp'n at 4. Having learned from Kern that McHugh would likely make this request, Tricome then solicited Plaintiff's removal from McHugh and thereby ensured her termination. See id. Kern's testimony supports Plaintiff's narrative. Kern testified that at some point in time, Tricome contacted him regarding Plaintiff "looking for stores that would kick [Plaintiff] out." JA 191. Kern further testified that Tricome told him "HR was taking a long time to get rid of her and this got dumped into his lap." Id. Defendants challenge Kern's credibility as a [*18] witness given the fact that he was also terminated from Kellogg and filed a lawsuit against Defendants for unlawful discharge. Reply at 5. On March 5, 2012, Plaintiff returned from administrative leave. JA 131. Tricome met her at one of her stores and advised her that she was terminated. Plaintiff responded that this decision "doesn't come as any surprise." JA 27. III. LEGAL STANDARD "[S]ummary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Alabama v. North Carolina, 560 U.S. 330, 345, 130 S. Ct. 2295, 176 L. Ed. 2d 1070 (2010) (citations and internal quotation marks omitted). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof." Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322- 26, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson, 477 U.S. at 248-52). A fact is material if it might affect the outcome of the suit under the governing law. Scheidemantle v. Slippery Rock Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 30 of 35 Page 30 of 34 Rementer v. Kellogg Co. Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). "The reviewing court should view the facts in the light most favorable [*19] to the non-moving party and draw all reasonable inferences in that party's favor." Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013). However, to prevail on a motion for summary judgment, "the non-moving party must present more than a mere scintilla of evidence; 'there must be evidence on which the jury could reasonably find for the [non- movant].'" Jakimas v. Hoffmann-LaRoche, Inc., 485 F.3d 770, 777 (3d Cir. 2007) (alteration in original) (quoting Anderson, 477 U.S. at 252). In other words, "[t]he non-moving party may not merely deny the allegations in the moving party's pleadings; instead he must show where in the record there exists a genuine dispute over a material fact." Id. (citing Celotex, 477 U.S. at 322-26). IV. DISCUSSION A. Sexual Harassment / Hostile Work Environment Title VII prohibits an employer from "discriminat[ing] against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a). To maintain a hostile work environment sexual harassment claim under Title VII as Plaintiff seeks to do here, she must establish that: (1) she suffered intentional discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that [*20] position; and (5) the existence of respondeat superior liability. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). With respect to the first element, Plaintiff argues that the evidence supports a finding that Mark Vaspoli intentionally discriminated against her because of her sex by: (1) appearing at Plaintiff's store unannounced to meet with her; (2) requesting that she provide him with an itinerary of "everything that needed to be done at the stores in her territory prior to her vacation"; (3) asking her to sit next to him at business meetings; (4) routinely disparaging her to store managers in her territory by making statements that she could not do her job because she was female; and, (5) repeatedly referring to her as "girlfriend" during his first few months as her supervisor. See Opp'n at 7. Defendants argue that Plaintiff has not established the first element of her hostile work environment claim, in some instances because the record does not support Plaintiff's contention that Vaspoli took the actions she claims he did, and, in any event, because Plaintiff has produced no evidence that Vaspoli's actions constitute intentional gender discrimination. Mot. at 13-14; Reply at 2-3. A review of the record supports Defendants' conclusion. [*21] Aside from her own assertions that Vaspoli treated her differently than her male counterparts because she is a woman, see, e.g., JA 3, 14, 30-31, Plaintiff has pointed to no direct or circumstantial evidence that gender was a "substantial factor" in how she was treated. Andrews, 895 F.2d at 1485 (holding that to make out a case under Title VII, Plaintiff must show "that gender is a substantial factor in the discrimination, and that if the plaintiff 'had been a man she would not have been treated in the same manner."). Plaintiff concedes that Vaspoli never said anything to her of a sexual nature or touched her in a sexual manner. JA 28. Although "[t]o constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones in every instance or that each incident be sufficiently severe to detrimentally affect a female employee," Plaintiff must, nevertheless, establish other conduct reflecting "[i]ntimidation and hostility toward women because they are women." Andrews, 895 F.2d at 1485 (emphasis added). She has not done so. With respect to Plaintiff's allegations that Vaspoli "nitpicked" or "undermined" her by appearing at her stores unannounced or requiring an itinerary before she took leave, see, e.g., JA [*22] 14, Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 31 of 35 Page 31 of 34 Rementer v. Kellogg Co. Plaintiff's deposition reveals that she bases her conclusion that Vaspoli treated her differently than her male counterparts on a handful of conversations with three of the twelve RSMs under Vaspoli. JA 29. Significantly, Plaintiff admitted that she has no other evidence that Vaspoli treated men in her district with similar work performance differently. Id. Plaintiff further admitted that she does not know if Vaspoli appeared at any of her peer RSM's stores unannounced, and she did not see any documents that her peer RSMs gave Vaspoli before taking vacation and therefore does not know the level of detail Vaspoli required of his male RSMs. JA 29- 30. Nor has Plaintiff pointed to any record evidence from any other RSMs working under Vaspoli, male or female. Thus, Plaintiff has failed to show that Vaspoli's attention to her work performance was substantially different from his attention to Plaintiff's male colleagues. Moreover, even if Plaintiff's testimony that Vaspoli treated her differently were true, Plaintiff has failed to establish that the reason Vaspoli treated her differently was due to her gender and not a non- discriminatory reason such as Plaintiff's documented poor performance. [*23] Indeed, the record shows that Plaintiff had consistently received negative feedback and reviews from her supervisor dating back to 2009, when she was supervised by Kern, see, e.g., JA 38-39, 40-44, 45- 47, which continued when she was supervised by Vaspoli in 2011. See, e.g., JA 51, 54-56. In addition, Plaintiff received critical feedback from Keane, Vaspoli's direct supervisor. See, e.g., JA 57- 63. Given this record evidence, Plaintiff's conclusion that Vaspoli treated her differently because of her gender is untenable. Turning to Plaintiff's allegation that Vaspoli requested that Plaintiff sit next to her at meetings, Plaintiff has produced no evidence that Vaspoli's actions were intended to sexually harass or intimidate her. To the contrary, at her deposition, Plaintiff admitted that Vaspoli never touched her at those meetings, and she never asked him why he wanted her to sit next to him. JA 28. Furthermore, Plaintiff conceded that in all but one instance Plaintiff and Vaspoli were the only two people present at the meeting, and Vaspoli merely invited Plaintiff to sit in the chair next to his. JA 28-29. Even if true, then, Plaintiff's allegations do not amount to intentional discrimination [*24] based on her gender, and, given the evidence adduced by Plaintiff, did not occur at a frequency great enough to constitute a "pervasive and regular" condition of Plaintiff's work environment. Andrews, 895 F.2d at 1482. Plaintiff's allegation that Vaspoli "routinely disparaged her" to store managers is equally unsupported by the record. At her deposition, Plaintiff could only identify one store manager to whom she claims Vaspoli disparaged her, and despite working with this manager "for the entire time [she has] been on the territory," Plaintiff could not recall his name. JA 14. Moreover, Plaintiff admitted that she was not privy to any particular conversation between Vaspoli and this manager, but merely heard from her colleagues that "[Vaspoli] would talk about[her] behind [her] back." Id. Plaintiff did not attempt to obtain a statement from this, or any, manager and has pointed to no admissible evidence in the record that Vaspoli in fact made such statements. Thus, Plaintiff has failed to establish intentional discrimination relating to any such comments. Finally, with respect to Plaintiff's allegation that Vaspoli frequently referred to her as "girlfriend," the record does support a conclusion that Vaspoli used the [*25] term "girlfriend" over the course of several months and that Plaintiff was upset by it. JA 23, 92, 266. However, even if Vaspoli's habit was offensive, annoying and undoubtedly unwelcome, it stopped as soon as she brought it up with HR and HR read him the riot act. JA 28. Having concluded that Plaintiff cannot establish a prima facie case with respect to any of her allegations of intentional discrimination, the Court will grant Defendants' motion with respect to her hostile work environment claim. Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 32 of 35 Page 32 of 34 Rementer v. Kellogg Co. B. Sexual Harassment / Retaliation Plaintiff's claims of unlawful retaliation under Title VII must be analyzed under the burden-shifting paradigm established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under that standard, to succeed on her claim of unlawful retaliation, Plaintiff must demonstrate: (1) she engaged in an activity protected by Title VII; (2) after or contemporaneous with engaging in that conduct, Defendant took an adverse action against her; (3) the adverse action was "materially adverse"; and (4) a causal link exists between her participation in the protected activity and the Defendants' adverse action. Hare v. Potter, 220 F. App'x 120, 127 (3d Cir. 2007). If Plaintiff establishes a prima facie case, and Defendants point to a non-discriminatory reason for the materially [*26] adverse action, the burden shifts back to Plaintiff to prove that the non- retaliatory or non-discriminatory reason is merely a pretext for discrimination. Id. Here, Plaintiff has failed to adduce evidence in support of her prima facie case of retaliation. Even assuming arguendo that Plaintiff engaged in protected activity by complaining to Blumberg about Vaspoli on June 20, 2011, see Opp'n at 11- 13, the evidence does not support a causal connection between that activity and the two materially adverse actions identified by Plaintiff, i.e., her placement on a PIP in November 2011 and ultimate termination in March 2012.2 To 2 There is some disagreement among the parties as to what specifically Plaintiff contends are the materially adverse actions Defendants took against her. However, it appears from Plaintiff's sur-reply memorandum that she identifies two events as materially adverse: (1) "placement of the Plaintiff on a PIP," which, (2) "ultimately led to her termination." Sur-Reply at 3. Defendants argue that Plaintiff's placement on a PIP was not a materially adverse employment action because it did not alter the conditions of her employment. Reply at 3. "Materially adverse" in the context of a retaliation claim means an action that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Hare, 220 F. App'x at 128 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 54, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006); Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006)). "Stated differently, a plaintiff may meet her burden demonstrate a link between a protected activity and an employer's adverse action, a plaintiff may rely on the temporal proximity between the two if "unusually suggestive" of retaliation. Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 196-97 (3d Cir. 2015) (citations omitted). In the absence of such a close temporal proximity, the Court may consider the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action. Id. (citations omitted). [*27] The plaintiff, however, cannot establish that there was a causal connection without some evidence that the individuals responsible for the adverse action knew of the plaintiff's protected conduct at the time they acted. Id. And, above all, "each case must be considered with a careful eye to the specific facts and circumstances encountered." Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n.5 (3d Cir. 2000). Turning first to Plaintiff's placement on a PIP, the record indicates that the temporal proximity between Plaintiff's conversation with Blumberg about Vaspoli on June 20, 2011 and her placement on a PIP on November 3, 2011, four and a half months later, is not "unusually suggestive." Looking at the record as a whole, it is clear that Vaspoli sought to place Plaintiff on a PIP prior to the time she engaged in any protected activity and reiterated his request only after several more months of documented poor performance. Indeed, on June 15, 2011, Vaspoli sent Plaintiff an email addressing various problems with her work and noting that her "next follow up will be a written PIP if these issues are not addressed." JA 14, 133-34. by demonstrating that her employer's conduct is "likely to deter victims [*28] of discrimination from complaining to the EEOC." Id. (citation omitted). Thus, although the terms of Plaintiff's employment were not changed by being placed on the PIP, the fact that at least some Kellogg employees regarded a PIP as the "kiss of death" is sufficient to raise a genuine issue of material fact as to whether the threat of being put on a PIP might dissuade a reasonable worker from filing a complaint. See JA 166, 192. Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 33 of 35 Page 33 of 34 Rementer v. Kellogg Co. That same day, Vaspoli wrote to Burgett [*29] in Human Resources that he would "like to move forward and put Trish on a PIP." JA 132-134. Following Plaintiff's June 20, 2011 contact with Blumberg, however, Vaspoli followed Blumberg's instructions and continued to provide Plaintiff with "coaching/feedback and monitor [her] performance." JA 283. However, Plaintiff's performance did not improve. See, e.g., JA 57 (Aug. 22, 2011 memo from Keane to Rementer summarizing Keane and Vaspoli's discussion with Plaintiff's client at Giant on Grant Avenue after he had threatened to "throw [Plaintiff] out for poor performance"); JA 140-44 (Oct. 9, 2011 email exchange between Vaspoli and Rementer, copying Blumberg, concerning Plaintiff's refusal to personally attend to an issue at one of her stores over the weekend); JA 138 (Feb. 27, 2012 email from Burgett noting that a "[r]eview of [Plaintiff's] metrics indicate she is near/at the bottom of most metrics."). Thus, on October 31, 2011, four months after his initial request, Vaspoli requested again that Plaintiff be placed on a PIP. JA 283. That request was reviewed and approved by Human Resources. Id. Given the aforementioned chronology, it is clear that Vaspoli's actions, though perhaps designed to [*30] cause Plaintiff's termination, were not taken in retaliation for Plaintiff's alleged protected activity. As for her termination, Plaintiff argues that there is a dispute of material fact as to: (1) whether the termination was motivated solely by the complaining Pathmark store manager, John McHugh, or (2) whether Plaintiff's manager at Kellogg at the time, Joe Tricome, actively brought about her removal by asking Plaintiff's former boss, Jim Kern, which stores were unhappy with Plaintiff and prompting McHugh to request Plaintiff's replacement. Sur-Reply at 2. While the record may reflect a dispute as to who initiated the conversation between Tricome and McHugh concerning Plaintiff's removal from the Pathmark, that dispute is not material. Even if Tricome went out of his way to cause Plaintiff's termination, there is no record evidence that he knew about Plaintiff's protected activity, see JA 00216, let alone sought to have Plaintiff removed in retaliation for such activity. Nor is there any evidence that anyone at Kellogg who knew of Plaintiff's protected activity directed Tricome to seek Plaintiff's removal. Thus, even if it were the case that Tricome deliberately sought Plaintiff's [*31] termination for reasons of his own, there is no record evidence to support Plaintiff's claim that he did so in retaliation for her protected activity. See Daniels, 776 F.3d at 196-97. Accordingly, Defendants' motion for summary judgment on Plaintiff's retaliation claim is granted. C. Intentional Infliction of Emotional Distress Defendants also move for summary judgment with respect to Plaintiff's claim for intentional infliction of emotional distress ("IIED"). Such a claim requires, "at the least, [a demonstration of] intentional outrageous or extreme conduct by the defendant, which causes severe emotional distress to the plaintiff." Swisher v. Pitz, 2005 PA Super 56, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005). Moreover, "a plaintiff must suffer some type of resulting physical harm due to the defendant's outrageous conduct." Id.; see also Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010) (discussing Pennsylvania law regarding intentional infliction of emotional distress claims). As the Third Circuit has observed, "it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for [IIED]." Andrews, 895 F.2d at 1487 (citing Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988)). "[A]s a general rule, sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action for [IIED]." Id. Indeed, [*32] "the only instances in which courts applying Pennsylvania law have found conduct outrageous in the employment context is where an employer engaged in both sexual harassment and other retaliatory behavior against an employee." Id. (citation omitted). And even then, "[t]he extra factor that is generally required is retaliation for turning down sexual propositions." Id. (citation Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 34 of 35 Page 34 of 34 Rementer v. Kellogg Co. omitted. As discussed herein, Plaintiff has not alleged that she was sexually assaulted or harassed by any of her supervisors. Moreover, for the reasons stated above, Plaintiff has not raised a genuine issue of material fact to avoid summary judgment in favor of Kellogg on her hostile work environment and retaliation claims. The facts surrounding Plaintiff's termination alone are insufficient to carry her IIED claim under Pennsylvania law. Accordingly, the Court will grant summary judgment in favor of Defendants on that claim. D. Negligent Hiring / Training Finally, Plaintiff concedes that Defendants are entitled to summary judgment on her claims for negligent supervision and negligent training of employees. Accordingly, judgment will also be entered in Defendants' favor on that count. V. CONCLUSION For the reasons stated [*33] herein, Defendants' motion for summary judgment is granted. An appropriate order will follow this opinion. Dated: October 1, 2015 BY THE COURT: /s/ Wendy Beetlestone, J. WENDY BEETLESTONE, J. ORDER AND NOW, this 1st day of October, 2015, upon consideration of Defendants' Motion for Summary Judgment [ECF No. 47], the Plaintiff's response in opposition thereto [ECF No. 51], the Defendants' Reply [ECF No. 49], and the Plaintiff's Sur-Reply [ECF No. 52], IT IS ORDERED that: (1) The Defendants' Motion to Dismiss is GRANTED; (2) JUDGMENT IS ENTERED IN FAVOR of Defendants Kellogg Company and Kellogg USA Inc.; and (3) The Clerk of Court is directed to close this case. BY THE COURT: /s/ Wendy Beetlestone, J. WENDY BEETLESTONE, J. End of Document Case 1:16-cv-02145-CCC Document 43-1 Filed 12/19/16 Page 35 of 35