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I 405 CD 199 Hig er Crt 2.: **.......**......................**............**.....**...................... General Index Attorney Info ROBB1NS SETH FITZGERALD MINOR PLAINTIFF DRUBY RICHARD B ROBBINS ERIN PLAINTIFF DRUBY RICHARD B ROBBINS KER1~Y Pf,AINTIFF DRUBY RICHARD B CUMBERLAND COUNTY CHILDREN AND DEFENDANT MARCELLO DOUGLAS B YOUTH SERVICES C/O GARY I SHUEY MISLITSKY RICHARD P 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 CUMBERLAND COUNTY OF C/O NANCY A BESCH CHAIRMAN CUMB CO COMM - CUMB CO ~THSE CA~LrSLE PA 17013 SHUEY GARY I CUMB CO CHILDREN , YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 RUPP DIANNE CUMB CO CHILDREN , YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 RUNYON CHRISTINA CUMB CO CHILDREN , YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 HOVERTER WENDY B CUMB CO CHILDREN , YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 ORR DARLENE CUMB CO CHILDREN , YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 FITZGERALD SUSAN STATE CORRECTIONAL INST MUNCY POBOX 190 ROUTE 405 MUNCY PA 17756 Judgment Index ROBBINS SETH FITZGERALD MINOR ROBBINS ERIN ROBBINS KERRY DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT Y Amount Date 2/112/1999 2 1211999 2/12/1999 Dese JUDGMENT ON ORDER JUDGMENT ON ORDER JUDGMENT ON ORDER .............................................***.......*......*.**....***....*~ · Date Entries ........................................**................,-,.................. - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUEr ------------------------------_.~----------------------------------- SHERIFF'S RETURN FILED Litigant.: CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES SERVED : 9/03/97 WRIT OF SUMM Costs,...: $23,10 Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 ----------~-------------------------------------------------------- SHERIFF'S RETURN FILED 1-6- 7 9/29/1997 9/04/1997 8 9/04/1997 , " .. PYS510 1997-04669 orland County Civil CI1S0 HOI3BINt; SWI'Il f'['rZGEHAI.lJ E'I' pago Z Prothonotilr' Inquiry AI. (VII) CUMlI Cl' 1 Offico CO CIlILDHEN & YOU'l'1I SERV 8/28/199 1213 0/00/000 0/00/000 405 CD 19 9 Reference No..: . Case Type,....: WRIT OF SUMMONS JUdgment.1....: .00 Judge Ass gnedt OLER J WESLEY JR Disposed Desc, t ---------.,-- Case Comments ---- --------- Fi led.. . . . ... t 'rimo "1' . . . . I I Execut on Date Jury Trial.... Dis~osed Date. Hig or Crt 1. t Hig er Crt 2. t 9/04/1997 9/04/1997 9/04/1997 9/04/1997 9/25/1997 10/02/1997 41-44 10/06/1997 10/10/1997 10/15/1997 10/17/1997 10/17/1997 10/27/1997 107-117 2/26/1998 118 2/26/1998 119 2/26/l998 120-148 3/04/1998 Litigant,: CUMBE')RLAND COUNTY OF SERVED : 9/03 97 WRIT Ol" SUMM Costs.,.. t $8.00 Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 ------------------------------------------------------------------ SHERIFF'S RETURN FILED Litigant.: SHUEY GARY I SERVED : 9/03/97 WRIT OF SUMM Costs" ,.: $8.00 Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 --------------------------------------------------------------~--- SHERIFF'S RETURN FILED Litigant.: RUPP DIANNE SERVED : 9/03/97 WRIT OF SUMM Coats....: $8.00 Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 ------------------------------------------------------------------ SHERIFF'S RETURN FILED Litigant,: RUNYON CHRISTINA SERVED : 9/03/97 WRIT OF SUMM COsls...,: $8,00 Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 _______________________________________________R__________________ SHERIFF'S RETURN FILED Litigant,: HOVERTER WENDY B SERVED . 9/03/97 WRIT OF SUMM ~~~~~:::::_~~:~~-~~-~~:_~~:~~~~-~!~~~~~~~-~~~~~~-~~~-~~~~~~~~~~-- CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 ------------------------------------------------------------------ CCC&YS AND ITS' EMPLOYEE'S GARY SHUEY DARLENE ORR DIANNE RUPP WEND' HOVERTER AND CHRISTINA RUNYON (NOW ROWLAND) MOTION TO 8UASH SUBPOENA OF ERIN AND KERRY ROBBINS PLAINTI~FS ON BEHAL OF THEMSELVES AND S F ROBBINS A MINOR FOR PRODUCTION OF CONFIDENTIAL CCC&YS DOCUMENTS AND RECORDS ------------------------------------------------------------------ RULE TO SHOW CAUSE - DATED 10/2/97 - IN RE MOTION TC QUASH ISSUANCI OF A SUBPOENA FOR PRODUCTION OF CONFIDENTIAL CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES DOCUMENTS AND RECORDS - RULE IS ISSUED UPON PLAINTIFF RETURNABLE AT HEARING 10/30/97 1:30 PM CR 5 - BY WESLEY OLER JR J - COPIES MAILED 10/7/97 __________________M_______________________________________________. MOTION FOR PROTECTIVE ORDER UNDER PA RCP 4012CA) AND STAY OF SUBPOENA TO PRODUCT DOCUMENTS UNDER FA RCP 4013 ----------------------------------------------------~-------------. ORDER OF COURT - DATED 10/15/97 - IN RE MOTION FOR PROTECTIVE ORDER UNDER PA RCP 4012(Al AND STAY OF SUBPOENA TO PRODUCE DOCUMENTS UNDER PA RCP 40 3 - RULE IS ISSUED UPON PLAINTIFFS RETURNABLE AT HEARING 10/30/97 1:30 PM CR 5 - BY J WESLEY OLER JR , COPIES MAILED 10/15/97 -----------------------.------------------------------------------_. PRAECIPE FOR RULE TO FILE COMPLAINT BY RUBY D WEEKS ESO ------------------------------------------------------------------ RULE TO FILE COMPLAINT BY LAWRENCE E WELKER PROTHONOTARY -------------------------------------------.---------.-------------- PLAINTIFFS' RESPONSE TO PENNSYLVNAIA DEPARTMENT OF PUBLIC WELFARE'~ MOTION FOR PROTECTIVE ORDER AND STAY ------------------------------------------------------------------ PLAINTIFFS' RESPONSE TO CUMBERLAND COUNTY CHILDREN AND YOUTH AND ITS EMPLOYEES' MOTION TO QUASH SUBPOENA -------.------------.-------..--------------------------------------_. ORDER OF COl'RT - DATED 10/30/97 - BY J WESLEY OLER JR J - COPIES MAILED 12/3/97 -----------------------------------------------------------------_. MOTION TO COMPEL PLAINTIFF TO FILE A COMPLAINT -----------------------------------------------------------------_. CERTIFICATE OF SERVICE --------------------------------.----------------------------------. CERTIFICATE OF SERVICE -------------------------------.-----------------------------------. RULE UPON PLAINTIFF TO FILE A COMPLAINT - DATED 3/4/98 - IN RE I'Y:;~lU 1997-04669 Cllmborlano county l'rOLllollottlry'~ ULLlCtl CivIl Case InquIry ROflBINI> SE'l'lI F'X'I'ZGERALD ~;"l' AI, (vs) CUMll CO CHILDREN & YOUTH SERV Filed.. ......: 8/28/15 Time. . . . . . . . . : 12 : Execution Date O/OO/OC Jury Trial.. . . Dis~osed Date. O/OO/OC Hig er Crt 1.: 405 CD 15 Hiq er Crt 2.: MOTION TO COMPEL PLAINTIFF TO FILE A COMPLAINT - RULE IS ISSUED UPON PLAINTIFFS RETURNABLE WITHIN 30 DAYS OF THE DATE OF THIS ORr BY J WESLEY OLER JR J - COPIES MAILED 3/5/98 --------------.--------------------------------------------------- COMPLAINT - CAUSE OF ACTION UNDER 42 U.S"C.1983 - BY RICHARD B. ~~~~~~-~~g:_----------------------------------------------------- PRELIMINARY OBJECTIONS OF DEFENDANTS ------------------------..---------------------------------------- PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFENDANTS BY DOUGLAS B MARCELLO ESQ ----------------------------------------------------------------- PRAECIPE FOR WITHDRAWAL OF APPEARANCE FOR DEFENDANTS BY RUBY D WEEKS ESQ ----------------------------------------------------------------- PLAINTIFFS' RESONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS OF DEFENDANTS --------------------.