Robbins Ex Rel. Robbins v. Cumberland County Children & Youth Services

in weekly wage, based formally Colpetzer’s average ruled an issue not upon therefore weekly part average on the Accordingly, ruling the established before her. WCJ’s Colpet- period of time when wage vacated. for on this issue must be of a receiving wages not because zer reasons, foregoing the the Board’s For The or- disability. Board’s work-related in and part is vacated and remanded order affirmed respects. in all other der is part. Specifically, in the Board’s affirmed it order is vacated insofar as affirms relinquished. Jurisdiction regarding conclusions the issue WCJ’s injury was re- whether Claimant’s cervical Fur- injury. to the earlier shoulder

lated

ther, the Board’s order is vacated insofar regard

as it affirms the order WCJ’s average

to calculation of Claimant’s

weekly wage. This matter is remanded to for further remand the WCJ Board average recalculate Claimant’s 309(d)

weekly wage under Section

Act, part in aver- based established

age weekly wage period time ROBBINS, minor, by Fitzgerald receiving wages when Claimant was not Kerry Robbins, disability. because of a work-related The and his Erin Robbins guardians, in parents order is affirmed all re- and Board’s other and natural Kerry Robbins, in spects. and Erin Robbins right, Appellants, own their ORDER NOW, day July, AND this 17th Compensation

the order of COUNTY CHILDREN Workers’ CUMBERLAND (Board) County SERVICES, Appeal above-cap- Board AND YOUTH Gary Shuey, Cumberland, I. Indi matter is hereby part tioned vacated Capacity vidually and in his Official Specifically, and affirmed part. Agency is af- for Cumber Board’s order vacated insofar as it Administrator County and Ser land Children Youth firms the determination of the workers’ Individually (WCJ) vices, Rupp, Dianne compensation judge regarding Capacity Work Colpetzer’s in her Official as Case issue of whether cervi- William County Supervisor injury cal for Cumberland was related to earlier shoul- Services, and Youth injury. der order further Board’s Children Runyon, Individually vacated insofar as it affirms the WCJ’s Christina Capacity as Case Worker regard her Official order with to the calculation County Children weekly This for Cumberland Colpetzer’s average wage. Wendy Hoverter, Services, B. fur- Youth matter is remanded Board Individually in her Ca- Official to recalculate ther remand the WCJ judg- necessary original litigated and (Bethenergy Compensation Appeal Board men’s Mines, Inc.), ment). give 632 A.2d 1302 the benefit 534 Pa. We will Claimant (the (1993) judicata or doctrine of broad res toas and vacate the WCJ’s decision the doubt preclusion re-litigation in a forecloses issue issue. fact or that was action of an issue of law later pacity Program Director for Cum- County

berland Children and Youth

Services, Orr, and Darlene Individual-

ly Capacity in her Official as Pro-

gram Director for Cumberland Coun-

ty Services, Children and Youth Fitzgerald.

Susan Pennsylvania.

Commonwealth Court of

Argued April July

Decided B. Druby, ap-

Richard for Harrisburg, pellants. Marcello, B.

Douglas ap- for Harrisburg, pellees. Duffy,

Elizabeth A. Philadelphia, curiae, Support amicus Center for Child Advocates. McBeth, T.

Anthony Harrisburg, curiae, County amicus Commissioners As- n Hbg. soc. of DOYLE, Before Judge,1 President COLINS, McGINLEY, Judge, Judge, SMITH-RIBNER, PELLEGRINI, Judge, FRIEDMAN, Judge, Judge, and LEADBETTER, Judge. Judge BY

OPINION LEADBETTER. Fitzgerald Robbins, child, Seth a minor adoptive parents, and Erin Kerry his Robbins, appeal from the order Court Common Pleas Cumberland County, preliminary which sustained ob- jections complaint dismissed their parties than Fitz- all other Susan gerald, natural Rob- Seth’s mother.2 The money damages bins seek under 42 U.S.C. Fitzgerald assigned opinion joined This case writer 2. Susan was as an addition- Finding appeal al that defendant. immediate Judge prior Doyle to the date when President case, would facilitate resolution of the entire January judge assumed the status of senior Pleas Common entered this dismissal as 341(c). pursuant to Pa. finedorder R.A.P. from yon, accompanied by an officer § 1983 and tort and State constitutional theories, Department, alleging Spring law Cumberland Police visited Silver Services, visit, County Youth Fitzgerald Children and home. After the Ms. County and several individu- Cumberland the officer that she did not Runyon advised directors, ally named administrators and that she suspect abuse home “CYS”) (collectively failed to caseworkers the file. No further going close abuse inflicted physical investigation criminal was conducted at Fitzgerald. allege Susan The Robbins that time. its employees CYS several of Stephen, Seth’s March On investigate allegations properly failed brother, frac- sustained a similar younger and, in the Fitzgerald child abuse house reopened his forearm. ture to left greater vigilance, had CYS acted with x-rays fractures file and sent the abuse suffered Seth would been have independent physician, Dr. Danielle of an prevented. scope appeal As M.D., Boal, who determined that frac- from an sustaining preliminary order ob- “remarkably tures were “unusual” and jections necessarily only raises issues of proximity and in and that similar” kind law, plenary. Finding our review is suspicions of raised abuse. pleas applying common did not err a complete Boal recommended skeletal Dr. law, result, in the spite of harsh we must survey in the event that further fractures affirm.3 were sustained. physical This action arises out of the and 2, 1995, injured Fitzgerald first On June psychological by abuse suffered Seth by fracturing his left arm and inflict- Seth the Fitzgerald. hands of Susan injuries, multiple closed contu- ing head years Seth was three and old lived with his and Seth was taken to a sions abrasions. mother his two in and brothers Silver knowledge by and hospital different CYS Spring Township, County. Cumberland alleged abuse not in this incidence of The first of Fitzgerald’s evidence abusive complaint. point prior At the some behavior to light February came on file, closing Runyon the Ms. made a second 1995, when Seth’s older brother was taken However, the Fitzgerald visit to home. the emergency complex with a room nearly of at three despite knowledge least fracture left days to his forearm. Two by arm fractures the later, identical sustained Seth’s brother a was admitted with children and the advice of Dr. Fitzgerald fracture, by second forearm also inflicted 19, 1995, Boal, she the file on June closed Fitzgerald. Based arm on two similar again the of abuse fractures, noting suspicions that just sustained two days apart, invalid. closed the file without the were CYS treating physician referred the case to any further investigating whether investigation possible CYS child children Fitzgerald sustained assigned abuse. the matter to case- were CYS obtaining any records in- and without medical Runyon worker Christina further 13, 1995, vestigation. boys. Run- On March Ms. for the Robbins, Following argument panel participated a behalf of while before of this on court, directing an mat- we entered order General Office of Coun- Commonwealth's reargument ter for before the court en banc along County Commissioners As- sel with the inviting participation and amicus curiae Pennsylvania submitted briefs sociation parties. behalf We have received the of both County argued support of Cumberland and argument benefit briefs as as oral well Children and Youth Services. Support Center for Child Advocates who 29, 1995, August a Stephen placement On suffered medical care as well as the' seizure Fitzgerald fatal when suffocated and conditions of their terms visitation with a pillow. county him coroner Fitzgerald. Fitzgerald permitted immediately investigation initiated visitation supervised with Seth until her reported suspicious the death was parental rights were terminated and result, and, as a autopsy. ordered an On adopted the Robbins. 80, 1995, August report CYS received a 2, 1998, April On the Robbins filed the Stephen had suffered seizures underlying suit the Court of Common and had past sustained a arm frac- prior alleging Cumberland a County, Pleas of Runyon Fitzgerald ture. Ms. visited § of action under 42 1983 for cause U.S.C. day. requested home the next then She due violations process pursuant Fitzgerald medical records chil- of the Amendment, Fourteenth violations dren scheduled an additional home Pennsylvania and various Constitution However, for September visit law Specifically, State tort claims. abuse, strong indicia of Ms. despite ongo- a Robbins contend result Runyon allowed reschedule Fitzgerald to ing Fitzgerald, per- abuse which CYS the home visit for two later and weeks facilitated, mitted and Seth suffered severe allowed Seth and his to re- older brother permanent physical inju- and mental 12, 1995, inmain her care. September On 19, 1998, May prelimi- ries. filed On CYS visit, Fitzgerald the date the cancelled nary objections demur- nature of a attempted placing suffocate Seth 15, 1999, By rer. order dated January face, over pillow. thereby inducing his objec- trial court sustained the preliminary day, seizure. severe The next team of and dismissed all tions claims CYS. professionals removed the two re- claim, the Section court Rejecting maining Fitzgerald children' from the held that the defendants had no to home. protect private from incidences of Seth' opined The team that death Stephen’s' Further, violence. the did not defendants by and the suffered the other two in create the which his resulted could be children the result of Munchausen injuries, nor a special relationship formed by Syndrome Proxy.4 continued to CYS that with him would serve to draw the investigate allegations the of abuse and into a claim. rights defendants federal civil that very concluded Seth was vulnerable to rejected The court further the claim for age. due to his After young abuse review- of the Pennsylvania violations Constitution the ing speaking medical evidence and process under the same substantive due to both Seth and conclud- Fitzgerald, CYS analysis. Finally, regard with the State the involving ed that incidences of abuse claims, the court Cum- tort law held that arm, Seth’s fractured laceration County, County berland Cumberland CYS attempted

head and suffocation were directors, and individual CYS adminis- founded. protected trators and caseworkers were immunity. After the children from fol- governmental appeal were removed This home, over CYS assumed control their lowed. interventions, syndrome sary investigations has as: and been defined This consequences, serious health in- occasional of or abuse in- a form child maltreatment mother) cluding of death the child. (usually flicted caretaker (26th Dictionary Stedman’s Medical 1736 symptoms of induc- with fabrications and/or disease, ed.1995). signs leading of tion of to unneces- person rights, of challenge deprived conduct reviewing a When objections privileges, or immunities secured sustaining preliminary an order the United demurrer, or the laws of in of a we must Constitution the nature alleged States. on the facts determine whether recovery that no certainty

law states with Parratt, Id. (quoting Anelli Arrowhead possible. is Lakes 420). also 68 L.Ed.2d See S.Ct. (Pa. Ass’n, Inc., 357, 359 Cmty. 689 A.2d § general, In the State U.S.C. Cmwlth.1997). true all accept We as well- indi- obligation to protect no constitutional allegations material facts pleaded ac- by private viduals from harm inflicted complaint, as well infer averred area is case in this tors. The seminal therefrom, reasonably deducible ences Winnebago County Depart- DeShaney v. overruling doubt in resolve favor Services, 189, 109 ment 489 U.S. Social Preliminary objections Id. the demurrer. (1989), L.Ed.2d which S.Ct. for dismissal of a cause calling county allegations also involved in cases that are only should be sustained from the agency failed to a child Id. clear and free doubt. parent. argues, abuse a natural CYS DeShaney agreed, trial court FEDERAL CIVIL RIGHTS CLAIMS control. directly point is should In through Counts I V their court that the trial The Robbins contend complaint, rights assert civil Robbins line of disregarded a well-established § alleging violations under U.S.C. cases, sup- DeShaney, decided after responsible for the harm in port their causes of action. upon Fitzgerald flicted Susan mother DeShaney, the child and his right violation of his constitutional sub under Sec- brought an action Wisconsin process stantive due under the Fourteenth county, the social tion 1983 provides Amendment.5 Section 1983 a civ em- department services and individual federally il remedy deprivations pro department. plaintiffs ployees rights by persons acting tected caused un county deprived had alleged that Station, der color of State law. Anselma the Due liberty child of violation of his Inc., Assoc., Ltd. v. Pennoni 654 A.2d Amend- Process of the Fourteenth Clause (Pa.Cmwlth.1995) (citing Parratt v. by fading protect against ment him a 1908, Taylor, 527, 535, 451 U.S. 101 S.Ct. by the perpetrated known risk of violence (1981), rev’d on 68 L.Ed.2d other held Supreme Court natural father. Williams, grounds, Daniels U.S. no imposes that the Due Process Clause (1986)). 327, 662, L.Ed.2d 662 106 S.Ct. duty protect on a State to an affirmative determining whether have plaintiffs violence: against private acts of individual a cause of action under Section stated 1983, inquiry the must focus whether the Due language [N]othing the the two essential elements the State requires itself Process Clause are present: life, liberty, property the by private

(1) its invasion complained the citizens whether conduct limi- a phrased as acting actors. The Clause person committed under act, (2) not law; power to tation on the State’s of state whether color life, liberty, property, or without person 5. The Fourteenth Amendment United XIV, process amend. pertinent due law.” Const. provides, Constitution States § part, deprive any State shall ... "[n]o guarantee of certain minimal levels of That the State once took temporary cus- safety and security. tody of Joshua does not alter analy- sis, for when it returned him to his 195, 998, at Id. 109 S.Ct. 103 L.Ed.2d 249. it custody, placed father’s him in no Thus, that, the Court concluded “[i]f worse position than that which he Due Process require Clause does not all; would had have been it not acted at provide particular State to its citizens with the State does not perma- become the services, protective it follows guarantor nent of an safety individual’s State cannot be held hable under by having once offered him shelter. Un- Clause for that could have been circumstances, der these the State had averted had it provide chosen to them.” no constitutional to protect Joshua. 196-97, 998, Id. 109 S.Ct. 103 L.Ed.2d Id. at 109 S.Ct. 103 L.Ed.2d 249. In DeShaney, Supreme Court also Nonetheless, the Robbins contend that rejected the plaintiffs’ arguments that the more recent appeals cases the courts of county parties were accountable under the provide a basis for holding CYS liable special relationship and state-created dan- special under the relationship and state- ger theories. The Court limited applica- danger created disagree. theories. We . tion of the special relationship theory to Even assuming the lower federal situations where the State a person takes so, courts have the authority to do none of custody into its and holds him there subsequent cases has undermined the against his will. The Court reasoned that: clear DeShaney limitations placed upon

[W]hen State the affirmative ex- theories, these and we find these limita- power ercise of its so restrains indi- tions fatal to the Robbins’ claims. liberty vidual’s that it renders un- him himself,

able to care for and at the same Danger Theory 1. State-Created time provide fails to for his basic human can Liability arise under Section needs ... it transgresses the substan- 1983 for acts by private committed citizens tive limits on state action set where the danger State creates the or risk Eighth [Federal Constitution’s] Amend- of harm that plaintiffs injury. led to the ment and the [Fourteenth Amend- Tedder, Kneipp 95 F.3d 1205-09 Due ment’s] Process Clause. . (3d Cir.1996) In Kneipp, police officers Id. at 109 S.Ct. 103 L.Ed.2d 249. stopped pedestrian and her husband regard

With to the state-created they walking while were home from a bar. theory, rejected plaintiffs’ Court The officers sent the home and husband argument that since the State had created left the woman to walk despite home alone child, the danger to the it thereby cold weather and obvious inebriation. The holding, hable. In so the Court stated woman injures sustained when she severe that: fell down an embankment and suffered may hypothermia

While State have been aware of permanent brain dam the dangers that Joshua in the age. reviewing finding After cases a via faced world, played free it no part their ble claim under the danger state-created creation, anything theory, nor did it do to ren- particularly Cornelius v. Town of Lake,6 der him Highland more vulnerable to them. and Wood v. (11th Cir.1989), 1066, 1784, denied, Cornelius, 6. 880 F.2d 348 494 U.S. 110 S.Ct. 108 reh. 1093, (1990). Cornelius, sub.nom., 887 F.2d prison L.Ed.2d 785 Spears In state cert. denied v.

1247 Concluding Ostrander,7 F.3d at 1209. Kneipp, stan 95 the court reiterated the doctrine,8 and applicable process dards violation of a due the elements found: danger doctrine under the state-created averred, the court reversed had been allowing police,

The conduct remanded grant summary judgment and of Joseph go home alone and in detain- the case trial. Samantha, her ing sending and then seriously home unescorted in a intoxicat- Wood, a who had been In woman weather, in cold ed state made Saman- a driver abducted passenger of drunk juryA tha more vulnerable to harm.... arrested after the officer who raped find that was in a worse could Samantha high- her in a stranded companion her than position police after the intervened home at area five miles from her crime if had not they she would have been that, a.m. The court concluded 2:30 a done so. As result of affirmative dispute factual genuine has raised “Wood officers, or police danger acts of the deprived her regarding whether Ostrander injury greatly risk Samantha liberty protected by the Con- increased. of a interest denied, Cir.1989), (9th program per- 583 cert. officials instituted a work 7. 879 F.2d 938, 341, 305 S.Ct. 112 L.Ed.2d 498 U.S. 111 public mitted inmates to work in areas (1990). dangerous weapons. then access to The State untrained, assigned city employ- an unarmed recognized four Kneipp, the Circuit Third having to work with ee an inmate known imposing liability under common elements history of violent ab- behavior. inmate theory: danger state-created hostage, employee ducted the and held her (1) ultimately was foresee the harm caused subjecting repeated physical her to and sexual direct; (2) fairly actor the State able and Lemacks, We in White threats. note that v. disregard safety willful for the acted in 1253, 1258, (11th Cir.1999), (3) 183 F.3d 1259 relationship plaintiff; existed some there (4) plaintiff; Eleventh Circuit overruled [and] Cornelius the State and between authority create actors their City the State used inconsistent with Collins v. Harker have opportunity that otherwise would not 115, 1061, Heights, 503 117 U.S. 112 S.Ct. party's to occur. existed for the third crime (1992), stating: L.Ed.2d 261 Borough (quoting Mark F.3d at 1208 v. 95 Collins, government Under officials violate Cir.1995), Hatboro, 1137, (3d 51 1152 F.3d rights per- 165, process denied, the substantive due of a 133 516 U.S. 116 S.Ct. cert. (1995)). City custody only by "that also son not in conduct See Cannon L.Ed.2d (E.D.Pa.2000), Philadelphia, F.Supp.2d 460 arbitrary, properly be characterized as can (3d Cir.2001), cert. 'd, 261 F.3d shocking, in a or conscience constitutional aff denied, - -, 122 S.Ct. U.S. Collins, S.Ct. sense.” 503 U.S. (2001) (discussing County Sac L.Ed.2d 151 1061, 117 ... L.Ed.2d 261 Lewis, S.Ct. ramento (1998), which clari 140 L.Ed.2d 1043 passed away a favorite who has Like uncle necessary trigger fault the standard of fied parlor, to be in- Cornelius needs liability 1983 in a state-created under Section Recognizing We do that it terred. so now. claim). appeal, purposes For of this Collins, pro- we was dealt fatal blow the first elements we do not address three dead and buried. The nounce Cornelius as the element Kneipp, discussed in fourth process due when a citi- law on substantive only, dispositive. like the Eleventh We note custody that a who is not in claims zen White, Court in and the District Circuit in unit, agency, or governmental official Cannon, disregard standard that the willful supplied by her is the Collins caused harm would encompassed second element decision, occupies the field which the con appear to with "shocks conflict by Supreme anything we said such exclusion of about standard mandated science” and Lewis. cases such as Collins Court in cases in Cornelius. 1248 by affirmatively

stitution placing 1045, (1993)) in 113 her S.Ct. 122 L.Ed.2d 354 . Wood, added) danger and abandoning (emphasis then her.” See also Estate of 879 Burke v. Similarly, Mahoney City, 274, F.2d at 40 F.Supp.2d. 596. White v. (E.D.Pa.1999), (7th Rochford, aff'd, 280-81 Cir.1979), 592 F.2d 381 213 F.3d 628 (3d Cir.2000). triable While Third issue of fact under Circuit the Due Process subsequently question raised some Clause was to have about found been raised this distinction v. in Morse Lower Merion allegations injury to three minor chil District, (3d School F.3d 132 914 Cir. dren. arresting After their uncle for drag 1997) (noting that “the line between an racing on night, police a cold left the chil affirmative act and omission is difficult dren alone an automobile along the side draw”), persuaded we are ap that the eight-lane of an limited highway. access proach court, taken Kneipp which is Both the on the officers scene and the consistent with holdings of the other police department pleas refused of the un circuits, federal is both sound and faithful and, mother, cle later the children’s to take to the holding DeShaney. As the trial them to police station or otherwise court noted in judice, the case sub rescue them plight. from their As was Supreme “expressly Court held that Miller, noted in Pearson State could not be considered to have cre (M.D.Pa.1997), “In each of these ated the danger plaintiff to the minor un cases, agent the State’s plain altered the der even circumstances more compelling tiffs a way situation in such as to place [DeShaney] than those of the present case him or peril her in of a path he had not [Robbins].” Robbins Cumberland Coun faced before State intervention and then Servs., ty Children and Youth No. 97-4669 did nothing to remove or eliminate the risk (C.C.P. County, Cumberland January filed that he had created.” (hereinafter 1999), slip op. at Trial Nonetheless, the Robbins cite Court Opinion). Accordingly, we conclude Kneipp to argue that failing to take the Robbins have failed to allege a children, action to remove the CYS “used constitutional violation based upon the their authority to create an opportunity danger theory. state-created which otherwise would not have existed for Special Relationship Theory specific harm to occur. need Plaintiffs not show an act to The special relationship theory affirmative fulfill (em requirement.” Appellants’ brief at provides liability can arise under Sec added). phasis assertion, however, This is tion 1983 for committed by private acts belied the extended review of federal only citizens if the State entered into a caselaw in Kneipp, contrasts the special relationship plaintiff with the under (where cases of State affirmative a which it duty assumed a to ensure the claim recognized) with the in cases plaintiffs well-being. continued The Rob (where not) volving failure act it was allege by accepting bins the referral “ that, ‘[liability concludes under the abuse, accepted danger theory state created predicated Seth from harm and entered into a special upon the States’ acts which and, relationship despite him with that re affirmative work plaintiffs’ detriments in terms of lationship, CYS acted deliberate indif ” exposure to danger.’ Kneipp, 95 F.3d at ference disregard and in reckless D.R. v. (quoting Middle Bucks Area high degree of foreseeable to Seth. Sch., However, Vocational Tech. F.2d as the Third Circuit noted (3d denied, Cir.1992), Kneipp, cert. the relationship required under

1249 care, a him into foster by placing cus- Seth relationship theory “has a special duty im affir- constitutional corresponding todial element to it—the State must matively provide act to restrain individual’s to for his basic posed upon CYS to on his her own behalf food, shelter, freedom act or needs, medi human such as incarceration, institutionali- through either safety. De and See cal care reasonable zation, limit of comparable or some other 200, 109 at 103 Shaney, 489 S.Ct. U.S. n. 22. personal liberty.” 95 F.3d at 1209 by which we 249. The standard L.Ed.2d Collins, 127-28, 503 at 112 See also U.S. duty this has been determine whether (1992) 1061, 117 261 and S.Ct. L.Ed.2d is CYS acted with such breached whether Pearson, inter- at 855. This danger deliberate indifference to Seth’s pretation, regarding like that the state- Nicini, 212 F.3d to shock conscience. theory, faithful to the created However, the fail as at Robbins to in concept DeShaney, set that “[t]he forth facts demonstrate how CYS sert which affirmative duty to arises not from duty of care. The breached this Robbins knowledge the State’s individual’s that allowed Seth su complain only CYS predicament from in- expressions or its pervised during with his mother visitation him, help to but the limitation tent allege do period. They not Seth it has act imposed on his freedom to abused, any danger or in was further his own behalf.” 489 U.S. abuse, only his of further that contact with Thus, S.Ct. 103 L.Ed.2d 249. because psychological mother caused additional complaint fails to allege restraint assuming, a arguendo, harm. Even liberty personal State on Seth’s relationship a imposes custodial constitu prior to his the Fitzgerald removal from psychological attend tional home, the Robbins failed to a have state like health as a basic human need food and under special cause relation- care, allegation find this inade medical we theory for the ship which occurred quate to a violation of Seth’s constitu state he remained in care. while his mother’s Having rights. custody taken tional Seth, faced a CYS was with Hobson’s However, as the Robbins also off, cutting precipitously, choice between sert a claim for consti violations Seth’s three-year-old a child all contact between rights arising tutional from conduct which he had lived and the mother whom occurred Seth was taken into CYS after (and rights parental since birth as whom held, custody. Third has and Circuit terminated),9 allowing yet not or had been agree, that when a places we the State continuing physical visitation some care, in a child foster enters into State presence supervision of CYS officials. special relationship trigger with the child might opine a psychologist Whatever ing part affirmative duties on the alleged that (3d are no facts Morra, hindsight, there 212 F.3d Nicini State. knew, Cir.2000) (en banc). Therefore, or even suggest CYS when even known,10 option posed have that one special relationship with should entered into (1982)). rights regard tension between In this it must be noted that This compounds Fitzgerald further recognized Supreme "fundamen- Court CYS, cautions dilemma faced restraint liberty parents of natural tal interest finding CYS’ constitutional violation in care, custody management of their rights. attempt to balance these ill-fated Philadelphia, 174 F.3d 368 child.” Miller Kramer, (3d Cir.1999) (citing Santosky v. Nicini, we not here decide 10. As in need 745, 753, S.Ct. L.Ed.2d test is whether the deliberate indifference 1250

a greater psychological risk of harm than old requirement any of Section 1983 claim. the other. We do not believe that the As the Supreme City Court noted in Los of selection of option either can Heller, amount to Angeles 796, 799, 475 U.S. 106 deliberate indifference to Seth’s safety 1571, (1986): and S.Ct. 89 L.Ed.2d 806 well being, absent some additional circum- [N]either Monell v. New York City alleged stances not here. Services, Dept. 658, Social 436 U.S. 98 of 2018, (1978), S.Ct. 56 L.Ed.2d 611 nor 3. Failure to Train any other of our cases authorizes the award of damages against a municipal

A liability claim of under Sec corporation based on the actions of one tion grounded 1983 is also upon the theory of its officers when in fact jury has that CYS failed properly train and su concluded that the officer caseworkers, inflicted no pervise specifically Ms. Run constitutional person harm. If a yon. A municipality’s failure to train em suffered no constitutional ployees injury can serve as the basis for Section officer, hands of the police 1983 liability wheré the individual failure to train is fact that departmental regulations “moving force” behind a constitutional might Harris, violation. have the use of City See authorized consti Canton v. 378, 388-89, tutionally 1197, quite 489 U.S. excessive force is beside 109 S.Ct. 103 (1989). point. 412 L.Ed.2d In light of our dispo sition of underlying upon claims based (emphasis Thus, in original). the constitu the caseworkers’ failure tionality of a municipal policy is irrelevant mother, from his we must conclude that in the absence of á injury constitutional preliminary objections were properly sus causally related to that policy. See Sim tained to claim this as well. To recover mons v. Philadelphia, 947 F.2d under Section upon 1983 based a failure to (3d Cir.1991). Accordingly, since there train the municipal actors who caused the was no breach of constitutional harm, plaintiffs plaintiff must establish actor, owed to Seth any State no Sec “1) both that the failure to train amounted tion 1983 claim could be sustained even if to a deliberate indifference to rights the Robbins were able to uncover some persons with police whom the come municipal policy might which be character 2) contact; and the municipality’s policy ized as deliberate indifference. actually caused a injury.” constitutional Coll., Carroll v. Borough State To the extent that the Third Circuit (M.D.Pa.1994), aff'd, Vineland, 47 Fagan City 22 F.3d 1283 (3d Cir.1995). (3d Cir.1994) F.3d 1160 While fail most has held to the contrary,11we ure to train caseworkers reject have dealt with this construction of Section 1983 as questions regarding the deliberate indiffer inconsistent with pronouncements of the element, ence Court, the existence of a Supreme constitu particularly Heller.12 deprivation Rather, tional is a fundamental thresh- we accept reasoning be measured the risks known Borough to CYSor the 11. We note that in Mark v. Hat boro, (3d Cir.1995), 51 F.3d 1153 n. 13 they risks of which should have been aware. panel questioned of the Third However, Circuit prison we note that in a condition holding Fagan. extent of the We do not case, Supreme applied Court the actual attempt explore question. here Brennan, knowledge standard. See Farmer v. 825, 837, S.Ct. Collins, 12. See also 503 U.S. at 112 S.Ct. (1994). L.Ed.2d 811 1061, 117 L.Ed.2d 261. Liability circuits, claim. rise to constitutional majority federal vast only predicated 1983 can be municipality rule under Section adopt general the that a or con- statutory of federal upon unless a constitu violation cannot be hable there is F.3d at rights. Kneipp, See 95 municipal the actor stitutional tional violation Nonetheless, See, may law create 1210. plaintiffs e.g., the Tri State causing harm. Tulsa, 1150, inter- liberty, right property 239 1154- a or galet City v. F.3d of (10th denied, Due Cir.2001), by the Federal protected cert. 516 est is then 56 turn, deprivation of 340, (1995); a 932, 133 238 Process Clause. 116 S.Ct. L.Ed.2d 867, can the by the form process due State Clay County, v. 205 F.3d 879 Scott 874, (6th Cir.), denied, claim. Howev- predicate 121 of a Section 1983 cert. 531 U.S. er, 179, (2000); pointed out Supreme Evans as the Court 148 L.Ed.2d 123 S.Ct. Cir.1996), (1st Collins, 1033, imposes where law even State Avery, v. 100 F.3d 1039-40 denied, 1210, 117 the federal duty imposed not otherwise rt. 520 U.S. S.Ct. ce (1997); duty creates a “liber- Thompson constitution and that L.Ed.2d 820 137 Cir.1994), (7th Process ty protected by Due 33 F.3d 859 n. 11 interest” Boggs, v. Clause, 1063, 115 does rise to denied, duty of that not rt. 514 U.S. S.Ct. breach ce (1995). Moreover, unless 1983 violation 556 the level of Section 131 L.Ed.2d arbitrary and ca- Fagan there the State action itself analysis, even under the still 503 pricious in the constitutional sense. injury. must be constitutional See Estate 129-30, 1061, 117 City, 112 S.Ct. Mahoney F.Supp.2d Burke v. 40 at U.S. at of Collins, As in none of rejection of the Rob L.Ed.2d 261. 285-87. Since such a claim. against pled support of facts here would primary bins’ causes action princi individual actors is based upon constitutional

ple State no CONSTITUTIONAL PENNSYLVANIA acts citizens from the of CLAIMS citizens, Fagan under private other even also assert a direct The Robbins could direct there be claim no Pennsylvania cause of action under municipal for failure to train defendants Constitution, deprived that CYS alleging to detect and supervise and caseworkers and free right liberty of to be his prevent private abuse. harm Article physical guaranteed I, party l.13 Neither has briefed Section Law 4. Child Protective Services exists the difficult issue whether there money damages action for theory right final direct Robbins’ liabil officials violations against government 1983 ity under Section asserts Constitution, our Law, Pennsylvania violated the Child Protective Services 6301-6385, case not uncovered failing §§ research has Pa.C.S. ob recogn of action was where such a cause necessary failing tain medical evidence Nevertheless, if even a direct ized.14 investigate claims of abuse. properly maintained, our may be give does not cause of violation of State law Mere Const, I, I, § Pennsylvania Pa. art. Article Section 1 provides: Constitution County, Harley Schuylkill equally indepen- 14. But see are free and All men bom dent, (E.D.Pa.1979) (citing and indefeasi- and have certain inherent 195-96 rights, among enjoying which are those Mitchell, ble Pa. 56 A. Erdman acquiring, defending liberty, of life and (1903)). repu- protecting property and possessing and tation, happiness. pursuing their own analysis of the Federal Due Process clause as a local agency would be immune from resolves State constitutional un- liability, claims they contend that the conduct of I, Pennsylvania der Article 1. The Section employees the individual constituted will- Supreme Court require- has held that “the ful serving misconduct to vitiate their im- I, ments of Article Section of the Penn- munity. sylvania distinguish- Constitution are not §§ Under Pa.C.S. 8541- able from those of the Process [Due 8542, commonly referred to “Politi the] Clause of 14th Anendment ... [thus] Act,” cal Subdivision Tort Claims local may apply analysis we the same- to both agencies are immune liability for in Pennsylvania claims.” v. Game Comm’n juries an by caused act of agency, its

Marich, 226, 6, 542 Pa. 229 n. 666 A.2d any person. or other employees See Sec 253, (1995) n. 6 (citing Depart- 255 R. v. 8541.16 tion Section 8545 grants same 440, Welfare, ment Public 535 Pa. 461- of immunity to employee agen of the local 62, (1994)). 142, 636 A.2d 152-53 Accord- cy acting scope within the of his official ingly, agree we with trial court that duties.17 immunity abrogated, This is with the Robbins to claim have failed state a respect to only, individuals for conduct under Pennsylvania Constitution.15 crime, fraud, constituting a actual actual malice or willful misconduct. Diaz v.

STATE TORT CLAIMS AND Houck, 1081, 159 A.2d Pa.Cmwlth. 632 PUNITIVE DAMAGES (1993). § 42 1085 See also Pa.C.S. 8550. We likewise conclude that the trial Breach, King In v. 115 Pa.Cmwlth. court properly dismissed the State tort (1988), 540 A.2d 981 type we noted the law claims. The Robbins assert a cause of behavior which willful constitutes mis of in negligence as well as claims conduct: under Sections 324 and 46 of the Restate- misconduct, purposes Willful for the of (Second)

ment of Torts for in- intentional law, tort has been defined our Su- and, fliction of emotional distress in a sep- count, preme whereby Court to mean conduct arate they punitive damages.- seek the actor desired to bring about Specifically, the Robbins contend that with result that followed or at least gross negligence CYS acted and in disregard willful aware that it certain for, substantially in- to deliberate to, follow, safety. difference Seth’s While the so that such can be im- desire capacity Robbins concede that CYS in plied. its Evans v. Philadelphia Transpor- Assuming, arguendo, damages that a any any injury direct cause of on account of to a cognizable action would be under State person property by any or caused act of the constitution, immunity under 42 Pa.C.S. agency employee any local or an or thereof 8541-8546, §§ any would serve to bar State person. other constitutional claims asserted CYS. § 42 Pa.C.S. 8541. 8542(b) (granting immunity See Section damages monetary except claims for re- with 17.That section is as follows: conduct, spect eight specific types of none liability generally Section 8545. Official here). applicable is See also Samer- employee agency An local is liable for City Philadelphia, Corp. ic 142 F.3d damages any injury account civil to a (3d Cir.1998). Goode, Agresta 600 See also person property or caused of the em- acts (E.D.Pa.1992). ployee scope of which are within the his office 16. That section is as follows: only duties same as or extent his em- ploying agency subject § immunity generally local to the limita- Governmental provided Except imposed by subchapter. otherwise in this sub- this tions chapter, agency § no local shall be liable for 42 Pa.C.S. 8545. 567, 212 CONCLUSION A.2d Company, tation Pa. (1965). words, In other the term conclusion, we reiterate U.S. Su- synonymous “willful misconduct” in DeShaney: observation preme Court’s See the term “intentional tort.” W. hu- like other lawyers, Judges Prosser, Torts, Handbook The Law of mans, sympathy natural are moved ed.1971). (4th way [the find a a case like misconduct, plaintiff prove To willful compensa- injured] adequate receive desired to must establish actor grievous upon harm inflicted tion for the followed, or

bring about the result that im- yielding But them. before follow, substantially it was certain to least again pulse, is well to remember once it e., Diaz, A.2d at specific i. intent. by the harm was inflicted not allega- here that the 1085. We conclude victim’s natural [the State ... but do not a claim that tions state can parent]. The most that be said appellees requi- individual acted with in this is the functionaries case state injure to As the specific site intent Seth. nothing and did when they stood trial court noted: a suspicious circumstances dictated reading fair of factual allega- [A] more active role for them. conduct, regarding tions the Defendants’ and the reasonable inferences to be therefrom, believed, if drawn do not sup- may pre- of well people Wisconsin a port any conclusion that of the individ- liability fer of which would system a malignant ual acted defendants with place upon the State and its officials feelings of disregard or a wicked to act in responsibility for failure situa- plaintiff. interests of the minor Nor do They tions as present such one. they support a conclusion that such if may system, they such a do not create defendant acted with an intent that the already, by changing the tort law have it injured, plaintiff minor be or with an regu- of in with the the State accordance awareness that his were sub- But lawmaking process. they lar should most, stantially to At certain occur. it them this upon not have thrust complaint a in presents series of events the Due Process expansion Court’s of judgment by an a

which error of defen- of the Fourteenth Amendment. Clause in dant an failing recognize unusual 202-203, 109 S.Ct. DeShaney, 489 at plain- minor personality disorder 998, we Accordingly, L.Ed.2d 249. tiffs in the most tragic mother resulted sustaining CYS’ affirm the court’s order consequences. of objections dismissing the preliminary Trial Opinion Court 19. complaint. Finally, agreement note we our that punitive damages with the trial court ORDER relief, a form not a cause of separate are NOW, day July, AND 18th Pennsylvania action under law. See Mur Inc., January 1999 order Court ray Gencorp, (E.D.Pa.1997).18 Cumberland County Pleas Common Further, punitive damages complaint. Having on the facts as averred determined against municipality or may assessed a suffered not be that CYS not liable the harm Seth, their against sued in unnecessary individual defendants grant it is the Robbins F.Supp. at capacities. Agresta, 797 re-plead damages official opportunity punitive prayer a relief in the substantive counts

the above-captioned hereby life, matter is AF- liberty tect or property of a citizen FIRMED. by private invasion actor. More- over, may while the state have been aware BY Judge DISSENTING OPINION in danger child was no special SMITH-RIBNER. relationship existed between the child and I majority’s dissent from the decision to state, played no role in creating affirm the order of the Court of Common the danger that the child faced nor did Pleas of Cumberland County. The trial anything to render the child more vulnera- court Appellees’ preliminary sustained ob- ble danger. to the jections and Appellants’ dismissed nine- Appellants request reject this Court to count complaint raising claims of civil upon strict reliance DeShaney ap- and to violations, rights a failure to Appel- ply exceptions general to the rule that the Robbins, Fitzgerald minor, lant Seth Due Process provides Clause no basis for a an infliction of emotional distress con- Section 1983 cause of excep- action. Those nection permanent injuries caused provide tions protect may that a the minor biological child’s mother. I also arise out special of certain relationships disagree with majority that this case injured between the state and the child or must strictly be construed under the ru- when a state-created or risk of bric of DeShaney Winnebago County injury harm exists which causes Department Services, Social 489 U.S. Tedder, plaintiff. Kneipp v. 95 F.3d (1989), 109 S.Ct. 103 L.Ed.2d 249 (3d Cir.1996). majority, Unlike the I cases, among other and that Appellants do am convinced that the state-created dan- not have viable state-related causes of ac- ger theory applied should be Appellants’ to against tion Appellees. majority The case, which imposes liability under Section denied Appellants right their to have the 1983 for by private acts committed a citi- facts of by their case determined a reason- danger zen when the or risk of harm caus- jury, by able not this Court. ing plaintiffs injury the was created the In DeShaney the United States Su- Kneipp state. The court agreed that De- preme Court held that the state had no Shaney open left the possibility that a duty constitutional to protect a child from may constitutional violation occur despite his father after the state had received the special relationship. absence of a reports of the father’s abuse. The court court four-part enunciated a state-created denied the child’s civil action under 42 plaintiff test that a must meet to § against U.S.C. social workers and prevail: local officials who complaints received (1) the child was any abused but failed to take the harm ultimately caused was fore- direct; (2) action to remove the child.1 The court fairly seeable and the state reasoned that the Due Process Clause of actor in disregard acted willful for the (3) the Fourteenth imposes Amendment no safety plaintiff; there existed obligation affirmative on the pro- relationship state to some between the state and doctors, detective, petitioner’s 1. The police Section 1983 cause of ac- after two a social caseworkers, alleged respondents deprived tion that the hospital personnel service and rights child of his county attorney jointly substantive under the Due determined that Process Clause of the Fourteenth Amendment because insufficient evidence of child abuse existed, by failing longer to him his father's the child could no remain in Although custody initially custody, particularly abuse. with- the court’s in this where held, the court returned the child to his father instance the father denied abuse. (4) parent to foster opposed a plaintiff; parent the state actors used as change which to an not standards authority opportunity their create should con- agencies employees their would not have existed social and otherwise Ford, 899 investigations.” party’s for the third crime to occur. duct their complaint 233. The averred F.Supp. at analyzed Kneipp If under the properly investigate faded to the father’s that CYS demonstrate, test facts averred report infor- and to known circumstances first, reasoning DeShaney that the mation, disqualified him which would have denying apply. relief does not The Su- custody of the regaining child. strictly a preme Court decided the case on test, I special relationship agree adopted which The district court Ford here, apply danger theory, permit does not and at time no did state-created liability against plaintiff prove court relief under the state-creat- ted the to foreclose if could danger theory ed factual the CYS defendants she establish appropriate when dangerous envi circumstances exist. It did not rule that a that state actors created a ronment, dangerous a to knew that it and special relationship prerequisite liability injury authority opportu in all their an state cases due used create Second, private nity party violence. if otherwise unavailable for third believed jury, must exist to the facts as averred demonstrate that to commit crime. Evidence harm suffered Seth was foreseeable show the defendants’ indifference direct, reasoning that state acted in a Id. The and actors child’s conditions. safety, persuasive willful disregard holding particularly for the child’s in Ford are clearly relationship some existed between the here where Seth was under CYS’ authority supervision by state and the child and that state actors virtue of the authority opportu- family used their files agency’s open create case on monitor, nity for Seth’s mother to him. That affirmative abuse opportunity investigate otherwise would not ex- went on supervise have what acquired isted but it informa state actors’ conduct. the' child’s home after perpetrated tion about the series of abuses analogous An situation presented was brothers, hospi and his their against Seth Johnson, Ford and the death of Seth’s oldest talizations (3d (W.D.Pa.1995), aff'd, 116 F.3d 467 Cir. Do Stephen. brother See also Currier 1997). The District Court for Western (10th Cir.2001) ran, (citing 242 F.3d 905 Pennsylvania District of denied the CYS Ford, cases, among applied other the court civil defendants’ motion to dismiss a action theory danger and held the state-created aby biological arising filed mother out of inju may officials be liable for that state child, two-year-old her death of when the private ries caused actors Shawntee Ford. The child beaten to was harm). leads danger create that to officials granted death her father after he was only three scheduled visits to custody family Allegheny court CYS made Fitzger- Susan Fitzgerald court held that home before County. The district murdering ultimately re arrested where CYS takes affirmative action to ald in March Stephen. from re Once CYS intervened parent move a child then duty affirmative to to it assumed turns the child the same household Fitzgerald injury, put and to Susan protect thereafter inflicts CYS Seth parent and the care of that her behavior not have on notice created a would and in- would be monitored to the court: her children According otherwise existed. injured on vestigated. again Seth placed fact that the child is with “The September 1995 when his mother tried court construed the plaintiffs allegations to suffocate him. CYS was scheduled to as against CYS defendants acts constitut- make day a home visit that but allowed ing willful which misconduct barred their Fitzgerald Susan to cancel the home visit immunity. claims of despite knowledge Stephen’s CYS’s every There is possibility jury that a death on 29. August authority CYS had to may employee determine that CYS behav- investigate monitor and to the mother’s willful, ior amounted to reckless or wanton children, care of her and it con- was CYS’ request misconduct. failed to CYS medi- duct and indifference this responsibility, Fitzgerald cal records of the children until dangerous created a known environ- Stephen after was murdered his moth- ment for leading up sustaining his In February er. of 1995 CYS received a permanent injuries at the hands of his physician child abuse referral from a after mother. fracture, Stephen suffered a forearm it but Next, I commonly note the act only cursory closed case file after known as the Political Tort Subdivision inadequate review. Over the next Act, 8541-8564, §§ Claims 42 Pa.C.S. months, three all three of Susan Fitzger- grants general immunity to employees children ald’s suffered serious and severe the local if agency acting an employee fractures, injuries, including concussions within scope duty of his or her causes head, and laceration to the closed head an injury or person property. to a injury contusions and re- abrasions § However, Pa.C.S. an individual hospitalizations. quiring reopened its employee protected liability is not again file and it June of closed judicially “acts that are determined to be a determining suspicions after sur- crime, fraud, actual actual or willful malice rounding injuries were children’s inval- § misconduct.” Pa.C.S. Under id and that it had no to proceed averred, the facts Ms. Runyon and CYS further despite overwhelming such evi- acted with disregard a willful of their of child dence abuse. to Seth safety duties and for the and welfare of continued, and his al- brothers but CYS dealing Seth when circum- with Seth’s Seth to lowed remain his mother stances. applied Ford court reckless, taking proper without reasonable or definition of disregard willful misconduct, Finally willful or wanton see Pa. child. CYS allowed 8836(d), §C.S. and it followed defini- the mother to cancel scheduled CYS’ home tion denying September when CYS’ visit on motion to dismiss less than two immunity. based on governmental Stephen’s The weeks after death.2 2. geous As for a cause of for the plaintiff whether action that the suffered a medi- intentional infliction of distress emotional cally injury. Appellees rely confirmed entertained, may Appellees' be I note that Armstrong v. Hospital, Paoli Memorial may conduct characterized as ex- be at best (1993) Pa.Super. (citing 633 A.2d outrageous Appellants treme and and that Inc., Park, Kazatsky King v. David Memorial have set viable forth a cause of action for (1987)), Pa. 527 A.2d 988 for the intentional infliction emotional distress. proposition Pennsylvania has not Appellants Hunger v. cite Grand Sani- Central adopted cause of of intentional tation, Pa.Super. A.2d infliction emotional distress as defined (1996), Superior where the Court set forth the Kazatsky the Restatement. the court held applicable determining standard a cause of prevail in order to on an intentional action for emotional intentional infliction of infliction emotional distress cause of action plaintiff prove distress. A must that the de- plaintiff provide competent must medical fendant’s conduct was extreme and outra- light most favorable When viewed LIMITED FAMILY averred, JENNISON if Appellants, facts as and Thomas trial, PARTNERSHIP support

proved at the conclusion Jennison, Appellants, ac A. plead have viable causes of Appellants grant tion and trial court erred in that the v. ing objections. This case preliminary attorneys judges not about whether or DISTRICT. MONTOUR SCHOOL may sympathy” be “moved natural Pennsylvania. Commonwealth Court identify ways compensate injured DeShaney. litigant. singular Rather the 6,May Argued issue the Court is fundamental before July Decided sufficiently have Appellants whether entitling them to recover averred facts permanent for the suf

damages in a dangerous

fered known envi decide, jury

ronment. It is for the factors,

among other facts whether

presented constitute state actors’ willful safety for

disregard Seth’s and constitute dangerous

known condition created Armstrong

state e.g. Squa actors. See Cir.1998) (whether (7th

drito, 152 F.3d 564

an actor’s conduct constitutes deliberate

indifference is the fact finder to deter

mine). The order of the trial court should reversed,

be and this case should be re

manded trial. joins

Judge FRIEDMAN in this

dissenting opinion. Appellants acknowledge that prove existence of emotional cause of action. evidence to adopted re- punitive damages distress. The court neither nor they erroneously pleaded (Second)

jected Section 46 of the Restatement According to a cause action. Brennan merely plaintiff’s but what the Torts stated Directory Telephone Corp., 850 National accepted. if should be Section were burden (E.D.Pa.1994), plaintiff as- if Hoy Angelone, 554 Pa. 720 A.2d See punitive damages separate in a cause serts (1998) (holding that the factor retalia- action, plaintiff granted leave should be recovering for inten- tion consideration punitive damages as an replead her claim in a sex- infliction of emotional distress tional damages. claim for appropriate substantive case). ual harassment Furthermore, agree punitive damages I separate are not a are a form of relief and

Case Details

Case Name: Robbins Ex Rel. Robbins v. Cumberland County Children & Youth Services

Court Name: Commonwealth Court of Pennsylvania

Date Published: Jul 18, 2002

Citation: 802 A.2d 1239

Court Abbreviation: Pa. Commw. Ct.