L.F.V., a minor, by her legal guardians Kimberly Varano and Joseph Varano, and Kimberly Varano and Joseph Varano in their own right v. South Philadelphia High School and Philadelphia School District, Appellants
No. 218 C.D. 2023
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
June 9, 2025
DUMAS
Argued: June 5, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge1 HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE LORI A. DUMAS, Judge HONORABLE STACY WALLACE, Judge HONORABLE MATTHEW S. WOLF, Judge
OPINION BY
JUDGE DUMAS
FILED: June 9, 2025
I. BACKGROUND2
In October of 2021, three minor students (two male, one female) attended a District school. All three students were enrolled in special education and required supervision by the District employees. During a physical education class, the two males pushed and pulled L.F.V. behind the gym bleachers, into a bathroom, and sexually assaulted her, following which she returned to class. The District employees supervising the class allegedly did not witness the assault.
Subsequently, Kimberly and Joseph Varano sued the District on behalf of L.F.V. and individually in their own right (collectively, Plaintiffs). Plaintiffs raised two counts of negligence. First, on behalf of L.F.V., Plaintiffs alleged that the District owed L.F.V. a duty to protect her while at school and breached that duty through various actions. For example, the District failed to, inter alia, (1) monitor all three minors and the gym, hallway, and bathroom; and (2) supervise the employees overseeing the class. As a result of the District‘s negligence, Plaintiffs contended L.F.V. suffered mental anguish, educational
Second, Plaintiffs alleged the District negligently inflicted emotional distress on Kimberly and Joseph Varano. In support, Plaintiffs averred that the District had a duty to supervise and protect L.F.V. while at school. Plaintiffs asserted that upon learning of the sexual assault, they suffered emotional distress and lost wages due to taking time off from work. As a result, Plaintiffs requested monetary damages.
The District filed preliminary objections contending, inter alia, that it is immune under what is commonly known as the Political Subdivision Tort Claims Act (Act), recodified at
The trial court overruled the District‘s preliminary objections, primarily relying on unreported state and federal decisions as well as legislative history. Trial Ct. Order, 12/12/22. Per the court, Plaintiffs pleaded sufficient facts that the District‘s negligent omissions—failing to supervise its employees during gym class—resulted in Plaintiffs’ injuries. Trial Ct. Op., 7/11/23, at 5.
The District timely filed a motion to certify the order for an interlocutory appeal, which the trial court denied. Trial Ct. Order, 1/20/23. The District timely filed a petition for permission to appeal with this Court on February 17, 2023. This Court granted the petition, reasoning that the trial court‘s order was immediately appealable as a collateral order under Pa.R.A.P. 313 and Brooks v. Ewing Cole, Inc., 259 A.3d 359 (Pa. 2021). Although the trial court‘s order was immediately appealable, under Pa.R.A.P. 1316, a timely petition for permission to appeal is treated as a notice of appeal. Pa.R.A.P. 1316.4 Appellants timely filed a court-ordered Pa.R.A.P. 1925(b) statement, and the trial court filed a responsive opinion.
II. ISSUE
The District raises a single issue: whether it is immune under the Act because a third party, and not the District or its employees, committed the sexual abuse. Dist.‘s Br. at 4.
III. DISCUSSION5
Under the Act, “a local agency may be liable for damages that are (1)
Generally, no school district “shall be liable for any damages on account of any injury to a person or property caused by any act of the [school district] or an employee thereof or any other person.”
In turn, Section 8542(b) begins with the clause: “The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency” and then lists nine categories of acts that may result in liability.
In 2019, the legislature added a ninth category, which specifies conduct constituting “an offense enumerated under section 5551(7) (relating to no limitation applicable) if the injuries to the plaintiff were
A. Immunity Under 42 Pa.C.S. § 8541
1. Arguments
The District contends that it is immune “from the acts of third parties” under
Plaintiffs distinguish Chevalier and Mascaro II on their facts. Pls.’ Br. at 38-39. In their view, the District could be jointly liable with a third party for negligence. Id. at 27-29 (discussing Crowell and Jones v. Chieffo, 700 A.2d 417 (Pa. 1997) (plurality)). Plaintiffs emphasize that the District should be liable for negligence that enabled the sexual abuse—not the sexual abuse itself. Id. at 16-17.
2. Discussion
In Mascaro II, our Supreme Court resolved immunity to a negligence claim in which “the plaintiff‘s family had been grievously injured by a person who had escaped from” a Philadelphia correctional facility but the injuries “occurred well away from” Philadelphia-owned property. Crowell, 613 A.2d at 1180 (summarizing Mascaro II). The Mascaro II Court reasoned that Philadelphia was immune “for any damages on account of any injury to a person or property caused by any act of
In Chevalier, the plaintiff was mugged in a Philadelphia-maintained parking lot. Chevalier, 532 A.2d at 412-13.10 The Chevalier Court reasoned that under the Act, Philadelphia was immune because “harm caused by third [parties] may not be imputed to a local agency or its employees.” Id. (discussing, inter alia, Mascaro II). Because the plaintiff‘s “injuries were caused by the criminal acts of a third party, [Philadelphia was] insulated from all liability for the harm caused by such a party.” Id. (emphasis in original). Subsequently, courts applied the holdings strictly.
In Crowell, our Supreme Court held we misunderstood its prior decisions. In Crowell, the plaintiffs and a drunk driver were each driving in opposite directions. Crowell, 613 A.2d at 1179. Philadelphia, however, had wrongly placed a sign that directed the drunk driver to turn into the plaintiff‘s vehicle, injuring them. Id. A jury found Philadelphia was 20% negligent, and this Court reversed the judgment against Philadelphia based on Mascaro II. Id. at 1180.11
The Crowell Court reversed, holding we had misconstrued Mascaro II, which involved vicarious liability. Id. at 1181, 1183.12 Our Supreme Court then explained how to identify factual scenarios that could potentially trigger one of the exceptions to immunity. Id. at 1183. To invoke one of the immunity exceptions properly, the “specific facts” must “fall squarely within one of the exceptions.” Id. at 1184. If the specific facts allege the local agency‘s joint negligence with the third party (as opposed to vicarious or secondary liability), then the local agency could be held liable. Id. (holding that when “a plaintiff is injured and brings an action against a governmental unit, the governmental unit can be subjected to liability despite the presence of an additional tortfeasor
In Jones, our Supreme Court reiterated that a municipality could be held jointly liable for negligence even if the municipality did not injure the plaintiffs. Jones, 700 A.2d at 418. In that case, the plaintiffs were injured “when a car being pursued by the police collided with” the plaintiffs’ car.14 Id. The plaintiffs sued, inter alia, Philadelphia and the police officer. Id. The defendants successfully moved for summary judgment, reasoning that they could not be “liable for the criminal or negligent acts of the fleeing driver” under
In sum, notwithstanding Section 8541‘s language stating that a local agency is immune from liability for harm caused by “any other person,” our Supreme Court limited the application of that clause to factual scenarios involving vicarious liability. Crowell, 613 A.2d at 1181, 1183. In contrast, a local agency could be jointly liable for negligence even if “any other person” harmed the victim. Powell, 653 A.2d at 622, 624 (explaining that “any violation of a criminal statute” does not constitute “a superseding cause. Instead, the proper focus is not on the criminal nature of the negligent act, [e.g., sexual assault,] but instead on whether the act was so extraordinary as not to be reasonably foreseeable“). In short, our Supreme Court rejected a broad reading of Chevalier and Mascaro II.
Instantly, in accord with our Supreme Court‘s rejection, we also rebuff the District‘s broad reading of Section 8541 that would immunize the District for damages caused by any other person. Chevalier and Mascaro II, which predate the sexual abuse exception, suggest a sweeping immunity for any harm caused by third parties. See Chevalier, 532 A.2d at 413; Crowell, 613 A.2d at 1181 (rejecting a broad interpretation of Mascaro II). Subsequently, our Supreme Court rejected any such suggestion, reasoning that local agencies can be jointly liable for harm caused by third parties, including “criminal or negligent acts” of third parties. See Crowell, 613 A.2d at 1183-84; Jones, 700 A.2d at 420. A local agency thus does not have immunity if the specific, alleged facts “squarely” fall within one of the enumerated exceptions17 and advance a claim of joint—not vicarious or secondary—liability. Crowell, 613 A.2d at 1183-84; Jones, 700 A.2d at 419.
Accordingly, per Crowell, we examine whether Plaintiffs have alleged “specific facts” that would establish the District‘s joint negligence despite the presence of additional tortfeasors, i.e., the two minors. See Crowell, 613 A.2d at 1183-84 (explaining that the drunk driver could be a joint tortfeasor); Jones, 700 A.2d at 419-20 (stating that the police officer could be held jointly liable for negligently pursuing the fleeing driver). To paraphrase Crowell and Jones, when Plaintiffs are injured and they sued the District, the District may be liable despite the presence of the two additional minor tortfeasors if the District could be jointly negligent with the two minors. See Crowell, 613 A.2d at 1184; Jones, 700 A.2d at 419.
Here, similar to the Crowell and Jones plaintiffs, Plaintiffs have alleged that the District and its employees’ negligent actions resulted in injury. Like the wrongly placed sign in Crowell and the police officer pursuing a fleeing driver in Jones, the District or its employees did not directly injure the minor victim. Cf. Crowell, 613 A.2d at 1183-84; Jones, 700 A.2d at 419-20. Rather, Plaintiffs alleged that the District is liable even when their injuries were caused by the criminal acts of a third party, e.g., a drunk or fleeing driver, or a minor. See
To provide context for the parties’ arguments, we reiterate the relevant statutory language. “The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency [(prefatory clause)]: [(a)] Conduct which constitutes an offense enumerated under section 5551(7) (relating to no limitation applicable) [(subclause (a)), and] [(b)] if the injuries to the plaintiff were caused by actions or omissions of the local agency which constitute negligence [(subclause (b))].”
1. Arguments
The District interprets the sexual abuse exception as requiring that the District engage in proscribed “conduct.” Dist.‘s Br. at 15. Specifically, the District contends that Plaintiffs must first allege that a District employee engaged in conduct constituting an offense under
Plaintiffs counter with their own interpretation. In their view, subclause (a) contains no limiting language that would require a District employee to engage in the proscribed conduct. Plaintiffs’ Br. at 33-34. In Plaintiffs’ view, subclause (b)—the conditional “if” clause—limits Plaintiffs’ negligence claim to injuries separate from the “sex crime itself.” Id. at 34. In other words, per Plaintiffs, the District may be negligent for misconduct that enabled the
2. Discussion20
In McCoy, the defendant, while inside a crowded restaurant, fired a gun into the kitchen. McCoy, 962 A.2d at 1161-62. The trial court convicted the defendant for firing a gun “from any location into an occupied structure.” Id. (cleaned up) (imposing no sentence for this conviction). The trial court interpreted the statute as proscribing firing a gun “both into and from within the occupied structure.” Id. The Superior Court affirmed on different grounds, reasoning that the clause “from any location” meant the defendant could be inside “the occupied structure when the gun was fired.” Id. Our Supreme Court held the lower courts erred by failing to interpret the term “from any location into” in context with the overall statutory provision. Id. at 1166-67 (emphasis added). The lower courts’ interpretations were flawed, per McCoy, because both interpretations required inserting the term “or from within” into the statute: firing a gun “from any location into, or from within, an occupied structure.” Id. at 1163 (emphasis in original). Our Supreme Court thus pruned the emphasized clause out of the original statutory language: “from any location into an occupied structure.” Id. at 1167.
But our Supreme Court could not harmonize the statutory phrases “from any location” and “into” “to give full logical effect to both.” Id. (opining that the parties presented arguments that were not “so weak or implausible that the statute can be called unambiguous in this context“). Per the Court, the “plain meaning of the two phrases reveals a latent ambiguity in the statute; one phrase must be interpreted as modifying or limiting the other,” which required applying the rules of statutory construction.21 Id.
More recently, in Herold, our Supreme Court construed the term “it” in a particular clause.
Instantly, like the McCoy and Herold Courts, we agree that the District and Plaintiffs have each presented reasonable interpretations of the sexual abuse exception. Cf. McCoy, 962 A.2d at 1163 (discussing the latent ambiguity of the clause “from any location into an occupied structure“); Herold, 329 A.3d at 1178-80 (holding that the parties’ presented reasonable grammatical arguments construing the term “it” and the latent ambiguity in the term “for any disability or death“).
The District constructs the prefatory and sexual abuse clauses together as follows: the following acts by (1) a local agency or (2) any of its employees may result in the imposition of liability on a local agency: (a) conduct, i.e., acts by a local agency or its employees, which constitutes sexual abuse (b) if the injuries to the plaintiff were caused by actions or omissions of the local agency which constitute negligence. See
Plaintiffs, similar to the employee in Herold who also focused on a conditional clause, disagree. In their view, the following acts by a (1) local agency or (2) any of its employees may result in the
Both are reasonable, albeit imperfect interpretations. Cf. Herold, 329 A.3d at 1178-80. The District‘s interpretation is reasonable because governmental immunity statutes are strictly construed to limit exceptions to immunity. Under its strict construction, the District loses immunity only when a District employee commits sexual abuse. But because a District—a local agency—cannot commit sexual abuse, the District‘s interpretation of “conduct” is flawed. Cf. McCoy, 962 A.2d at 1167 (emphasizing that the “plain meaning of the two phrases reveals a latent ambiguity in the statute“); cf. also Hanover, 2024 WL 2393038, *13. The District‘s interpretation is also flawed because it does not acknowledge that a local agency‘s failure to act could have enabled sexual abuse. Cf., e.g., Crowell, 613 A.2d at 1183-84 (holding that a municipality could be jointly liable when the municipality was negligent in placing a traffic sign that misdirected a drunk driver into the plaintiff‘s vehicle); Jones, 700 A.2d at 419 (deciding that a jury must resolve whether the municipality negligently maintained the police car and whether the municipality could be jointly liable with the fleeing driver for the plaintiff‘s injuries).
In turn, Plaintiffs’ interpretation is reasonable because it creates a direct causal connection between the District‘s alleged negligence and Plaintiffs’ injuries, regardless of who committed the sexual abuse. Cf. also Hanover, 2024 WL 2393038, *13. Plaintiffs’ interpretation reflects the principle that a municipality may be liable for negligence that enabled harm by third parties. Cf., e.g., Crowell, 613 A.2d at 1183-84; Jones, 700 A.2d at 419; cf. also Hanover, 2024 WL 2393038, *13. Such an interpretation is also reasonable given that the District is acting in loco parentis when the victim was assaulted. Plaintiffs’ interpretation is also flawed, however, by not sufficiently acknowledging the plain language of the prefatory clause, i.e., “the following acts by a local agency or any of its employees.”
C. Legislative Intent of the Sexual Abuse Exception
Because both interpretations are reasonable, albeit somewhat flawed, we invoke
As for the former, the District begins with the premise that the fundamental purpose of the Act is to shield the public fisc. Dist.‘s Br. at 30. The District reminds us of its budgetary constraints, self-insured status, and inability to raise its own taxes in financing the education of 200,000 students. Id. at 30-31. The District complains that the legislature removed the $500,000 statutory cap for sexual abuse claims and extended the statute of limitations for almost 40 years after the victim turns 18 years old. Id. at 31. Preventing “unusually large recoveries in tort cases,” the District maintains, was an important public interest of the Act. Id. at 34.
Plaintiffs counter that the legislature weighed all of these public policy considerations prior to enacting the sexual abuse exception. Pls.’ Br. at 37. The District‘s financial arguments, Plaintiffs emphasize, are “properly directed to the legislature” and not this Court. Id. Plaintiffs also note there is no guarantee that they will succeed on their case: they must plead and prove negligence. Id. at 38.
As for legislative history, District recaps the history behind the Act as a whole, which in the District‘s view, immunized agencies from tort damages unless an agency employee was negligent. Dist.‘s Br. at 10, 22-23. The District maintains that nothing in the history suggested that the legislature intended to waive the District‘s “immunity for the acts of third parties.” Id. at 22-25 (analogizing to Burns v. Blair Cnty., 112 A.3d 690 (Pa. Cmwlth. 2015), and City of Phila. v. Buck, 587 A.2d 875 (Pa. Cmwlth. 1991)). The District also relies on statements by Representative Mark Rozzi, the lead legislative sponsor of the sexual abuse exception, who identified several sexual abuse scandals that prompted the legislation. Id. at 26. The District construes those scandals as having two elements in common: (1) the agency employee—and not a third party—committed the sexual abuse; and (2) the agency concealed the sexual abuse. Id. at 26-27.
Plaintiffs reject the District‘s interpretation of Representative Rozzi‘s statements. Pls.’ Br. at 35-36. In Plaintiffs’ view, Representative Rozzi “unambiguously explained” that the sexual abuse exception was intended to provide “for absolute parity in the handling of sexual abuse claims between public and private institutions.” Id. at 36 (quoting H. Journal, 4/10/19, at 510); accord Amicus Br. of Rep. Mark Rozzi, at 3-4, 8 (citation omitted).30
Representative Rozzi similarly argues that the sexual abuse exception was intended to (1) hold public institutions accountable for enabling “abusers to commit their crimes against” children, and (2) expand a plaintiff‘s “right to sue” to include such public institutions. Amicus Br. of Rep. Mark Rozzi, at 8-9 (cleaned up). To achieve this goal, Representative Rozzi explains the deliberate use of the language “actions or omissions” in the sexual abuse exception to ensure that public institutions could be held negligent for facilitating sexual abuse. Id. at 9-10 (rejecting the District‘s focus “on the employment status of
In ascertaining legislative intent, we presume the legislature did not intend an absurd result and intended to favor protecting the public fisc.
Instantly, even accepting as true the District‘s assertions regarding the consequences of Plaintiffs’ interpretation, the legislature decides public policy. See id. We must presume the legislature also recognized its duty of protecting the public fisc, including the potential monetary harm to municipalities from large tort recoveries. See id.;
As for the parties’ competing interpretations of legislative history, we favor Plaintiffs’ interpretation, which relies on the floor statements of Representative Rozzi, the main legislative sponsor. See, e.g., H. Journal, 4/10/19, at 510. As the lead sponsor, he asserted that the intent of the legislation was to hold municipalities—like the District—accountable for negligently enabling sexual abuse. Amicus Br. of Rep. Mark Rozzi, at 9-10. The ability to hold the District liable, of course, does not mean that Plaintiffs presumptively prevail or that the District cannot successfully interpose some downstream defense. See Dist.‘s Br. at 17 n.3. Further, we reject the District‘s reliance on Burns and Buck, as neither case addressed the sexual abuse exception. See Burns, 112 A.3d at 700 (construing the real property immunity exception); Buck, 587 A.2d at 878-89 (same).31 For these reasons, even after considering the consequences of the parties’ competing interpretations, we respectfully reject the District‘s concerns about the consequences of Plaintiffs’ statutory interpretation. See
IV. CONCLUSION
For these reasons we affirm the trial court‘s order overruling the preliminary objections filed by the District. We dismiss the District‘s February 27, 2024 request to take judicial notice of related appeal as moot. We remand for further proceedings.
LORI A. DUMAS, Judge
Judge Fizzano Cannon did not participate in this decision.
ORDER
AND NOW, this 9th day of June, 2025, we AFFIRM the order entered by the Court of Common Pleas of Philadelphia
Jurisdiction relinquished.
LORI A. DUMAS, Judge
Notes
(a) Liability imposed.--A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.
(b) Acts which may impose liability.--The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
. . . .
(4) Trees, traffic controls and street lighting.--A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody or control of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.
. . . .
(9) Sexual abuse.--Conduct which constitutes an offense enumerated under section 5551(7) (relating to no limitation applicable) if the injuries to the plaintiff were caused by actions or omissions of the local agency which constitute negligence.
An offense under any of the following provisions of
. . . .
Section 3124.1 (relating to sexual assault).
Unlike the plaintiffs in Crowell and Jones, Plaintiffs did not sue the third parties, i.e., the two minors, as joint tortfeasors. See generally
The Court then examined the purpose underlying workers’ compensation, in which injured employees received “certain, but reduced, benefits” in exchange for waiving their right to sue “employers for job-related injuries.” Id. at 1182. This purpose, the Herold Court reasoned, would be undermined if employees had no right to sue employers and seek compensation for injuries occurring outside of the four-year window. Id. In other words, “claims by an injured worker related to disability or death resulting from an occupational disease and which occur outside of the four-year period are not barred by the exclusivity provision, and such an employee may seek compensation against his employer in a common law civil action.” Id. at 1192 (footnote omitted).