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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JULIE ELLEN WARTLUFT, et al.,
Plaintiffs
v.
THE MILTON HERSHEY SCHOOL,
et al.,
Defendants

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CIVIL ACTION NO. 1:16-CV-2145
(Chief Judge Conner)

MEMORANDUM
Plaintiffs filed the instant action against defendants the Milton Hershey
School and the Hershey Trust Company, as Trustee for the Milton Hershey School
Trust (collectively, “the School”), alleging federal and state claims in the wake of
the tragic suicide of their daughter, Abrielle Kira Bartels (“Abrielle”). In this
opinion, we will revisit our August 10, 2017 decision, which improvidently dismissed
several of plaintiffs’ tort claims pursuant to the gist of the action doctrine.
I.

Factual Background & Procedural History
Julie Ellen Wartluft (formerly Julie Ellen Bartels) and Frederick L. Bartels,

Jr. (collectively, “plaintiffs”) are the natural parents and administrators of the estate
of the decedent, Abrielle. (Doc. 29 ¶ 1). Prior to her death, Abrielle was a student
of the School, which is a private, nonprofit institution that offers cost-free education
to low income children from pre-kindergarten through twelfth grade. (Id. ¶¶ 2, 16).
The School also provides residential accommodations for students, housing them in
group homes with supervisory “houseparents.” (Id. ¶¶ 21-26). Abrielle enrolled in
the School in August 2004 at the age of five. (Id. ¶ 16). At the time of enrollment,

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Abrielle had “great social needs related to her family structure and home life,” as
her immediate family members suffered from severe mental health problems and
substance abuse. (Id. ¶¶ 59-60). Prior to Abrielle’s admission, plaintiffs executed
the School’s “Enrollment Agreement,” a three-page document setting forth terms
and conditions of enrollment including, inter alia, attendance, conduct and
discipline, student dating, school-provided health care, release of personal
information, visitation, textbooks, and religious services. (See Doc. 11-1 at 6-8).
Plaintiffs aver that Abrielle excelled and thrived during her nine years at the
School. (Doc. 29 ¶¶ 16, 18). They describe Abrielle as a “model student,” twice
being named middle school “Student of the Month” and consistently achieving
honor roll status. (Id. ¶¶ 17-18). She was also a member of the swim team and an
“anti-bullying” organization. (Id. ¶ 18). Abrielle’s likeness was even utilized by the
School in marketing materials. (Id. ¶ 28). According to plaintiffs, Abrielle planned
to graduate from the School, attend college, and then join the Federal Bureau of
Investigation. (Id. ¶ 18).
Abrielle began eighth grade at the School in August 2012. (Id. ¶ 69). That
year she allegedly was subjected to several incidents of bullying and experienced
other stressors, including her father’s likely incarceration for a second DUI offense
and another student falsely accusing her of making physical threats. (Id. ¶¶ 70-72).
In the face of these challenges, Abrielle’s emotional well-being began to deteriorate.
(Id. ¶ 70). In April 2013, as a result of the accusations of threatening behavior,
Abrielle was removed from her student home and committed to the School’s Health

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Center, an “on-campus hospital-type facility.” (Id. ¶¶ 73-74). After release from the
Health Center, Abrielle’s School psychologist, Benjamin Herr, M.D. (“Dr. Herr”),
learned that she had recently expressed a desire to kill herself—a claim that
Abrielle denied when questioned. (Id. ¶ 77). On May 1, 2013, Abrielle was again
admitted to the Health Center for overnight observation after she expressed selfharm ideations and disclosed past self-harm conduct to her houseparents. (Id. ¶ 78).
During her psychological examinations in the following weeks, Abrielle indicated
that family difficulties, including her father’s job loss, alcohol abuse, and potential
loss of visitation rights, were animating her depression and thoughts of self-harm.
(Id. ¶¶ 79-81, 83-84). Abrielle also expressed anxiety and discomfort regarding an
upcoming visit to her father’s residence in light of his alcohol problems and the
volatility of his relationship with his female companion, whom Abrielle referred to
as her “stepmother.” (Id. ¶¶ 80-82).
Throughout May 2013, Abrielle underwent multiple admissions to the Health
Center for suicidal ideations, depression, and anxiety. (Id. ¶¶ 83-88). She frequently
reported during treatment that family concerns and instability were the driving
forces behind her mental health issues and that she preferred to remain on campus
rather than return to her father’s home for holiday breaks. (Id.) On Dr. Herr’s
recommendation, Abrielle underwent inpatient treatment at an off-campus mental
and behavioral health care facility from May 28 to June 5, 2013. (Id. ¶¶ 88-89).
During inpatient therapy, Abrielle repeated the stressors of family mental health,