--------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT BY RICHARD B DRUBY ESQ DEFENDANTS' PRELIMINARY OBJECTIONS ----------------------------------------------------------------- PRAECIPE FOR WRIT TO JOIN ADDI'L'IONAL DEFENDANT - SUSAN FITZGERALC BY DOUGLAS B MARCELLO ESQ _____________u___________________________________________________ ENTRY OF APPEARANCE FOR ALL DEFENDANTS BY RICHARD P MISLITSKY ESe ----------------------------------------------------------------- SHERIFF'S RETURN FILED Litiqant.: FITZGERALD SUSAN SERVED : 7/1/98 SCI AT MUNCY PA - LYCOMING COUNTY Costs.. ,.: $60.00 Pd By: THOMAS, THOMAS & HAFER 07/10/1998 ----------------------------------------------------------------- CERTIFICATE PREREQUISITE TO SERVICE OF A.SUBPOENA PURSUANT TO RUl 4009.22 ----------------------------------------------------------------- OPINION AND ORDER OF COURT - DATED 1/15/99 - IN RE DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT - PRELIMINARY OBJECTIONS ARE SUSTAINED AND PLAINTIFFS' COMPLAINT IS DISMISSED A TO DEFENDANTS - BY J WESLEY OLER JR J - COPIES MAILED 1/19/99 ------------_____.0_____------------------------------____________ ORDER - DATED 2/11/99" IN RE MOTION FOR DETERMINATION OF FINALI'I ' UNDER PA RAP 341(C) OR IN THE ALTERNATIVE MOTION TO CERTIFY INTERLOCUTORY ORDER FOR APPEAL - BY J WESLEY OLER JR J - NOTICE MAILED AND COPIES PERSONALLY GIVEN 2/11/99 -------------------------------------------------..--------------- PRAECIPE FOR ENTRY OF JUDGMEN'r AND JUDGMENT ENTERED NO NOTICE MAILED ----------------------------------------------------------------- NOTICE OF APPEAL TO COMMONWEALTH COURT FROM ORDERS ENTERED 1/15/9 AND 2/11/99 BY RICHARD B DRUBY ESQ ----------------------------------------------------------------- STATEMENT REGARDING RECORD OF PROCEEDING --------------_-----0---------------------------------____________ PROOF OF SERVICE ----------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING . 405 CD 1999 Refar.enc:e No.,,: . Case Type., ...: WRIT OF SUMMONS JUdgment.l. ..,,: .00 Judge As~ gned: OLER J WESLEY JR Disposed Desc" : ------------ Case Comments ------------- ,149-157 I '158-159 I ~160-161 I 4/02/1998 5/20/1998 5/22/1998 5/22/1998 6/01/1998 6/01/1998 6/01/1998 6/12/1998 7/10/1998 9/21/1998 186-208 1/15/1999 2/11/1999 2/12/1999 2/12/1999 2/12/1999 2/12/1999 2/18/1999 ". '" MISC. . . . . , ('ummunweallh uf I'ennbylyunlll ('UUtIlY llf Cumherlllnd I bb: I, OJR1'IS R. UHl , Prolhulllllary llf the Cuurl of ('umft1un Pkllb in IInd for ,"id County, du herehy cenify thai Ihe foreguing i, II full. trae IInd corrcct cUl'y uf lhe wlwk rccord Mlhc CII'C therein stilted, wherein SIi:W ~'12Gli:RAlll >r<mINS ...mIDi.RrnRItti & keny .mbb.ins.__ Plllintiff, IInd ~ otnJl & YOrI1l SF.RVT~ ClMlF.Rt.ANf) mN[Y ndendant _. as the same remuins of recllrd hdore the said Court at No. of q7-46~___ Term, A,I), 1'1__, In TESTIMONY WIIEREOF, I hllye hereunto set my hand IInd .Mixed the ,eal uf ,aid Coun <h'. ,"" ~:; t ' I, ~ F.,..ooFF1-~R Pre,ident .Judge or t e ~NlN.n-. Judicial District. composed of the- County of CumherlaruJ. do certify that _ __CURTIS R. LONG. , hy whom the annexed record, cerlil;eale and attestation were n1Hd~~ and givl.'n. and who. in his OWn proper handwriting. Ihereunto subscrihed his name and ulfixc:d the seal of till: Court or Common Pleu~ of said County. Was. at the lime of so doing. and now is Prolhonotary in and for said County of __---C.JJM.B.E.RLAND in the CommoO\\ocahh llf Pennsylvania. duly commissioned and qualified to "II of who~ie acts as such full faith and credit arc and ought to he ,given as well in Courts of judicat s where. and thut Ihe said record. certificate nnd attestation arc in due form of law und made offil'er. __A, I)" 19~, _ RLK I'f'lIh'llltll,ln Commonwealth of Pennsylvania Counly of Cumherland Pn''1I,h:lllludlll' J" I, - CURTIS R. ~_ONG . Prothonotary of the COUrI of Cnmmon Pleas in and for the ,aid Counly, do cerlify that the lIonorllhk GEQR!iE. E. HOFFER by whom the foregoing attestation was made. and who has thereunlo subscribed his name. was, at the time of making thereof. and ,till is Pre,ident.ludgeofthe COlJrlofCommon J'lells. Orphan' Coun and Court of Quarter Sessions of lhe Pellel' in and ror said County. duly Commissioned and qualified; to all whose acts as :iUch full faith and credit arc and ought to be givcn. a, well in Court.s or judicature as elsewhere. IN TESTIMONY WIIEREOF. I haye hereunto ,eLWy hllnd and afrIXed thc seal of ,aid ('OUrl thi, :.!:> .., I' FEB A I 99 uay 0 ___ ,J, 19_, "tlllhllnlllarv ~ -.... ...~.- ~ :- . BEFORE: nONoRABLE "IOSEI'II T, DOYU:. Prcsidcnt Judgel nONORABLE ,lAMES GARnNEI~ ('01.11'18, Judge nONOI~ABLE BERNARn L McGINLEY. Judge nONORABl.E DOlUS A. SJ\lITII-IUBNEI~. Judge nONOI~AIlLE DAN I'EJ.I,EGIUNI. Judgc nONOI~AIlLE IWCIIEI.LE S, ....UEDJ\1AN, Judge HONORAIlLE IWNi'iIE BIHGAi'iCE LEADBETTER, Judge OPINION BY JUDGE LEADBETTER FILED: July 18, 2002 Seth Fitzgerald Robbins, a minor child, and his adoptive parents, Erin and Kerry Robbins. appeal from the order of the Court of Common Pleas of Cumberland County, which sustained preliminary objections and dismissed their complaint against all parties other than Susan Fitzgerald, Seth's natural mother,2 The Robbins seek money damages under 42 U ,S.c. ~ 1983 and State constitutional and tort law theories, alleging that Cumberland County Children and Youth Services, Cumberland County and several individually named directors, administrators and caseworkers (collectively "CYS") failed to protect Seth from physical abuse inflicted by Susan Fitzgerald, The Robbins allege that CYS and several of its employees fai led to investigate properly allegations of child abuse in the Fitzgerald house and, had CYS acted with greater vigilance. the abuse suffered by Seth would have been prevented. As the scope of an appeal from an order sustaining preliminary objections necessarily raises only issues of law, our review I, I This case was assigned to thc opinion writer prior to the date whcn President Judge Doyle assumed the status of scnior judge on January I, 2002, ' 2 Susan Fitzgerald was joincd as an additional defcndant. Finding that immediate appeal would facilitate resolution of the entirc case, Common Picas cntercd this dismissal as a final ordcr pursuanl to PII, RAP, 341(c). ..~ 2 is plenary. Finding that common pleas did not err in applying the law, in spite of the harsh result, we must aflirm.) I This action arises out of the physical and psychological abuse suffered by Seth at the hands of Susan Fitzgerald. In 1995, Seth was three years old and lived with his mother and his two brothers in Silver Spring Township, Cumberland County, The first evidence of Fitzgerald's abusive behavior came to light on February 20, 1995, when Seth's older brother was taken to the emergency room with a complex fracture to his left forearm. Two days later, Seth's brother was admitted with a second forearm fracture, also inflicted by Fitzgerald, Based on two similar arm fractures, sustained just two days apart, the treating physician referred the case to CYS filr investigation of possible child abuse, CYS assigned the matter to caseworker Christina Runyon for further investigation. On March 13, 1995, Ms. Runyon, accompanied by an officer from the Silver Spring Police Department, visited the Fitzgerald home, After the visit, Ms. Runyon advised the officer that she did not suspect abuse in the home and that she was going to close the tile, No further criminal investigation was conducted at that time, On March 28, 1995, Stephen, Seth's younger brother, sustained a similar fracture to his left forearm. CYS reopened the tile and sent the x-rays of the fractures to an independent physician, Dr. Danielle Boal, M.D., who determined that the fractures were "unusual" and "remarkably similar" in kind and in l Following argument before a panel of this court, we enlcrcd an ordcr direcling this mallcr for reargumcnl bcfore the court ell h'lIIc and inviting lII/liCIIS curille participation on behalf of both parties. Wc have receivcd thc bcncfit of briefs as well as oral argument from the Support Ccnter for Child Advocalcs who participatcd on behalf of Ihe Robbins, while the Commonwealth's Office of Gencral Counsel along with thc County Commissioners Associalion of Pcnnsylvania submitted bricfs and IIrgucd in support of Cumberland County Children and Youth Serviccs, 3 , proximity and that the injuries raised suspicions of abuse. Dr, Boal recommended a complete skeletal survey in the event that further fractures were sustained" On June 2, 1995, Fitzgerald tirst injured Seth by fracturing his left arm and inflicting closed head injuries, multiple contusions and abrasions. Seth was taken to a different hospital and knowledge by CYS of this incidence of abuse is not alleged in the complaint. At some point prior to closing the tile, Ms, Runyon made a second visit to the Fitzgerald home. However, despite knowledge of at least three nearly identical arm fractures sustained by the Fitzgerald children and the advice of Dr, Boal. she closed the tile on June 19, 1995, noting again that the suspicions of abuse were invalid. CYS closed the file without investigating whether any further injuries were sustained by the Fitzgerald children and without obtaining any medical records for the boys. On August 29, 1995, Stephen suffered a fatal seizure when Fitzgerald suffocated him with a pillow, The county coroner immediately initiated an investigation and reported that the death was suspicious and, as a result, ordered an autopsy, On August 30, 1995, CYS received a report that Stephen had suffered seizures in the past and had sustained a prior arm fracture. Ms, Runyon visited the Fitzgerald home the next day, She then requested the medical records of the Fitzgerald children and scheduled an additional home visit for September 12, 1995, However, despite the strong indicia of abuse, Ms, Runyon allowed Fitzgerald to reschedule the home visit for two weeks later and allowed Seth and his older brother to remain in her care. On September 12, 1995, the date of the cancelled visit, Fitzgerald attempted to suffocate Seth by placing a pillow over his face, thereby inducing a severe seizure. The next day, a team of CYS professionals removed the two remaining children from the Fitzgerald home. 4 The team opined that Stcphen's death and the injuries suffered by the other two children could be the result of Munchausen Syndrome by Proxy.4 CYS continued to investigate the allcgations of abuse and concluded that Seth was very vulnerable to abuse du\! to his young age. After reviewing the medical evidence and speaking both to Seth and Fitzgerald, CYS concluded that the incidences of abuse involving Seth's tractured arm, laceration to the head and attempted suffocation werc founded, After the children werc removed from the home, CYS assumcd control over their placement and medical care as well as the terms and conditions of their visitation with Fitzgerald. Fitzgerald was permitted supervised visitation with Seth until her parental rights wcre terminated and Seth was adopted by the Robbins, On April 2, 1998, the Robbins tiled the underlying suit in the Court of Common Pleas of Cumberland County, alleging a cause of action under 42 U,S.C, ~ 1983 for due process violations pursuant to the Fourteenth Amendment, violations of the Pennsylvania Constitution and various State tort law claims, Specifically, the Robbins contend that as a result of ongoing abuse by Fitzgerald, which CYS permitted and facilitated, Scth suffered severe and pemmnent physical and mental injuries. On May 19, 1998, CYS filed preliminary objections in the nature of a demurrer. By order dated January 15, 1999, the trial court sustained the 4 This syndromc has hccn dcfined as: a fonll of child maltrcatmcnt or ahusc inOicted by a carctaker (usually the l1lothcr) with fllhriclltions of symptoms and/or induction of signs of disease" leading to unnccessary invcstigations and intervcntions, with occasional serious health consequences, including dcuth of thc child, Stedman's Medical Dictionary 1736 (26th ed, 1995), 5 preliminary objections and dismissed all claims against CYS. Rejel:ting the Sel:tion 1983 claim, the court held that the defendants had no duty to protect Seth from incidences of private violcncc. Furthcr, the defendants did not creatc the danger which resulted in his injuries, nor formed a special relationship with him that would serve to draw the defendants into a federal civil rights claim. The court further rejel:ted the claim for violations of the Pennsylvania Constitution under the same substantive due proccss analysis, Finally, with rcgard to the State tort law claims, the court held that Cumbcrland County, Cumberland County CYS and the individual CYS directors, administrators and caseworkers were protected by governmcntal immunity, This appeal followed. When reviewing a challenge to an order sustaining preliminary objections in the naturc of a demurrer, we must determine whether on the facts alleged the law states with certainty that no recovery is possible, AneW v, Arrowhead Lakes emty. Ass '11, file" 689 A,2d 357,359 (Pa. Cmwlth, 1997). We accept as true all well-pleacled allegations and material facts averred in the complaint, as well as inferences reasonably deducible therefrom, and resolve any doubt in favor of ovemlling the demurrer, ld. Preliminary objections calling for dismissal of a cause of action should be sustained only in cases that are clear and free from doubt. fd, FEDERAL CIVIL RIGHTS CLAIMS In Counts I through V of their complaint, the Robbins assert civil rights violations under 42 U,S,C. * 1983, alleging t.hat CYS is responsible for the harm inflicted upon Seth by Susan Fitzgerald in violation of his constitutional right 6 to substantive due process under the Fourteenth Amendment.~ Section 1983 provides a civil remedy for deprivations of federally protected rights caused by persons acting under color of State law. Allselma Statioll, Ltd. II. Pellllolli Assoc., llle, , 654 A.2d 608. 612 (Pa. Cmwlth, 1(95) (citing Parm/l II, Taylor, 451 U.S. 527. 535 (1981). rev'd Oil other groullds, Dalliels II, Williams, 474 U.S. 327 (1986)), In determining whether plaintiffs have stated a cause of action under Section 1983, the inquiry must focus on whether the two essential elements of the action are present: (I) whcther the conduct complained of was committed by a person acting undcr color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or the laws of the United States, ld, (quoting Parrell, 451 U.S. at 535). See also 42 U,S,c' * 1983, In general, the State has no constitutional obligation to protcct individuals from harm inflicted by private actors. The seminal case in this area is DeShalley II, Wi/llzebago COllllty Departmellt of Social Services, 489 U.S. 189 (1989), which also involved allegations that a county agency failed to protect a child from the abuse of a natural parent, CYS argues, and the trial court agreed, t!1at DeShalley is directly on point and should control. Thc Robbins contend that the trial court disregarded a well. established line of cases, decided after DeShalley, which support their causes of action. In DeShaney, the child and his mother brought an action in Wisconsin under Section 1983 against the county, the social services department and l The Fourteenth Amendment to the United States Constitution provides, III pertinent part. that "[nJo State shall, , , deprive any person of life. liberty, or property, without due process of law," U,S, Cons!. amend, XIV, ~ I. 7 \ , individual employees of the department. The plaintiffs alleged that the county had deprived the child of his liberty in violation of the Due Process Clause of the Fourteenth Amendment by fuiling to protcct him against a known risk of violence perpetrated by the natural father, The Supremc Court held that the Due Process Clause inlposes no affirmative duty on u State to protl:c.:t an individual against private acts of violence: [N]othing in the language of the Duc Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. Id, at 195, Thus, the Court concluded that. "[iJl'the Due Process Clause docs not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them." Id. at 196-97, [n DeShane)', the Supreme Court also rejected the plaintiffs' arguments that the county parties were accountable under the special relationship and state-created danger theories. The Court limited application of the special relationship theory to situations where the State takes a person into its custody and holds him there against his will. The Court reasoned that: [W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself: and at the same time fails to provide for his basic human needs, , , it transgresses the substantive limits on state action set by the [Federal Constitution's] Eighth Amendment and the [Fourteenth Amendment's] Due Process Clause. Id, at 200. 8 With regard to the state-created danger theory, the Court rejected the plaintiffs' argument that since the State had created the danger to the child, it was thereby liable. In so holding. the Court stated that: While the State may havc becn aware of the dangers that Joshua faced in the free world. it played no part in their creation, nor did it do anything to rcndcr him any more vulnerable to thcm, That the State oncc took temporary custody of Joshua does not alter the analysis, for when it returned him to his fathcr's custody, it placcd him in no worse position than that in which hc would have been had it not actcd at all; the Statc does not become the permanent guarantor of an individual's safety by having once offered him shelter, Under these circumstances, the State had no constitutional duty to protect Joshua. Id, at 20 (, Nonetheless, the Robbins contcnd that more recent cases in the courts of appeals provide a basis for holding CYS liable under the special relationship and state-created danger theories. We disagree. Even assuming that the lower federal courts have the authority to do so, none of the subsequent cases has undennined the clear limitations DeShaney placed upon these theories, and we find these limitations fatal to the Robbins' claims. 1. State-Created Danger Theory Liability can arise under Section 1983 for acts committed by private citizens where the State creates the danger or risk of hann that led to the plaintiffs injury. Klleipp j', Tedder, 95 FJd 1199, 1205-09 (3d Cir, 1996), In Klleipp. police officers stopped a pedestrian and her husband while they were walking home from a bar, The officers sent the husband home and left the woman to walk home alone despite cold weather and obvious inebriation, The woman sustained severe injures 9 whl:n sill: fcll uown UIl Cl11bulIl\lIwnllllld Mln~rcd hypllthcl'IlllUUlll1 pl:rl111ll1cnl brain damagl:, Allcr rcvicwing cuscs Iindin~ II ""lhlc c1uil11 undcr thc slale-created dunger thcory, pUl'llculurly ('rll'I/l'Iill,~ 1', 'li)\\,1I rlf'IIigllll/llcI I.rlke," 1ll1d Wood v, OS/I'll/Idel'.' thc cOllrt rcitcf'lllcd Ihe sllIlIdllllls upplkuhle to the dllctrille,~ and found: I, flBO F,2d 34fl (111h Cir, I')~II). 1'.,11 .!,'III.,.!, XX? 1',2,111)'13, 1"'1'/, .!I'/I;".! ,1'1I11.11011I.. Spea/'s v, CO/'/lL'/III,I, 49411,S, IOllh /. l')I)I)), lilt "11'I/1'//1/,1', ~tllle prlwlI omelllls illstiluted a work program which pel1l1lued IlInHltcs 10 work In pllhlk url'IIS with IIn'es~ to dllllgl'ruU~ weapons, The SllIle Ihen ussigned 1111 unll'lllned, UIIIII'IlII',I I'll! elllployee 10 work with 1111 inmale having II known history of vil1lent hclllwlol', The i1m\llle IIh.llIl'led Ihe el1lployec IIl1d held her hostllge, subjecling her 10 repellled physklllllnd Sl',\lIl1llhl'ellt~, We lIole thlll in 11'111'" \', 1.I'/lItlr'ks. 183 FJd 1253, 125M. 1259 (11Ih ('iI', 1')'1')), th,' I:Jcvl'lIlh 1'11'l'1I11 overrule,l COl'llt'//IIS liS inconsistent with Co/li/ls \', ('11.1' a(III//'A/'/' 11<'1,1111,,1, 50,\ I) .S, 115 (1')1)2). ~llItlng: lIn.1cr ('0/1//1", 1J01'cnlllll'lIl nt'fidllls vlollltc Ihc slIhstllntive due proces~ rlghls IlI'II pltSllllllllt inl'lIslody only hy conduct "that can IlI'llperly he l'IlIlfIIl'lerl/cdlls IIrhitl'lll'Y, or cOllscience shocking, in a con~tituliolllll sensc," ('11/111I,1', 51),\ l),S, lit 12M.., Like II fllvonle ulldc wh'l hilS p"ssell"w"y in lhe parlor. COl'/le/ius needs 10 hI' inlerred, We 110 so now, Recogni/,ing Ihlll it was delllt a futlll hlow hy Col/I/I.I, we prnI1111lnl'e ('OI'll<'i;IIS dClld IInd buried, The IIIII' 1111 suhslllntivl' due pl'OCCSS when II cilizen who is not in cusll1Ily dllims thlll II J,lllWl11111enllll unit. IIgency. or oflicial has 1'lIUIlCd her harm is supplied hy Ihe Co/li/lS dccisiol1. which oCl'upies Ihe Iield to the e.\I'lusion of IInything we slIid Ilbollt such clIses tll ('01'111.'1/11,1', 7879 F,2d 583 (l)th Cir I')~')), ,','n "..,,;e.!. 4')XlI,S, 1)38 (11)1)0), H In ""dl'l', the Third ('ircllill'ccol;(ni/cd four 1'11111 111 on c1cl11cnls for imposing liability under the slate-crellted dUrlllcr Iheory: (I) lhe hurlll IIllilllutc1y caused was foreseeable und fairly direct; (2) Ihe Stille Ul'lI.lr uclcd in \\'illful disrcgard for the safety of the pluintilT; (1) thcre exisled SOIllC rellllionship belweenthe State und the I1luinlllT; IlIud) (4) Ihe Stalc actors used lheir authority to crealI' UII opl1orlllnity that otherwise would not have existed for the Ihlrd pal'l~'s l'l'Il\le tllllccur, 1)5 F,ld 1I11211~ (qUilting M/lrA \' /loml,gh (!( IIa"IVm, 51 FJd 1137. 1152 (3d Cir. 1995), cert dL'lIie.!. 51I,IJ.5, H~H (1')1)5)). S,'" Id.lll C/lIII/1I1I I', Ciry of Pili/a delphia, 86 F, Supp 2d. 460 (E,D, Pa, 20(0), '!i(,.!. 2/)1 F3d 4')1) (.1d Cir, 2011l), em, dell;ed. 122 S. 0, 212 (2001) (discussing (Footnote continued on IICXtIJII\.tC...) 10 .__ _.....-_ M"._,_" .. The conduct of the police. in allowing Joseph to go home alone and in detaining Samantha, and then sending her home un escorted in a seriously intoxicated state in cold weather, made Samantha more vulnerable to harm, , , . A jury could tind that Samantha was in a worse position after the police intervcncd than she would have been if they had not done so. As a result of the affirmative acts of thc police officers, the danger or risk of injury to Samantha was greatly increased, Kneipp, 95 F.3d at 1209, Concluding that the elements of a due process violation under the state-created danger doctrine had been averred, the court reversed the grant of summary judgment and remanded the case for trial. In Wood. a woman who had been the passenger of a drunk driver was abducted and raped after thc oft1ccr who arrested her companion stranded her in a high-crime area five miles from her home at 2:30 a,m, The court concluded that, "Wood has raised a genuine factual dispute regarding whether Ostrander deprived her of a liberty interest protected by the Constitution by affirmatively placing her in danger and then abandoning her," Wood, 789 F,2d at 596, Similarly, in White v, Rochford, 592 F,2d 381 (7th Cir, 1979), a triable issue of fact under the Due Process Clause was found to have been raised by allegations of injury to three minor children, After arresting their uncle for drag racing on a cold night, police left the children alone in an automobile along the side of an eight-lane limited (continued... ) County of Sacrame/llo I', Lewis, 523 U,S. 833 (\ 988), which c1arificd the standard of fault nccessary to trigger liability undcr Scction 1983 in a state-creatcd danger claim), For purposes of this appeal. we do not address the first three elemcnts discusscd in Kncipp. as the fourth c1emcnt is dispositive, We note only, Iikc the Elevcnth Circuit in Whitc, and the District Court in Cannon. that the willful disregard standard encompassed in the sccond clement would IIppear to conflict with the "shocks the conscience" standard mandated by the Supreme Court in cases such as Collins and Lewis. II access highwuy, lIuth Ihl' llt'liCl'rS llIl the scene and the police department refused pleas of .he uncle IInd. IlIter the chiluren's mother. to take them to the police station or otherwise rescue thclI1 fromlhcir plight. As was noted in Pearsoll v, Miller, 988 F, Supp, H48. H~4 (M,I), Pa, PIl)7). "In each of these cases, the State's agent ultered Ihe pluintitrs siluutioll in such a way as to place him or her in the path of a peril he hud not lilcl'd bdllrl' State intervention and then did nothing to remove or climinutc till' risk Ihal he had created," NOI1l'thdcss, the Hobbins cite Klleipp to argue that by failing to take uction 10 rCll10vc the childrcn. CYS "used their authority to create an opportunity which llllll'rwisl' wlluld nol have existed for the specific harm to occur, Plailltiffs ''''1',[ 1/01 .1'11011' //11 1I//iI'lI/II(il'I'I/I'( lojirl/ilI (liis rel/llire//le/lf," Appellants' brief at 21 (el1lphusis udded), This assertion, however, is belied by the extended review of t'edel'lll l'usl'luw in I\I/l'ipp, which contrasts the cases of affirmative State action (where u cllllm WIIS rccllgnizeu) with the cases involving failure to act (where it wus not) und concludes that, "'[I]iability under the state created danger theory is preuiculed upon the Stutes' qllir//larive acts which work to plaintiffs' detriments in terms of exposure 10 danger, '" KI/eipp, 95 F,3d at 1207 (quoting D,R, v, Middle /Jul'ks Area "OCII(iOllal Tech, Scll" 972 F,2d 1364, 1374 (3d Cir, 1992), cert, delliI'd. 50(, l1,S, 1079 (1993)) (emphasis added), See also Estate of Burke v, Mahol/Y Ci~\" 40 F, Supp 2d, 274, 280-81 (E,O, Pa, 1999), aff'd, 213 F,3d 628 (3d eir, 2(00), Wbile the Third Circuit has subsequently raised some question about this distinction in Mo/'se v, Lo\\'e/' Merioll School Districl, 132 FJd 902, 914 (3d ('ir. 1997) (noting that "the line between an affirmative act and an omission is difficult to draw"). we are persuaded that the approach taken by the Kneipp court, which is consistent with the holdings of the other federal circuits. is both sound and 12 faithful to the holding of DeShane,\', As the trial courtl1oted in the case sllh jlldice, the Supreme Court "expressly held that the State could not be considered to have created the danger to the minor plaintiff under circumstances even more compelling (DeShaney] than those of the present case (Robbins]." Robbins v. Climber/and COIl/II)' Chi/dren alld Yowh Se/'l's, , No. 97-4669 (c.c.r. Cumberland County, tiled January 15, 1999), slip op. at 14, (hereinafter Trial Court Opinion), Accordingly, we conclude that the Robbins have failed to allege a constitutional violation based upon the state-created danger theory. 2. Special Relationship Theory The special relationship theory provides that liability can arise under Section 1983 for acts committcd by private citizens only if the State entered into a special relationship with the plaintiff under which it assumed a duty to ensure the plaintiffs continued well-bcing, The Robbins allege that by accepting the referral of abuse, CYS accepted a duty to protect Seth from harm and entered into a special relationship with him and, despite that relationship, CYS acted with rleliberate indifference and in reckless disregard of the high degree of foreseeable danger to Seth, However, as the Third Circuit noted in Kneipp, the relationship required under the special relationship theory "has a custodial element to it .. the State must affirmatively act to restrain an individual's freedom to act on his or her own behalf either through incarceration, institutionalization, or some other comparable limit of personal liberty, " 95 F,3d at 1209 n.22, See also Collins v, City of Harker Heights, 503 U,S, 115, 127-28 (1992) and Pearson. 988 F, Supp. at 855, This interpretation, like that regarding the state-created danger theory, is faithful to the concept set forth in DeShane)', that "(t]he affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help 13 him, but from the limitation which it has imposed on his freedom to ar.t on his own behalf," 489 l),S. at 200, Thuf. because the complaint I:'lils to allege uny restraint by the State on Seth's personal liberty prior to his removal from the Fitzgerald home, the Robbins have failed to state a cause of action under the special relationship theory fl.)r the injuries which occurred while he remained in his mother's care. However. the Robbins also assert a claim for violations of Seth's constitutional rights arising from conduct which occurred after Seth was taken into CYS custody. The Third Circuit has held. and we agree, that when the State places a child in foster care, the State enters into a special relationship with the child triggering affirmative duties on the part of the State, Nidlli \I, Morra, 212 F.3d 798 (3d Cir, 2000) (en banc), Therefore, when CYS entered into a special relationship with Seth by placing him into foster care, a conesponding constitutional duty was imposed upon CYS to provide for his basic human needs, such as food, shelter, medical care and reasonable safety, See DeShal/ey, 489 U,S. at 200, The standard by which we determine whether this duty has been breached is whether CYS acted with such deliberate indifference to Seth's danger as to shock the conscience, Nicil/i, 212 F,3d at 810, However, the Robbins fail to assert facts which demonstrate how CYS breached this duty of care, The Robbins complain only that CYS allowed Seth supervised visitation with his mother during this period, They do not allege that Seth was further abused, or was in any danger of further abuse, only that contact with his mother caused additional psychological harm. Even assuming, arguendo, that a custodial relationship imposes a constitutional duty to attend to psychological health as a basic human need like food and medical care, we find this allegation inadequate to state a violation of Seth's constitutional rights, 14 Having taken custody of Seth, CYS was faced with a 1I0bson's choice between cutting off. precipitously. all contact between a three-year-old child and the mother with whom he had lived since birth (und as to whom parental rights had not yet been temlinated):1 or allowing some continuing visitation in the physical presence und supervi.sion of CYS ofl1cials. Whatever a psychologist might opine in hindsight. there are no facts alleged that even suggest that CYS knew, or even should have known,lo that one option poscd a grcater psychological risk of harm than the other. We do not believe thatthc selection of cither option can amount to deliberate indifference to Seth's safcty and wcll being, absent some additional circumstanccs not alleged herc, 3. Failure to Train A claim of liability under Scction 1983 is also grounded upon the theory that CYS failcd to properly train and supcrvise caseworkers, specifically Ms. Runyon. A municipality's failure to train cmployees can scrve as the basis for Section 1983 liability where the failure to train is the "moving force" behind a constitutional violation, See City afCalltoll v, Harris, 489lJ.S, 378, 388-89 (1989), In light of our disposition of the underlying claims based upon the caseworkers' failure to protect Seth from his mother, we must conclude that preliminary 9 In this rcgard it must bc noted that thc Suprcmc Court has rccognizcd a "fundamental liberty intcrest of natural parents in the care. custody IInd managemcnt of their child," Miller v, Philadelphia, 174 F,3d 368 (3d (iI', 1999) (citing Sa/l/o.I'k)' \', Kl'IllI/er. 455 U,S, 745, 753 (1982)), This tcnsion bctwccn the rights of Fitzgcruld IInd Scth furthcr compounds thc dilemma faccd by CYS, and cuutions rcstraint in finding a constitutional violalion in CYS' ill. fated attcmptto balance thcsc rights, 10 As in NiCill;, wc nccd not hcre dccide whcthcr the delibcralc indiffercnce tcst is to be measured by the risks known to CYS or the risks of whieh thcy should have bccn IIware. However. we notc that in a prison condition casc, thc Suprcmc Court IIpplicd thc actual knowlcdge standard, See Former \" ErellI/O/!, 511 U,S, 825,837 (1994), 15 objections were properly sustuined to this claim as wcll. To recover undcr Scction 198J based upon a failure to truin the municipal actors who cuused the pluintiffs hann. a pluinti ff must eSllIblish both thut "I) the failure to truin amounted to a deliberate indilTerence to the rights of persons with whom the police comc in contact; and 2) the municipality's policy actually caused a constitutional injury," Carroll II, Borough of State Call" 854 F, Supp, 1184, 1195 (M.D, Pa, 1994), aff'd, 47 FJd 1160 (3d Cir, 1995), While most failure to train caseworkers have dealt with questions regarding the deliberate indifference element, the existence of a constitutional deprivation is a fundamental threshold requirement of any Section 1983 claim, As the Supreme Court noted in City of Los Angeles II, Heller, 475 U.S. 796, 799 (1986): [N]cither Monell \" New York City Dept. of Social Services, 436 U,S, 658, 98 S, Ct. 2018, 56 L.Ed,2d 611 (1978), nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its ofliccrs when in fact the jury has concluded that the officer inflicted no constitutional harm, If a person has suffereclno constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have a/llhorized the use of constitutionally excessive force is quite beside the point. (emphasis in original), Thus, the constitutionality of a municipal policy is irrelevant in the absence of a constitutional injury causally related to that policy. See Simmons II. Philadelphia, 947 F,2d 1042, 1063 (3d Cir, 1991). Accordingly, since there was no breach of any constitutional duty owed to Seth by any State actor, no Section 1983 claim could be sustained even if the Robbins were able to uncover some municipal policy which might be characterized as deliberate indifference. 16 To the extent that the Third Circuit in Fageln 1'. CiIY of Vil/e/al/d. 22 F.3d 1283 (3d Cir. 1994) has held to the contrary," we reject this construction of Section 1983 as inconsistent with pronouncements of the Supreme Court, particularly Heller.12 Ruther, we accept the reasoning of the vast majority of federal circuits. which adopt the general rule that a municipality cannot be liable unless there is a constitutional violation by the municipal actor causing the plaintiffs hann. See, e,g" Trigalel v, Cily of Tulsa, 239 F.3d 1150, 1154.56 (\ Oth Cir, 2001), eert. dellied, 510 U.S, 932 (1995); ScOIl v, Clay COlII/ty, 205 F.3d 867, 879 (6th Cir.), eerl. del/ied, 531 U.S. 874 (2000); Eval/s v. Avel:v, 100 F,3d 1033, 1039.40 (1st Cir 19%), om, del/ied, 520 lJ.S, 1210 (1997); Thompsol/ v. Boggs, 33 F.3d 847, 859 n,ll (7th Cir. 1(94), ('el'l. dellied, 514 l),S. 1063 (\995). Moreover, even under the Fagal/ analysis, there still must be constitutional injury, See Estate of BUl'ke v, Mahoney Cily, 40 F, Supp 2d, at 285.87, Since the rejection of the Robbins' primary causes of action against the individual actors is based upon the principle that the State has I/O eOl/slitutiol/al dillY to protect citizens from the acts of other private citizens, even under Fagall there could be no direct claim against the municipal defendants for failure to train and supervise caseworkers to detect and prevent private abuse. 4. Child Protective Services Law The Robbins' final theory of liability under Section 1983 asserts that CYS violated the Child Protective Services Law, 23 Pa. C.S, ** 6301.6385, by failing to obtain necessary medical evidence and failing to properly investigate claims of II We note that in Mark v, Borough of JIa/horo, 51 F,3d 1137, 1153 n. 13 (3d Cir, 1995), a panel of the Third Circuit questioned the extent of the holding in Fagan. We do not here attempt to explore this qucstion. 12 See a/so Collins, 503 U,S. at 124, 17 abuse, Mere violation of State law does not give rise to a constitutional claim. Liability under Section 1983 can be predicated only upon violation of federal statutory or constitutional rights. See Klleipp, 95 FJd at 1210, Nonetheless, State law may create a right in property or liberty, which interest is then protected by the Due Process Clause. In tum, a deprivation of due process by the State can form the predicate of a Section 1983 claim. However, as the Supreme Court pointed out in Collills, even where State law imposes a duty not otherwise imposed by the federal constitution and that duty creates a "liberty interest" protected by the Due Process Clause, breach of that duty docs not rise to the level of a Section 1983 violation unless the State action is itself arbitrary and capricious in the constitutional sense, 503 U,S. at 129-30. As in Collills, none of the facts pled here would support such a claim. PENNSYLV ANIA CONSTITUTIONAL CLAIMS The Robbins also assert a direct cause of action under the Pennsylvania Constitution, alleging that CYS deprived Seth of his right to liberty and to be free from physical harm guaranteed by Article I, Section \,IJ Neither party has briefed the diflicult issue of whether there exists a direct right of action for money damages against govemment officials for violations of the Pennsylvania Constitution, and our research has not uncovered any case where such a cause of 13 Article J, Section 1 o(the Pennsylvania Conslitulion provides: All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursing their own happiness, Pa, Cons\. art, I, 9 I, " i' 18 action was recognized,l~ Nevertheless, even if a direct cause of action may be maintained. our analysis of the Federal Due Process clause resolves the State constitutional claims under Article t. Section I, The Pennsylvania Supreme Court has held that "the requirements of Article I, Section I of the Pennsylvania Constitution are not distinguishable from those of the [Due Process Clause of the] 14th Amendment, , , [thus] we may apply the same analysis to both claims," Pel/l'~Tlvallia Gallle COIlf/II'1I \" Marich. 542 Pa, 226, 229 n.6, 666 A.2d 253, 255 n,6 (\995) (citing R. v, Departlllellt of Puhlic lVe((are, 535 Pa. 440, 4()\-62, 636 A,2d 142, 152-53 (1993 )), Accordingly, wc agrce with the trial court that the Kobbins' have failed to state a claim under the Pennsylvania Constitution, 15 STATE TORT CI.AIMS ANIl PUNITIVE DAMAGES We likewise conclude that the trial courl properly dismissed the State tort law claims, The Robbins assert a cause of action in negligence as well as claims under Sections 324 and 46 of the Restatement (Second) of Torts for intentional infliction of emotional distress and, in a separate count, they seek punitive damages. Specifically, the Robbins contend that CYS acted with gross negligence and in willful disregard for, and in deliberate indifference to, Seth's safety, While the Robbins concede that CYS in its capacity as a local agency 14 But see Harley v, Schuylkill COlmty, 476 F, Supp, 191, 195.96 (E.D. Pa, 1979) (citing Erdman v. Mitchell. 207 Pa. 79,56 A, 327 (1903)). IS Assuming, arguendo, that II direct clluse of action would be cognizahle under the State constitution, immunity under 42 PII, C.S. ~S 8541-8546, would serve to bill' any State constitutional claims asserted againE! CYS, See Section 8542(b) (granting immunity for claims for monetary damages except with respect to eight speci tic types of conduct, none of which is appli.:able here), See also Sameric Corp, v. Cify of Phihuldphia, 142 FJd 582, 600 (3d Cir, 1998). See also Al'gesra v, Goode, 797 F,SuPP, 399,409 (E,D, Pa, 1992), 19 would be immune from liability, they contend thut the conduct of thc individual employees constituted willful misconduct serving to vitiat~~ their immunity. Under 42 fla. C.S. ~~ 8541.8542, coml11only refcrred to as the "Politicul Subdivision Tort Claims Act," local agcncies are immune from liability for injuries caused by an act of the agency, its employees or any other person. See Section 8541.'(' Scction 8545 grants thc same immunity to an cmployee of the local agency acting within the scope of his official duties.17 This immunity is abrogated, with respect to individuals only, for conduct constituting a crime, actual fraud, actual malice or willful misconduct. Diaz v, /louck, 632 A.2d 1081, 1085 (Pa, Cmwlth. 1993), See also 42 flu. C.S, * 8550, In King v. Breach, 540 A.2d 976, 981 (Pu, Cmwlth, 1988), we notcd the type of bchavior which constitutes willful misconduct: Willful misconduct, for the purposes oftortluw, has been defined by our Supreme Court to mean conduct whereby the actor desired to bring ubout the result that followed or at least was aware that it was substantially certain to follow, so that such desire can be implied. Evans v. 16 That section is as follows: * 8541. Govcrnmental immunity gcnerally Except as otherwise provided in this subchapter, no local IIgency shall bc liable for any damages on account of any injury to a person or property caused by any act of thc local agency or an employee thercof or any othcr pcrson, 42 Pa. C.S, * 8541, 17 That section is as follows: Scction 8545. Officiallillbility gcnerally An employee of a local IIgency is liable for civil damages on IIccoljnt of any injury to a person or propCrly caused by acts of the employce which are within the scope of his oflice or dutics only to the samc extent as his cmploying local agency and subject to the limitations imposed by Ihis subchaptcr. 42 Pa, C.S. * 8545. 20 Philadelphia TrallSf/orlali!m ('o/llpall)'. 418 Pa. 5()7, 212 A.2d 440 (1965), In other words, the term "willful misconduct" is synonymous with the term "intentional tort." Set! W. Prosser. Halldhook of TIlt! Lall' of Torts, 31 (4th cd. 1971). To prove willful misconduct. a plaintiff must cstablish that the actor desired to bring about the result that fi.lllowed. or at least it was substantially certain to follow, i.e., specific intenl. Dia:!, 632 A.2d at 1085, We conclude here that the allegations do not state a claim that any of the individual appellees acted with the requisite specilic intent to injure Seth, As the trial court noted: [A] fair reading "f the factual allegations regarding the Defendants' conduct, and the reasonable inferences to be drawn therefrom, if believed, do not support a conclusion that any of the individual defcndants acted with malignant feelings or a wicked disregard of the interests of the minor plaintiff. Nor do they support a conclusion that any such dctendant acted with an intent that the minor plaintiff be injured, or with an awareness that his injuries were substantially certain to occur. At most, the complaint presents a series of events in which an error of judgment by a defendant in failing to recognize an unusual personality disorder in the minor plaintiffs mother resulted in the most tragic of consequences, Trial Court Opinion at \9. Finally, we note our agreement with the trial court that punitive damages arc a foml of relief, not a separate cause of action under Pennsylvania law, See Murray v. Gel/corp, II/C., 979 f, Supp, 1045 (E,D, Pa, 1997),18 IN Having detennined on the faels as averrcd that CYS is nOlliable for the hann suffered by Seth. it is unnecessary to grant the Robbins an oppo'1unily to re-plead punitive damages as a prllyer for relief in the substanllve counts of the complaint. Further. punitive damages may not be assessed against a municipality or against individual defendants sued in their official capacities, Arges/(/, 797 F, Supp, a1410, 2\ BEFORE: HONORABLE JOSEPH T, DOYLE, Pr~sid~nt Judg~ HONORABl.E JAMES <iARDNER ('OLlNS, Judg~ HONORABLE J,IERNAlm L. !\1,CilNLEY, Judge HONORABLE DORIS A, SMITII-RlIINER, Judge IIONORAIlLE DAN PEL.lHiRINI, JlIdg~ HONORAIH.E ROCIII:LLE S. FRIEDMAN, Judge HONORAlH.E BONNJI~ IWltiANCF I ,EADBETTER, Judge DISSENTING OPINION BY JUDGE SMITH-RlBNER FILED: July 18, 2002 I dissent from the majority's d~cision to affirm the ord~r of the Court of Common Pleas of CUl11lx~rland County, The trial court sllstained Appellees' preliminary ohjeetions and dismissed Appellants' nine-count complaint raising claims of civil rights violations, a failure to protect Appellant Seth Fitzgerald Robbins, a minor, and an inllietion of emotional distress in connection with permanent injuries eall~ed by the minor child's biological mother. I also disagree with the majority that this case must be strictly construed under the rubric of DeShaney v. Winllebago CoulIIY Department of Social Services, 489 U,S. 189 (1989), among other cases, and that Appellants do not have viable state-related causes of action against Appellees. The majority has denied Appellants their right to have the facts of their case determined by a reasonable jury, not by this Court. In DeShaney the United States Supreme Court held that the state had no constitutional duty to protect a child from his father after the state had received reports of the father's abuse. The court denied the child's civil action under 42 U .S.c. 91983 against social workers and local officials who received complaints that the child was abused but failed to take any action to remove the child, I The IThc pctitioner's Scction 1'J~3 causc of action allegcu that the rcspo;ldcnts deprived the child of his substantivc rightti undcr thc Duc Process ClaUiiC of the Fourtcenth Amcndmcnt by failing to protcct him against his fathcr's abusc, Although custody was initilllly withheld, the (Footnote continued on next page...) DAS-R - 2 court reasoned that the Due Process Clause of the Fourteenth Amcndment imposes no aftirmutive obligation on the state to protectlile, liberty or propl~rty of a citizen ugainst invusion by a private actor, Moreover, while the statc may have been aware thut the child was in danger no special relationship existed betwecn thc child and thc state, which played no role in creating thc danger thatthc child faccd nor di.u anything to render thc child morc vulnerable to the danger. Appellants requcst this Court to reject a strict reliance upon DeSllaney and to apply exceptions to the general rule that the Due Process Clause provides no basis for a Section 19R3 causc of action. Those exceptions provide that a duty to protcct may arise out of certain special relationships between the state and the injured child or when a statc-created danger or risk of harm exists whieh causes injury to the plaintiff. Klleipp v, Tedder, 95 F,3d 1199, 1208 (3d Cir, 1996), Unlike the majority, I am convinced that the state-created danger theory should be applied to Appellants' case, which imposes liability under Section 1983 for acts committed by a private citizen when the danger or risk of harm causing the plaintiffs injury was created by the state, The Klleipp court agreed that DeSllaney left open the possibility that a constitutional violation may occur despite the absence of a special relationship, The court enunciated a four-part state-created danger test that a plaintiff must meet to prevail: (continued...) court rclumed the child to his father after two doctors, a police detective, social service cascworkers, hospital pcrsonncl and the county attorney jointly dctermincd that becausc insufficicnt evidcnce of child abuse existcd, the child could no longcr remain in the court's custody, particularly where in this instance thc fathcr dcnicd any abusc. DAS-R - 3 (I) the harm ultimately caused was foreseeable and ((Iirly direct; (2) the state actlll' acted in willful disregard for the sufety of the plaintiff: (3) there existed some relationship between the slllte and the plaintiff: (4) the state actors used their authority to create an oppol'lunity that otherwise would not have existed for the third party's erime to m:cur. I f properly analyzed under the KlleiJiJi test the facts as averred demonstrate, first. that the reasoning in D,,5//(/I/(.')' for denying relicI' docs not apply. The Supreme Court decided the case strictly on a special relationship test, which I agree docs not apply hcre, and at no time did the court foreclose rclief under the slllte-created danger theory when appropriatc factual circumstances exist. It did not rule that a special relationship is a prerequisite to state liability in all cases of injury due to private violence, Second, if believed by a jury, the facts as averred demonstrate that the harm suffered by Seth was foreseeable and direct, that state actors acted in a willful disregard for the child's safety, that some relationship existed between the state and the child and that state actors used their authority to create an opportunity for Seth's mother to abuse him. That opportunity otherwise would not have existed but for the state actors' conduct. An analogous situation was presented in Ford v. JOhIlSOI/, 899 F, Supp, 227 (W,D. Pa, 1995), ail'd, 116 F,3d 467 (3d Cir. 1997). The District Court for the Western District of Pennsylvania denied the CYS defendants' motion to dismiss a civil action filed by a biological mother arising out of the death of her two-year-old child, Shawntee Ford. The child was beaten to death by her father after he was granted custody by the family court in Allegheny County. The district court held that where CYS takes affirmative action to remove a child from a parent and then returns the child to the same household and the parent thereafter inflicts injury, CYS has created a danger that would not have otherwise existed, DAS-R - 4 According tll the court: "The f[ICt thllt the child is placcd with II parcntlls opposcd to a foster parcnt should not change the slU11l1ards by which social lIgcncics und their cmployces conduct their invcstigutilllls," Forcl, ~99 F, Supp. ut 233. The complaint avcrred that CYS failcd to invcstigate the fathcr's cirCUl11sltlllccs and to report known information. which would have disqualified him from regaining custody of the child. The district court in Ford adopted thc state-created danger theory, which permitted the plaintiff to provc liability against the CYS defendants if she could establish that statl~ actors created a dangerous environment, knew that it was dangcrous and used their authority to crcate an opportunity otherwise unavailable for a third party to commit a crimc. Evidcnce must exist to show thc defcndants' indifferencc to thc child's conditions. [d. The reasoning and holding in Ford are particularly persuasive here whcrc Seth clcarly was under CYS' authority and supervision by virtue of the agency's opcn casc files on the family and the affirmative duty on CYS to monitor, supervise and investigate what went on in the child's home after it acquired information about the series of abuses perpetrated against Seth and his brothers, their hospitalizations and the death of Seth's oldest brother Stephen, See a/so Currier v. Doran, 242 F.3d 905 (101" Cir, 2001) (citing Ford, among other cases, the court applied the state-created danger theory and held that state officials may be liable for injuries caused by private actors when the officials create danger that lead to harm). CYS only made three scheduled visits to the Fitzgerald home before Susan Fitzgerald was ultimately arrested for murdering Stephen, Once CYS intervened in March of 1995, it assumed an affirmative duty to protect Seth and to put Susan Fitzgerald on notice that her behavior and the carc of her children would DAS-R . 5 be monitored und investigated. Seth was ngllin injured on September 12, 1995 when his mother tried to suflbeute him. CYS wus scheduled to muke tl home visit that duy but ullowed SUSUll Fitzgerald to cUllcd the home visit despite Cysts knowledge of Stephen's demh on August 29. CYS hud uuthority to monitor und to in\(estigute thc mother's cure of her children, und it was CYS' conduct and indiffcrcllce to this responsibility, which created a known dangerous environment for Seth leuding up 10 his sustaining permancnt injuries at the hands of his mother. Next. I note that the act commonly known as the Political Subdivision Tort Claims Act, 42 Pa. C.S. ~~854l - 8564, grants general immunity to cmployecs of thc local agency if all employec acting within the scope of his or her duty causes an injury to a person or to property, 42 Pa, C.S, *8541, However, an individual employee is not protected from liability for "acts that are judicially detcrmined to be a crime, actual thllld, actual malice or willful misconduct," 42 Pa, C,S, ~8550, Under the facts averred, Ms, Runyon and CYS acted with a willful disregard of their duties and for the safety and welfare of Seth when dealing with Seth's circumstances, In Ford the court applied the definition of willful disregard as reckless, willful or wanton misconduct, see 42 Pa, C.S, ~8336(d), and it followed this detinition when denying CYS' motion to dismiss based on governmental immunity, The court construed thc plaintiffs allegations against CYS defendants as acts constituting willful misconduct which barred their claims of immunity. There is every possibility that a jury may determine that CYS employee behavior amounted to willful, reckless or wanton misconduct. CYS failed to request medical records of the Fitzgerald children until after Stephen was murdered by his mother, In February of 1995 CYS received a child abuse referral from a physician after Stephen suffered a forearm fracture, but it closed the case DAS-R - 6 file ufter only U cursory und inudcquutc rcvlew, Ovcr thc next thrcc motllhs, till thrce of Susun Fitzgcruld's childrcn suffcrcd scrious and scvcrc injurics, including fructurcs, concussions ulllllaccrtltiontothc hcml. c10scd heud injury und contusions und abrasions rcquiring hospillllizutions, CYS rcopcncd its liIe and ugain c10scd it in Junc of 1995 after detcrmining that suspicions surrounding thc childrcn's injurics wcrc invalid and that it had no duty to pt'oceed further despite such overwhelming evidencc of child abuse, Thc injuries to SClh and his brothers continucd, but CYS allowcd Scth to rcmain with his mother without taking reasonablc or proper action to protect the ehild. Finally CYS allowcd thc mother to canccl CYSt schedulcd homc visit on Septcmber 12, 1995, less than two wecks aftcr Stephcn's dcath.) ) As lor whelhcr a cause of action li)r thc intcntional inllktion of emotional distrcss may be entertained, 1 note that Appellces' conduct may be charactcrized at bcsl as extreme and outragcous and that Appdlllnts havc set f()rth a viahle causc of action for intcntionlll int1iclion of cmotional distress, Appcllanls citc lillI/gel' v, GI'<JI/d Cel/lral SOllilOlioll, 670 A,2d 173 (Pa. Supcr, 1996), wherc thc Superior Court set forth thc applicable slandard in dctermining a cause of action for intcntional int1iction of emotional distress, ^ plaintiff must provc that thc defcndant's conduct was cxtrcmc and oUlragcous and thai the plaintiff suffcred a mcdically confinncd injury, Appcllecs rcly on A"II/s/rol/g v, Paoli Memorial Hospital, 633 A,2d 605 (Pa, Supcr, 1993) (citing KaZlJlsky v, Killg David Mell/oria/ Park, IlIe" 515 I'a, IS3, 527 A.2d 988 (1987)), for thc proposition that Pennsylvania has not adoptcd the causc of action of intentional int1iction of cmotional distrcss as defincd in thc Rcstatcmcnt. In Ka:alsky thc court hcld that in order to prevail on an intcntional infliction of cmotional distrcss causc of action thc plaintiff must providc compctcnt mcdical cvidcncc to prove the cxistcncc of cmotional distrcss, Thc court ncithcr adoptcd nor rejcclCd Scction 46 of the Restatement (Sccond) Torts but mcrely statcd whatthc plaintiffs burden should bc if Section 46 wcrc acceptcd, See I/oy v, AI/gelone, 554 Pa, 134, 720 A,2d 745 (1998) (holding that thc I'lctor of retaliation is a consideration in rccovcring lor intcntional inlliction of cmotional distrcss in a scxual hurassmcnt CllSC), