JENNIFER OLDHAM, Appellant v. THE PENNSYLVANIA STATE UNIVERSITY; WIESLAW R. GLON, as agent for Penn State in his official capacity and in his individual capacity; CHRISTOPHER J. HARRIS, Esq., as agent for Penn State in his official capacity; GEORGE G. ABASHIDZE, as agent for Penn State in his official capacity and in his individual capacity
No. 22-2056
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 29, 2025
PRECEDENTIAL
Opinions of the United States Court of Appeals for the Third Circuit
5-29-2025
Jennifer Oldham v. Penn State University
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Recommended Citation
“Jennifer Oldham v. Penn State University” (2025). 2025 Decisions. 434. https://digitalcommons.law.villanova.edu/thirdcircuit_2025/434
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District Judge: Honorable Matthew W. Brann
Argued: March 23, 2023
Before: RESTREPO, PHIPPS, and ROTH, Circuit Judges
(Filed: May 29, 2025)
406 South Eastside Drive
Bloomington, IN 47401
Stephen Lindsay
LINDSAY LAW
46 Haywood Street
Asheville, NC 28801
Kerstin W. Sutton
3215 Deerchase Wynd
Durham, NC 27712
Counsel for Appellant
James A. Keller
Patrick F. Nugent
Amy L. Piccola [ARGUED]
Shane P. Simon
SAUL EWING
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102
Counsel for Appellees Penn State University and Christopher J. Harris
Jeffrey A. Lutsky [ARGUED]
Corey S. D. Norcross
STRADLEY RONON STEVENS & YOUNG
2005 Market Street
Suite 2600
Philadelphia, PA 19103
Counsel for Appellee Wieslaw R. Glon
Lee G. Valigorsky [ARGUED]
GLEASON CHERRY & CHERRY
1 North Franklin Street
P.O. Box 505
DuBois, PA 15801
Counsel for Appellee George G. Abashidze
OPINION OF THE COURT
PHIPPS, Circuit Judge.
This case arises from allegations that during a cross-country flight following a fencing tournament, a state university‘s assistant fencing coach sexually harassed and assaulted the woman in the seat next to him. That woman was also a member of the fencing community: she was a coach at a private fencing school that she owned. She alleges that when she told the university‘s head fencing coach about this incident, the coach rebuffed her, pressured her not to report it, and then along with the assistant coach initiated a retaliation campaign against her within the fencing community. Even more, she claims that when the university eventually investigated the
Based on those allegations, the private fencing coach sued the university, the two coaches, and the university‘s
After the transfer, the plaintiff amended her complaint, and the defendants moved to dismiss the claims against them. The transferee district court dismissed the entire suit. As a matter of first impression, it held that to bring a
On de novo review, most of those conclusions are correct. A
I. FACTUAL BACKGROUND (AS ALLEGED IN THE AMENDED COMPLAINT)
A. The Return Flight from a Portland Fencing Tournament
In early December 2017, USA Fencing — the official national governing body for the sport of fencing in the United States1 — held a North American Cup fencing competition in Portland, Oregon. Jennifer Oldham, the head coach and owner of a private fencing club in Durham, North Carolina, attended the tournament. George Abashidze, an assistant fencing coach at the Pennsylvania State University, also attended.
After the tournament, Oldham, Abashidze, and another member of the fencing community boarded a red-eye flight from Portland to Chicago and were seated in the same row.
Abashidze abused his proximity to Oldham. He made lewd comments to her. He touched her legs, arms, and face without her consent. And he repeatedly demanded that she have sex with him — during the flight. Even more, in the early morning hours of December 12, 2017, while the airplane was over the Great Plains, he thrust his hand between her legs and grabbed her genitalia without her consent.
B. The Initial Aftermath of the Events on the Flight
Upon her return home to North Carolina, Oldham told her husband what Abashidze had done to her. She later reached out to her mentor and former fencing coach for advice on how to deal with the incident. Her mentor was a long-time friend of Wieslaw Glon, the head fencing coach at Penn State, and in January 2018, he spoke over the phone to Glon about Abashidze‘s verbal and physical harassment of Oldham on the flight. Despite that conversation, Glon did not report the misconduct to Penn State‘s
In February 2018, there was a collegiate fencing tournament in Durham. Both Glon and Abashidze attended that event as part of their employment with Penn State. While in town, Glon met with Oldham, and she told him what happened on the flight from Portland. She also handed Glon a written account of the incident and watched as he read it. After providing Glon with that information, Oldham asked whether he would report the incident to Penn State‘s Athletic Department. Glon refused, and in addition, he discouraged Oldham from reporting the incident to SafeSport, an independent organization that investigates and has the exclusive authority to respond to claims of sexual misconduct for USA Fencing. He told her that it would be embarrassing
After that meeting, Oldham did not report the incident to SafeSport or to Penn State‘s
In April 2018, another fencing tournament brought Glon, Oldham, and Oldham‘s mentor to Richmond, Virginia. At the prompting of Oldham‘s mentor, the three of them had coffee together. Glon again discouraged Oldham from reporting the incident to SafeSport for the same reasons as before. He also urged her to refute allegations by the third-party witness if questioned by SafeSport. Glon then communicated the anxiety, stress, and loss of sleep that Abashidze was experiencing. Oldham told Glon that he had a duty to report the incident to Penn State. Glon disagreed and explained that he was watching Abashidze closely and did not believe him to be a danger to the team.
Over the next few months, there were several developments related to the incidents on the December 2017 flight. On June 30, 2018, without Oldham‘s knowledge, her husband, also a fencing professional, emailed Penn State‘s Athletic Director about it. Around the same time, SafeSport substantiated the report of Abashidze‘s verbal and physical harassment of Oldham, and it suspended Abashidze from any association or involvement with USA Fencing-sanctioned events taking place in 2018. Abashidze appealed that suspension, which led to the scheduling of an arbitration hearing. And on August 14, 2018, in response to an email from Oldham‘s husband, Penn State‘s
Around that same time, Glon and Abashidze were accusing Oldham of fabricating the verbal and physical harassment based on nothing more than a brushing of arms on a plane. In addition, at the SafeSport arbitration hearing in December 2018, both Glon and Abashidze called Oldham a liar.
Oldham felt the effects of those developments. Members of the fencing community, including Oldham‘s mentor, doubted her account, and she began to be shunned at fencing events. In addition, some of her colleagues in the fencing community were openly hostile toward her and spread Glon and Abashidze‘s accusations. Also, in pursuit of her professional aspirations, Oldham had applied for coaching positions at the University of North Carolina and Northwestern University, and despite her qualifications, she received no offers. She later heard that Glon had directly interfered with her candidacy for one of those positions — the coaching job at the University of North Carolina, her alma mater.
In response to that hostility and in fear of further retaliation, Oldham decided against going to fencing events that she otherwise would have attended. In particular, she did not attend a fencing tournament at Penn State on November 3, 2018. Nor did she attend the NCAA fencing championship in March 2021, which Penn State hosted.
Oldham did receive some, albeit incomplete, vindication. SafeSport, after Abashidze‘s arbitration hearing, determined that Abashidze was responsible for the verbal and physical harassment of Oldham and affirmed his suspension. Also, Penn State‘s February 2019
II. PROCEDURAL HISTORY
A. Commencement of Suit in the Middle District of North Carolina
On May 27, 2020, Oldham sued Abashidze, Glon, Harris, and Penn State in the United States District Court for the Middle District of North Carolina. She brought claims under the implied right of action for
That briefing convinced the district court in the Middle District of North Carolina that venue was not proper — only the February 2018 meeting between Oldham, Glon, and Abashidze took place there. Oldham v. Pa. State Univ., 507 F. Supp. 3d 637, 645–47 (M.D.N.C. 2020) (hereinafter “Oldham I“). To remedy that venue problem, the court made a hybrid transfer. It relied on the defect-curing transfer statute,
B. The Litigation in the Middle District of Pennsylvania
On September 28, 2021, after the transfer of venue, Oldham amended her complaint. That pleading had two counts for violations of
The defendants moved to dismiss all of Oldham‘s claims. They contested the plausibility of the
The District Court granted those motions. Oldham v. Pa. State Univ., 2022 WL 1528305, at *29 (M.D. Pa. May 13, 2022) (hereinafter “Oldham II“). It rejected the
In response to that ruling, Oldham elected not to amend her allegations for the two claims dismissed without prejudice — defamation and failure to train or supervise. Instead, she notified the District Court that she would stand on those allegations. The District Court then dismissed those claims with prejudice on June 28, 2022.
Through a notice of appeal filed on June 1, 2022, and amended July 6, 2022, Oldham timely invoked this Court‘s appellate jurisdiction over the District Court‘s final decision. See
A. Some of the Title IX Claims Against Penn State Are Within the Zone of Interests Protected by Title IX.
The District Court dismissed Oldham‘s
That ruling presents a question of first impression for this Court, viz., whether the zone-of-interests test applies to
Although similar considerations have deep roots in the common law,7 the Supreme Court originally developed the
Determining whether a person is within the zone of interests protected by a statute requires analyzing the statute‘s text, construed “using traditional tools of statutory
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .
But that understanding alone does not sufficiently define the zone of interests protected by
In its
1. Penn State Had Substantial Control Over Abashidze, Glon, and Harris.
In evaluating whether Penn State had substantial control over each of the alleged offenders — Abashidze, Glon, and Harris — it is significant that they were each employed by Penn State. As a general principle, an employer exercises control over its employees. See Restatement (Second) of Agency § 220(1) (Am. L. Inst. 1958). And here, at the pleadings stage, the degree of control that Penn State had over each of those employees may be inferred as substantial.
With respect to the sexual harassment claims, the amended complaint alleges that Abashidze was representing the university on work travel. That allows the reasonable inference that Penn State exercised substantial control over him for purposes of
As to the retaliation claims, Oldham alleges that the campaign was widespread and targeted members of the fencing community over several months. From there, it may be reasonably inferred that the degree of control that Penn State had over two of the employees responsible for running its fencing program and communicating with other members of the fencing community — Abashidze and Glon — was substantial enough that Penn State as their employer had the power to order them to refrain from such a campaign. And with respect to Harris, the amended complaint alleges that, as Penn State‘s
The second requirement for the Title IX zone-of-interests test (substantial control over the context in which the discrimination occurred or manifested) is distinct from the first requirement (substantial control over the offender). See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 282 (1998) (explaining that it is not enough that the offender was “aided in carrying out the sexual harassment . . . by his or her position of authority with the institution.” (internal quotation marks and citation omitted)). And here, Oldham alleges that the discrimination occurred or manifested itself across multiple contexts.
The setting in which Oldham‘s sexual harassment claims occurred and manifested was the flight from Portland to Chicago. As a baseline, a recipient‘s grounds or campus generally qualify as a context over which it exercises substantial control. See, e.g., Davis, 526 U.S. at 646 (reasoning that because “the bulk” of the misconduct of the harasser, who was a student, not an employee, “occur[red] during school hours and on school grounds,” the context of the harassment was within the school‘s substantial control (citing Doe v. Univ. of Ill., 138 F.3d 653, 661 (7th Cir. 1998), cert. granted, judgment vacated sub nom. Bd. of Trs. of Univ. of Ill. v. Doe, 526 U.S. 1142 (1999))). However, there may be instances in which a funding recipient exercises substantial control over an off-campus setting as well. See, e.g., Gebser, 524 U.S. at 278, 292-93 (suggesting that a school could be held liable for a teacher who had a relationship with a minor student during class time but off of school property). And it is not difficult to imagine a scenario in which an off-campus flight might be subject to a university‘s substantial control. A chartered flight or one on which students are traveling with a university chaperone may well qualify. But the amended complaint lacks allegations about Penn State‘s substantial control over the flight, even though its allegations support Penn
By comparison, the context for the alleged retaliation campaign against Oldham was much broader. It was allegedly orchestrated across the nation, including in Durham, in Richmond, at a SafeSport hearing, and at other fencing events. In addition, the effects of the retaliation campaign allegedly manifested in Oldham‘s actual or constructive exclusion from fencing tournaments and networking events;9 the loss of employment opportunities as a fencing coach at Northwestern University and the University of North Carolina; and the departure of students from her own fencing school. Some of those contexts may be inferred to be within Penn State‘s substantial control for purposes of Title IX.
It is a reasonable inference that conversations that were part of the retaliation campaign occurred on Penn State‘s campus. The amended complaint alleges that the campaign was widespread, so it is reasonable to infer that at least some conversations occurred in Abashidze‘s or Glon‘s offices, at Penn State fencing events, or otherwise while Abashidze and Glon were on campus. Any conversations that occurred in those settings were within Penn State‘s substantial control and
Even so, the second requirement for the Title IX zone-of-interests test requires substantial control over the context in which the discrimination either occurred or manifested. And even without Penn State‘s substantial control over off-campus settings in which the retaliation campaign may have occurred, the retaliation campaign is alleged to have manifested in settings over which Penn State had substantial control. In particular, Oldham alleges that because of the retaliation campaign, she was excluded from events hosted by Penn State, including an invitational fencing tournament the weekend of November 3, 2018, and the NCAA fencing championships in March 2021. From the allegation that Penn State hosted those events, it may be reasonably inferred that Penn State had substantial control over those settings such that Oldham‘s retaliation claim for exclusion from those events satisfies the second Title IX zone-of-interests requirement. See Davis, 526 U.S. at 646 (explaining that a school has substantial control over what occurs during “school activities or otherwise under the supervision of school employees” (quoting Univ. of Ill., 138 F.3d at 661)).
The other settings in which the retaliation campaign manifested itself were not within Penn State‘s substantial control. The amended complaint does not allege that Penn State hosted or supervised the other fencing tournaments and events from which she was excluded, and nothing else in that complaint allows a reasonable inference that Penn State, merely by participating in those events, exercised substantial control over those contexts. Oldham further seeks redress for her lost employment opportunities as a fencing coach at
B. The District Court Erred in Dismissing Some of the State-Law Claims Against Abashidze, but It Correctly Dismissed the State-Law Claims Against Glon, Harris, and Penn State.
1. Determining the Forum State for a Hybrid Transfer of Venue
As claims within federal supplemental jurisdiction, see
Because the Middle District of North Carolina invoked both
Because North Carolina is the forum state for the claims against Abashidze, its choice-of-law rules control. It uses lex fori for statutes of limitations, see Boudreau v. Baughman, 368 S.E.2d 849, 853-54, 857 (N.C. 1988), and lex loci delicti for substantive tort law, see SciGrip, Inc. v. Osae, 838 S.E.2d 334, 343 (N.C. 2020). Under lex fori, the law of the forum in which the case was brought determines the controlling law, so North Carolina‘s relevant statutes of limitations – one year for defamation and three years for battery, negligence, and emotional distress – govern those claims against Abashidze. See Boudreau, 368 S.E.2d at 853-54, 857. Under lex loci delicti, the law of the state in which the injury occurred determines the applicable substantive tort law, which includes both the standard for claim accrual, see Britt v. Arvanitis, 590 F.2d 57, 59 (3d Cir. 1978), and the elements of the claim, see SciGrip, 838 S.E.2d at 343. Because Oldham pursues different claims, lex loci delicti must be analyzed on a claim-by-claim basis. See id. at 344.
a. The Claim for Defamation Against Abashidze
Under North Carolina‘s one-year statute of limitations, Oldham‘s defamation claim must have accrued no earlier than one year before this lawsuit was filed – in other words, on or after May 27, 2019. See Boudreau, 368 S.E.2d at 853-54, 857;
But Oldham‘s amended complaint does not identify any defamatory statements made by Abashidze within that period. She alleges that between August 2018 and February 2019, Abashidze made non-privileged false statements of fact about her to members of the fencing community. Oldham also alleges that Abashidze‘s calling her a liar during his testimony at the SafeSport hearing in December 2018 qualifies as a non-privileged false statement. All of those statements, however, were made before May 27, 2019, and are thus time barred. See generally Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975) (“[A] Rule 12(b) motion can be utilized when the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.“).11
b. The Claims for Battery, Negligence/Gross Negligence, and Negligent/Intentional Infliction of Emotional Distress Against Abashidze
Under lex fori, North Carolina‘s three-year statute of limitations governs Oldham‘s claims against Abashidze for battery, negligence, gross negligence, and negligent and intentional infliction of emotional distress. See Boudreau, 368 S.E.2d at 853-54, 857; see also
3. The Challenges by Glon, Harris, and Penn State to the Tort Claims Against Them
Like North Carolina, Pennsylvania uses separate choice-of-law rules for statutes of limitations and tort claims.
Under Pennsylvania law, the determination of the controlling statute of limitations depends on where the claim accrued. For claims accruing out of state, Pennsylvania uses a first-barred rule under which the applicable statute of limitations is the shorter of Pennsylvania‘s and that of the state where the injury occurred. See
The determination of when a claim accrues is a substantive question of state tort law, and Pennsylvania uses a two-step true-conflict rule for substantive tort law. See Melmark, Inc. v. Schutt ex rel. Schutt, 206 A.3d 1096, 1104, 1106-07 (Pa. 2019). That rule first examines whether there is a “true conflict” between the laws of the two states. Id. at 1104 (quoting Keystone Aerial Survs., Inc. v. Pa. Prop. & Cas. Ins. Guar. Ass‘n, 829 A.2d 297, 301 (Pa. 2003)). If there is no true conflict – meaning either that both states’ laws lead to the same result or that one state has no policy interest in the outcome of the litigation – then Pennsylvania law applies. See id. But if a true conflict exists, then the rule dictates the application of the substantive law of the state with the most significant relationship to the events and the parties. See id. at 1106-07. Like North Carolina‘s rule, Pennsylvania‘s rule requires a claim-by-claim analysis. See Berg Chilling Sys., Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006) (Alito, J.).
a. The Claims for Defamation Against Glon and Penn State
Because Oldham‘s defamation claims against Glon and Penn State are untimely if not filed within Pennsylvania‘s one-year limitation period for such claims, see
But Oldham brings no such claims. She alleges that Glon slandered her during a telephone call with her former mentor in January 2018. Oldham also claims that Glon spread falsehoods about her within the fencing community between August 2018 and February 2019, including by calling her a liar during the December 2018 SafeSport hearing. She further asserts that Glon slandered her during a telephone call with the University of North Carolina fencing coach during or before January 2019. But all of those statements predate May 27, 2019, and they are therefore outside the limitations period.12
Oldham‘s defamation claim against Penn State does not identify any separate statements made by Penn State; rather, it is premised on Penn State‘s liability under respondeat superior for the statements by Glon and Abashidze. See generally Commonwealth ex rel. Orris v. Roberts, 141 A.2d 393, 398-99 (Pa. 1958) (explaining respondeat superior under Pennsylvania law). But since Oldham has not identified any potentially timely defamatory statement made by Glon or Abashidze, there is no basis for Penn State‘s vicarious liability. See Ludwig v. McDonald, 204 A.3d 935, 943 (Pa. Super. Ct. 2019) (explaining that underlying employee liability must exist for an employer to be held liable under respondeat superior). Accordingly, the District Court did not err in dismissing the defamation claim against Penn State.
Oldham also invoked respondeat superior to sue Penn State for battery based on Abashidze‘s conduct on the airplane. As explained above, such a claim is untimely if it was not filed within Pennsylvania‘s two-year statute of limitations. See Aldossari, 49 F.4th at 248 n.17;
To excuse the untimeliness of this claim, Oldham argues for equitable tolling based on her initial filing of the claim in North Carolina, where venue was determined to be improper. Pennsylvania law determines whether equitable tolling applies to its statute of limitations. See Vernau v. Vic‘s Market, Inc., 896 F.2d 43, 45 (3d Cir. 1990) (“[S]tate tolling principles are generally to be used by a federal court when it is applying a state limitations period . . . .” (citing Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 463-64 (1975))); McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663-64 (3d Cir. 1980) (holding that under Pennsylvania‘s ‘borrowing statute,’ the federal court had to use Ohio equitable tolling cases to determine whether a diversity cause of action arising in Ohio
However, under Pennsylvania law, to be filed ‘in a timely fashion,’ a lawsuit must have been filed within the statute of limitations of the proper forum, which in this case is Pennsylvania. See Irwin v. Dep‘t of Veterans Affs., 498 U.S. 89, 96 & n.3 (1990) (explaining that to be equitably tolled, a complaint must be filed within the proper statutory period but through a defective pleading – such as one filed in the wrong forum); Nicole B., 237 A.3d at 994-96 (favorably citing Irwin and explaining that “equitable tolling pauses the running of, or ‘tolls,’ a statute of limitations,” so a tolled claim is timely if the time between injury and the filing of the complaint in the wrong forum – when the running of the statute of limitations is paused – is less than the statute of limitations in the correct forum (quoting Dubose v. Quinlan, 173 A.3d 634, 644 (Pa. 2017))). And when Oldham filed her battery claims in North Carolina on May 27, 2020, Pennsylvania‘s two-year statute of limitations, which started to run on December 12, 2017, had already expired. Thus, her battery claim against Penn State is not susceptible to wrong-forum tolling and is otherwise time barred.
Oldham‘s claims against Glon, Harris, and Penn State for negligence, gross negligence, failure to supervise, and failure to train are premised on breaches of three sets of duties that those defendants allegedly owed her. See Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1168 (Pa. 2000) (“The primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff.” (citing Gibbs v. Ernst, 647 A.2d 882, 890 (1994))); see also SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 216-17 (3d Cir. 2022) (explaining that “the nature of the duty alleged to have been breached . . . [is] the critical determinative factor” in a negligence action (quoting Bruno v. Erie Ins., 106 A.3d 48, 68 (Pa. 2014))). The first duty they owed her, she asserts, was to keep her safe from sexual assault by an employee of the university. The second was to properly handle her sexual assault complaint. And the third set of duties relates to training and supervision: of Abashidze with respect to the alleged assault; of Glon with respect to his handling of the report of the alleged assault; and of both Abashidze and Glon with respect to the retaliation campaign they allegedly ran against Oldham.
Any claim based on a breach of these duties must have been filed within Pennsylvania‘s two-year statute of limitations, see
The second duty that Oldham claims these defendants breached – that of properly addressing her Title IX complaint – is not generally recognized under Pennsylvania law, which governs because there is no true conflict of law between Pennsylvania and North Carolina. See Melmark, 206 A.3d at 1104. At most, Pennsylvania imposes on public universities a statutory duty to investigate claims made by students and employees. See
As to the third set of duties – those related to training or supervision – the parties allege a conflict between Pennsylvania law and North Carolina law. Assuming arguendo that such a true conflict exists, the next step under
For direct liability under the common law for failure to supervise, Pennsylvania uses the standard set forth in the Second Restatement of Torts. See Dempsey v. Walso Bureau, Inc., 246 A.2d 418, 419-20 (Pa. 1968); Hutchison ex rel. Hutchison v. Luddy, 742 A.2d 1052, 1055 (Pa. 1999); Walters v. UMPC Presbyterian Shadyside, 187 A.3d 214, 233 (Pa. 2018). That standard limits such a claim in several respects,
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.
Restatement (Second) of Torts § 317 (Am. L. Inst. 1965); cf. Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 489 (3d Cir. 2003) (applying Pennsylvania law and explaining that “[n]egligent supervision differs from employer negligence under a theory of respondeat superior“).
The failure-to-supervise tort claim directly against Penn State also cannot succeed. Failure-to-supervise liability extends only to a servant‘s actions taken outside the scope of employment. See Restatement (Second) of Torts § 317. And the amended complaint alleges that “[a]t all relevant times, Glon and Harris were acting within the course and scope of their employment by Penn State University,” Am. Compl. ¶ 150. Thus, Oldham‘s allegations do not permit a finding of Penn State‘s tort liability for a failure to supervise Glon or Harris.
Unlike its allegations with respect to Glon and Harris, the amended complaint is silent on whether Abashidze was acting within the scope of his employment when he allegedly engaged in the retaliatory harassment campaign. Silence, however, is not a solution because being outside of the scope of employment is a necessary element of a common-law claim for failure to supervise. See Restatement (Second) of Torts § 317.
Such an inference is not reasonable here. In defining ‘scope of employment,’ Pennsylvania historically endorsed the formulation by Justice Charles Andrews of the New York Court of Appeals, which included a high degree of employee misconduct within the scope of employment:
It is, in general, sufficient to make the master responsible that he gave to the servant an authority or made it his duty to act in respect to the business in which he was engaged when the wrong was committed, and that the act complained of was done in the course of his employment. The master in that case will be deemed to have consented to and authorized the act of the servant, and he will not be excused from liability, although the servant abused his authority, or was reckless in the performance of his duty, or inflicted an unnecessary injury in executing his master‘s orders. The master who puts the servant in a place of trust or responsibility, and commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the
Brennan v. Merch. & Co., 54 A. 891, 892 (Pa. 1903) (quoting Rounds v. Del., Lackawanna & W. R.R. Co., 64 N.Y. 129, 134 (1876) (Andrews, J.)); accord Orr v. William J. Burns Int‘l Detective Agency, 12 A.2d 25, 27 (Pa. 1940) (quoting Rounds, 64 N.Y. at 134). Under that standard, even supposing that Abashidze‘s waging the retaliation campaign went “beyond the strict line of his duty or authority,” that would not take him outside of the scope of his employment because his alleged actions in that respect were the result of a “lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion.” Brennan, 54 A. at 892 (quoting Rounds, 64 N.Y. at 134).
For completeness, Pennsylvania courts – without a formal abandonment of that common-law standard – have more recently gravitated to the scope-of-employment test announced in the Restatement (Second) of Agency. See, e.g., McGuire ex rel. Neidig v. City of Pittsburgh, 285 A.3d 887, 892 (Pa. 2022); Justice v. Lombardo, 208 A.3d 1057, 1070 (Pa. 2019); Fitzgerald v. McCutcheon, 410 A.2d 1270, 1272 (Pa. Super. Ct. 1979). Under that test, which consists of three elements when the use of intentional force is not implicated, an employee acts within the scope of his employment “if, but only if,” (i) he engages in conduct “of the kind he is employed to perform“; (ii) the conduct “occurs substantially within the authorized time and space limits“; and (iii) the conduct “is actuated, at least in part, by a purpose to serve the master.” Restatement (Second) of Agency § 228(1)(a)–(c) (Am. L. Inst. 1958); cf. id. § 228(1)(d) (including a fourth requirement when the use of force is involved: that “the use of force is not unexpectable by the master“).
By the allegations in her pleadings and the reasonable inferences therefrom, Oldham does not provide a basis for disproving any of the Restatement‘s three relevant elements.
elements indicating that Abashidze acted within the scope of his employment in allegedly conducting a retaliation campaign, Oldham has not plausibly alleged a tort claim directly against Penn State for failure to supervise him in that respect.
As for the failure-to-train claim, Pennsylvania recognizes such a tort only in the context of a negligence action. See id. (explaining that liability may exist “only if all the requirements of an action of tort for negligence exist” (quoting Restatement (Second) of Agency § 213 cmt. a (Am. L. Inst. 1958))). The foundation of a negligence claim is the existence of a freestanding duty of care. See Althaus, 756 A.2d at 1168; see also SodexoMAGIC, 24 F.4th at 216-17. And as explained above, Pennsylvania has not recognized a duty to train employees to investigate third-party claims of harassment, nor has it recognized a duty to train employees to not engage in the defamation of third parties. See
d. The Claims for Negligent and Intentional Infliction of Emotional Distress Against Glon, Harris, and Penn State
For the reasons above, using Pennsylvania‘s limitations period as the outer bounds of timeliness, Oldham‘s claims for the infliction of emotional distress are time barred if they were not filed within two years of their accrual. See
Under the first step of the true-conflict rule, there is a difference between Pennsylvania and North Carolina substantive law. In Pennsylvania, claims for both the negligent infliction and the intentional infliction of emotional distress require a physical injury. See Toney v. Chester Cnty. Hosp., 961 A.2d 192, 200 (Pa. Super. Ct. 2008) (requiring a physical injury for negligent infliction of emotional distress), aff‘d, 36 A.3d 83 (Pa. 2011); Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005) (requiring a physical injury for intentional infliction of emotional distress (citing Reeves v. Middletown Athletic Ass‘n, 866 A.2d 1115, 1122 (Pa. Super. Ct. 2004))); see also Redland Soccer Club, Inc. v. Dep‘t of the Army, 55 F.3d 827, 848 (3d Cir. 1995) (construing Pennsylvania law to require a physical injury for negligent infliction of emotional distress); Davis v. Wigen, 82 F.4th 204, 216 (3d Cir. 2023) (construing Pennsylvania law to require a physical injury for intentional infliction of emotional distress). See generally Ndungu v. Att‘y Gen., 126 F.4th 150, 171 (3d Cir. 2025) (recognizing that “a ruling by the Superior Court of Pennsylvania is ordinarily an authoritative source of Pennsylvania state law“). But in North Carolina, claims for the negligent or the intentional infliction of emotional distress do not require a physical injury. See Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 395 S.E.2d 85, 97 (N.C. 1990) (citing Dickens v. Puryear, 276 S.E.2d 325, 332 (1981)); Turner v. Thomas, 794 S.E.2d 439, 446 (N.C. 2016) (citing Dickens, 276 S.E.2d at 335). Thus, there is a true conflict between Pennsylvania and North Carolina law.
Using Pennsylvania‘s formulation, Oldham fails to state a claim for the infliction of emotional distress, either negligently or intentionally, because she does not allege any companion physical injury within the two-year limitations period. See Toney, 961 A.2d at 200; Swisher, 868 A.2d at 1230; see also Redland Soccer Club, 55 F.3d at 848; Davis, 82 F.4th at 216. It was therefore not an error for the District Court to dismiss those claims against Glon, Harris, and Penn State.
IV. CONCLUSION
For these reasons, the District Court‘s decision will be affirmed in part, vacated in part, and remanded for further proceedings in accordance with this opinion.