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discord, and substance abuse as the impetus for her self-harm and suicidal
ideations. (Id. ¶ 89).
Abrielle’s serious mental health problems continued when she returned to
the School, necessitating further treatment and admissions to the Health Center.
(Id. ¶¶ 91-92). On June 10, 2013, School physicians recommended that Abrielle
again be treated at an inpatient mental health facility as soon as possible. (Id. ¶ 93).
Abrielle was admitted to a different inpatient mental health care facility the
following day, beginning a nine-day course of psychotherapy. (Id. ¶ 96).
Plaintiffs allege that, despite knowing that Abrielle’s depression and suicidal
ideations were driven largely by her unstable family life, the School directed that
she be discharged from inpatient care back to her family home rather than to her
campus residence under the care of her houseparents. (Id. ¶ 101). According to
plaintiffs, the School was operating under an official or unofficial “shadow policy,”
which mandated that students be expelled after two mental health hospitalizations
in outside facilities, even if those hospitalizations were recommended by School
medical staff. (Id. ¶ 108). Dr. Herr purportedly explained this two-hospitalization
policy to Abrielle’s mother before and during Abrielle’s second inpatient
hospitalization. (Id. ¶ 114). Dr. Herr also informed Abrielle of the policy, causing
her to be “devastated” and “terrified of being thrown out” of school. (Id.) When a
psychologist at the inpatient mental health care facility learned of the policy, she
“expressed grave concern” to Dr. Herr about the effects of such a policy on Abrielle.
(Id. ¶ 115). On June 19, 2013, the day Abrielle was discharged from her second

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inpatient hospitalization back to her father’s home, Dr. Herr informed Abrielle that
there was a “significant likelihood” that she would be expelled. (Id. ¶¶ 118, 144).
Plaintiffs aver that, prior to Abrielle’s second inpatient discharge, the School
had performed an “enrollment review”—a closed-door, internal process by School
administrators that essentially was a precursor to expulsion. (Id. ¶¶ 124-28). On
June 20, 2013, the day before middle school graduation, the School informed
Abrielle that it was rescinding her invitations to the graduation ceremony and her
houseparents’ graduation barbeque. (Id. ¶ 130). The School further barred her
from returning to campus and from attending ninth grade. (Id.) School officials
allegedly told Abrielle’s mother that the School may consider allowing Abrielle to
return for tenth grade if she could satisfy certain conditions, which plaintiffs
maintain were nearly impossible to meet. 1 (Id.) Plaintiffs aver that Abrielle’s
houseparents and Dr. Herr disagreed with the School’s decision to prohibit Abrielle
from attending graduation. (Id. ¶ 132). Dr. Herr also opposed expulsion, outlining
in his records a lengthy list of reasons why Abrielle should be permitted to return to
the School. (Id. ¶ 134).
Tragically, ten days after she was discharged from her second off-campus
inpatient hospitalization to her father’s home, Abrielle took her own life. (Id. ¶¶ 139,
144). Plaintiffs allege that Abrielle’s suicide was preventable and was caused by her
compelled return to her father’s unstable home rather than to her campus

1

For example, one of the purported conditions was to “be free of all
depressive symptoms and express zero suicidal ideation for a period of 6 months” as
reported by Abrielle, her legal guardian, and her therapist. (Id. ¶ 136).
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residence, being barred from attending graduation and her houseparents’
celebration, and being prohibited from attending the School for at least the first
year of high school. (Id. ¶¶ 144-47).
Plaintiffs commenced this action in the United States District Court for the
Eastern District of Pennsylvania. The Eastern District transferred the matter to
this district pursuant to 28 U.S.C. § 1404(a). Plaintiffs filed an amended complaint
in October 2016, wherein they allege violation of the Fair Housing Act (“FHA”), 42
U.S.C. § 3601 et seq., (Count I), as well as state law tort claims for negligence (Count
III), wrongful death (Count V), damages pursuant to Pennsylvania’s Survival Act, 42
PA. CONS. STAT. ANN. § 8302 (Count VI), negligent misrepresentation (Count VII),
intentional misrepresentation (Count VIII), intentional infliction of emotional
distress (Count IX), negligent infliction of emotional distress (Count X), civil
conspiracy to endanger children (Count XI), breach of fiduciary duties of care and
good faith (Count XII), and negligence per se (Count XIII). 2
The School moved to dismiss Counts III, VII, VIII, IX, X, XI, and XII of the
amended complaint. In a memorandum opinion dated August 10, 2017, this court
granted the School’s motion to dismiss. Wartluft v. Milton Hershey Sch. & Sch. Tr.,
No. 1:16-CV-2145, 2017 WL 3433803, at *1, 4 (M.D. Pa. Aug. 10, 2017). We held that
the challenged state law tort claims were barred by the gist of the action doctrine
and that amendment would be futile. Id. at *2-3. Plaintiffs moved to amend the

2

Plaintiffs’ claims are not consecutively numbered; the amended complaint
skips both Counts II and IV. (See Doc. 29 ¶¶ 160-97).

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August 10, 2017 order to permit interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b), which the court denied. Motion practice in a companion case to the
instant matter recently compelled reconsideration of the court’s gist of the action
ruling therein. See Dobson v. Milton Hershey Sch., No. 1:16-CV-1958, Doc. 127
(M.D. Pa. Dec. 7, 2018) (Conner, C.J.). Upon review, we will vacate our prior ruling
on the motion to dismiss in this action as well.
II.

Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief can be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,
Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts
contained in the complaint, the court may also consider “exhibits attached to the
complaint, matters of public record, as well as undisputedly authentic documents”
attached to a defendant’s motion to dismiss if the plaintiff’s claims are based upon
these documents. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d
Cir. 1993)).

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Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts
a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31
(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a
plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a
claim must be separated; well-pleaded facts are accepted as true, while mere legal
conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual
allegations, it must determine whether they are sufficient to show a “plausible claim
for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550
U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
III.

Discussion
So long as a district court has jurisdiction over a case, it has “the inherent

power to reconsider prior interlocutory orders” when consonant with justice to do
so. State Nat’l Ins. Co. v. County of Camden, 824 F.3d 399, 406 & n.14 (3d Cir. 2016)
(citing United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973)). We find that this
case presents the rare situation where justice requires us to reconsider, sua sponte,

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our interlocutory Rule 12(b)(6) order. We first address our prior analysis regarding
the gist of the action doctrine. We then turn to the School’s arguments regarding
the sufficiency of several of plaintiffs’ tort claims, arguments we previously found
unnecessary to reach.
A.

Tort Claims and “Gist of the Action” Doctrine

In our August 10, 2017 decision, we found—in abbreviated fashion—that the
state law tort claims challenged by the School were barred by the gist of the action
doctrine. Upon review of a similar issue in a related case, we conclude that our
dismissal of these tort claims was improvidently rendered. We will therefore vacate
our prior opinion and reinstate plaintiffs’ dismissed tort claims in accordance with
our discussion infra.
1.

Gist of the Action Doctrine

Under the gist of the action doctrine, a contracting party cannot assert a tort
claim against another party to the contract when the gravamen of such a claim is, in
actuality, breach of contract. Bruno v. Erie Ins. Co., 106 A.3d 48, 68 (Pa. 2014). 3
When distinguishing between tort and breach of contract claims at the motion to
dismiss stage, the determinative factor is “the nature of the duty alleged to have
been breached” as pled by the plaintiff. Id. If the duty is created by the terms of
the parties’ agreement, then the claim sounds in breach of contract; if it derives

3

The parties agree that Pennsylvania law governs the instant state law

claims.
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from a defendant’s “broader social duty owed to all individuals,” the claim must be
regarded as a tort. Id. at 68-69.
It is true, as we previously observed, that the Pennsylvania Superior
Court has described the relationship between a student and a private school as
“contractual in nature.” McCabe v. Marywood Univ., 166 A.3d 1257, 1262 (Pa.
Super. Ct. 2017) (quoting Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. Ct.
1999)). But the Superior Court rendered that holding in the context of the viability
of a student’s breach of contract claim against a private school when the school
allegedly violates “guidelines, polices, and procedures as contained in the written
materials distributed to the student over the course of their enrollment in the
institution.” Id. That contractual association, however, does not exclusively define
the relationship between a private school and its students. A contract between a
student and a private institution may establish certain rights and obligations, but it
is axiomatic that there may be other legal duties owed by private institutions to their
students defined by different sources of law, including tort law. See, e.g., Feleccia
v. Lackawanna Coll., 156 A.3d 1200, 1216 (Pa. Super. Ct. 2017) (holding private
college owed tort-based duty of care to students participating in school-sponsored,
school-supervised athletic activities on college property); RESTATEMENT (SECOND)
TORTS §§ 342, 343A (AM. LAW INST. 1965).
The question then is whether plaintiffs’ negligence, emotional distress,
misrepresentation, civil conspiracy, and fiduciary duty claims implicate
contractually based obligations or “broader social dut[ies]” owed by the School to

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its students. We find the latter to be the case, and now hold that the gist of the
action doctrine does not bar the tort claims challenged by the School in its motion
to dismiss.
In Count III, plaintiffs assert a standard negligence claim against the School.
They allege the School exercised year-round custody, care, and control over
students and functioned as primary caregiver—providing education, housing, food,
clothing, and medical, dental, and psychological care. Plaintiffs aver that the
School, in this “in loco parentis” status, 4 owed Abrielle a duty of care, independent
of any contractual obligation, to protect her from harm. Plaintiffs assert that the
School breached this duty by, inter alia, recommending Abrielle undergo two
inpatient hospitalizations so it could expel her rather than continue providing
psychological care; permitting Abrielle to be discharged from inpatient care to her
parents instead of maintaining custody over her to provide further necessary
psychological treatment; failing to develop a care plan for her before she was
discharged to her parents; failing to provide adequate psychological care for her
prior to her discharge from the second inpatient facility; threatening expulsion or a
forced leave of absence simply because Abrielle was suffering from a mental
impairment; and rescinding Abrielle’s invitation to attend her graduation and
related festivities, exacerbating her depression. These allegations implicate social
duties which are broader in scope than applicable contractual obligations.

4

(See Doc. 29 ¶¶ 25-36, 184-87); see also Peters v. Costello, 891 A.2d 705, 710
(Pa. 2005) (defining “in loco parentis”); RESTATEMENT (SECOND) TORTS § 314A(4).

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Notwithstanding the existence of the Enrollment Agreement (and any other written
policies or guidelines), we conclude that the nature of the duty alleged in plaintiffs’
negligence claim is based on custodial care and protection of minor children and
exists independent of any contractual obligation. 5 The gist of the action doctrine
does not apply to such a claim.
The same is true for plaintiffs’ infliction of emotional distress claims in
Counts IX and X. Plaintiffs aver that the School negligently or intentionally caused
significant emotional distress and physical harm. The alleged conduct includes
ignoring Abrielle’s serious mental health issues and family-based causative factors,
consciously disregarding prior settlement agreements involving discrimination
against students with disabilities, threatening to expel Abrielle on the basis of her
mental impairments when she was most fragile, discharging Abrielle back to her
parents rather than allowing her to return to school to receive ongoing
psychological care in her preferred environment, and callously rescinding
invitations to Abrielle and her family to attend middle school graduation and
related festivities. We reject the School’s argument that these claims are grounded
in contract. Plaintiffs’ allegations may imply that the School violated the
Enrollment Agreement or some of its own anti-discrimination policies, but even if
this were true it would not transform plaintiffs’ emotional distress claims into

5

We note that even if some of plaintiffs’ allegations implicate portions of the
Enrollment Agreement regarding school-provided healthcare, (see Doc. 11-1 at 7,
¶ 8), and thus appear to assert a breach of that agreement, Pennsylvania law is clear
that negligent performance of a contractual duty still sounds in tort. Bruno, 106
A.3d at 69-70.
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breach of contract claims. Plaintiffs are alleging that the School inflicted severe
emotional distress—either negligently or intentionally—through its purportedly
egregious conduct toward Abrielle. The essence of these claims derives from tort
law and the broader social policies implicated thereby, not contract law.
Plaintiffs’ misrepresentation, civil conspiracy, and breach of fiduciary duty
claims are no different. The allegations underlying these claims involve purported
wrongdoing by the School outside of any “contractual” obligations that may have
existed under the Enrollment Agreement or any other written materials provided to
Abrielle or her family. For example, plaintiffs aver that School officials and
administrators knowingly conspired to endanger the welfare of its students by
implementing discriminatory and dangerous mental health policies despite the
foreseeable risks such conduct posed to students with disabilities. Plaintiffs also
contend that the School made numerous false representations to them regarding
the psychological care the School would provide Abrielle while in its custody,
inducing reliance on the School’s treatment and leading to Abrielle’s suicide.
Plaintiffs likewise allege that the School breached a fiduciary duty to Abrielle by
failing to hire and appoint qualified administrators and board members, failing to
implement appropriate institutional policies and controls to prevent discrimination,
and failing to comport with previous anti-discrimination settlements and policies.
The gravamen of these claims implicates a more fulsome social duty to all
individuals not falling within the ambit of any contractual duty that may exist

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between plaintiffs and the School. Consequently, the gist of the action doctrine
does not bar plaintiffs’ challenged tort claims.
2.

Sufficiency Challenges Under Rule 12(b)(6)

In its motion to dismiss, the School also challenged the sufficiency of
plaintiffs’ misrepresentation and intentional infliction of emotional distress claims.
We did not previously reach those challenges but will do so now.
a.

Misrepresentation

The elements for intentional misrepresentation are: (1) the defendant made a
material misrepresentation of fact; (2) the defendant knew the representation was
false or acted recklessly as to its falsity; (3) the defendant intended to mislead the
plaintiff into relying on the misrepresentation; (4) the plaintiff justifiably relied on
the misrepresentation; and (5) the resulting injury was proximately caused by the
plaintiff’s justifiable reliance. See Porreco v. Porreco, 811 A.2d 566, 570 (Pa. 2002)
(citing Bortz v. Noon, 729 A.2d 555, 560 (1999)). Negligent misrepresentation
consists of nearly identical elements, except the negligence version only requires
that the defendant “ought to have known” the representation was false. Bilt-Rite
Contractors, Inc. v. Architectural Studio, 866 A.2d 270, 277 (Pa. 2005) (quoting
Bortz, 729 A.2d at 561). The existence of a duty of care owed by one party to the
other is, logically, a precondition for a “negligent” misrepresentation claim. Id. at
277, 280.
The School contends that plaintiffs’ misrepresentation claims are insufficient
because they fail to allege facts showing justifiable reliance on a representation or

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that the School had the requisite intent of inducing action in response to its
representations. Assuming, arguendo, that the School’s multiple representations
regarding health care and nondiscrimination are material and plaintiffs reasonably
relied on those representations, the amended complaint is still deficient. Plaintiffs
aver that they “justifiably relied upon [the School’s] representations, which caused
[Abrielle] to succumb to suicide and to suffer the other damages described herein.”
(Doc. 29 ¶ 214). This type of conclusory pleading fails to state a claim for relief.
Plaintiffs do not explain how their reliance on the School’s misrepresentations
caused Abrielle’s suicide or other injuries. In other words, the amended complaint
fails to state how plaintiffs or Abrielle acted, or refrained from acting, in reliance on
the School’s representations such that Abrielle’s injuries were proximately caused
thereby. See Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87, 100-01 (Pa. Super.
Ct. 2007) (explaining that fraud—i.e., intentional misrepresentation—requires
inducing plaintiff to act or fail to act causing plaintiff detriment); Reliance, BLACK’S
LAW DICTIONARY (10th ed. 2014). We will therefore dismiss without prejudice
plaintiffs’ negligent and intentional misrepresentation claims.
b.

Intentional Infliction of Emotional Distress

A claim for intentional infliction of emotional distress requires proof that:
(1) the defendant’s conduct was extreme and outrageous; (2) the conduct caused the
plaintiff severe emotional distress; and (3) the defendant acted intending to cause
such distress or with knowledge that same was “substantially certain” to occur.
Brown v. Muhlenberg Township, 269 F.3d 205, 217-18 (3d Cir. 2001) (quoting

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RESTATEMENT (SECOND) OF TORTS § 46, cmt. d). 6 Whether conduct could reasonably
be regarded as extreme and outrageous is a threshold inquiry for the court’s
determination. M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d
412, 430 (M.D. Pa. 2014) (citing Reimer v. Tien, 514 A.2d 566, 569 (Pa. Super. Ct.
1986)). The Supreme Court of Pennsylvania has cited approvingly the Superior
Court’s requirement that “[t]he conduct must be so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized society.” Hoy
v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (alteration in original) (quoting Buczek
v. First Nat’l Bank of Mifflintown, 531 A.2d 1122, 1125 (Pa. Super. Ct. 1987)).
The School argues that plaintiffs’ intentional infliction of emotional distress
claims are insufficient because plaintiffs have not properly pled physical harm and
because the alleged conduct does not rise to the extreme degree necessary to state a
cause of action. Plaintiffs appear to assert intentional infliction of emotional
distress claims in a personal capacity as well as on behalf of Abrielle. (See Doc. 29
¶ 230). As to infliction of emotional distress on Abrielle, plaintiffs aver that due to
the School’s conduct, she suffered “physical manifestations of emotional distress,”
“conscious pain and suffering, “bodily harm,” and, ultimately, suicide. (Doc. 29

6

The Pennsylvania Supreme Court has not yet explicitly recognized the tort
of intentional infliction of emotional distress. See Taylor v. Albert Einstein Med.
Ctr., 754 A.2d 650, 652 (Pa. 2000). The Third Circuit has predicted that the state’s
high court will ultimately adopt the Restatement (Second) of Torts’ formulation.
Williams v. Guzzardi, 875 F.2d 46, 50-51 (3d Cir. 1989); see also Mills v. City of
Harrisburg, 589 F. Supp. 2d 544, 558 n.13 (M.D. Pa. 2008) (citing Taylor, 754 A.2d
at 652).
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¶¶ 139, 193, 226, 230). Allegations of suicide clearly satisfy the “physical harm”
requirement for an intentional infliction of emotional distress claim. 7
To the extent plaintiffs assert personal claims for emotional distress, they do
not plausibly allege that they experienced any physical harm. The sole injury
plaintiffs assert is “severe physical and emotional distress, including severe mental
anguish and horror[.]” (Id. ¶ 230). This averment, without more, does not suffice
under Pennsylvania law. In Abadie v. Riddle Memorial Hospital, 589 A.2d 1143,
1145 (Pa. Super. Ct. 1991), the Superior Court found that allegations of
psychological factors affecting a plaintiff’s “physical condition” and causing
“injuries” that would require future medical care were inadequate to plead physical
harm. Conversely, in Love v. Cramer, 606 A.2d 1175, 1179 (Pa. Super. Ct. 1992)—a
case cited by plaintiffs—the complainant alleged physical manifestations including
“nightmares, stress[,] and anxiety,” which the court found sufficient to state
physical injury. Plaintiffs’ allegations fail to establish that they suffered physical
harm. We will thus dismiss without prejudice plaintiffs’ individual claims for
intentional infliction of emotional distress.
As for the School’s second contention, we find that the conduct as pled rises
to the requisite “outrageous” level. Plaintiffs aver that the School threatened to
expel Abrielle due to her mental impairments and did, in fact, suspend her for at
least ninth grade the day after she was discharged from inpatient treatment for

7

Neither party discusses the viability of maintaining an intentional infliction
of emotional distress claim when a decedent is the individual who suffered the
emotional distress. Consequently, we do not reach this question.
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severe depression and suicidal ideation. This conduct allegedly occurred on the
heels of a settlement with the Department of Justice regarding the School’s
mistreatment of students with disabilities. The School also purportedly forced
Abrielle to be discharged back to her natural family, who had their own mental
health, legal, and substance abuse issues that were the driving factors in Abrielle’s
severe depression. According to plaintiffs, the School knowingly removed Abrielle
from her campus home of nine years and put her in the exact environment that was
causing her depression and suicidal tendencies. Plaintiffs further allege that the
School encouraged Abrielle to get inpatient mental health care while knowing that
such treatment would result in automatic expulsion or suspension under the twohospitalization policy. These allegations, taken together, are sufficiently extreme
and outrageous as to be considered “utterly intolerable in a civilized society.” Hoy,
720 A.2d at 754 (quoting Buczek, 531 A.2d at 1125). Accordingly, we will deny the
School’s motion to dismiss the intentional infliction of emotional distress claim filed
on Abrielle’s behalf.

18

 Case 1:16-cv-02145-JEJ-MCC Document 216 Filed 12/07/18 Page 19 of 19

IV.

Conclusion
Upon reconsideration, we will vacate our August 10, 2017 memorandum and

order. (Docs. 62, 63). We will reinstate plaintiffs’ challenged state law tort claims
with the exception of negligent and intentional misrepresentation (Counts VII and
VIII, respectively) and intentional infliction of emotional distress as to plaintiffs
(Count IX). These three claims will be dismissed without prejudice. In light of
today’s decision, we will dismiss the School’s motion (Doc. 119) for judgment on the
pleadings and motion (Doc. 158) for summary judgment without prejudice to the
right to reinstitute and supplement said motions at the request of the parties. An
appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

December 7, 2018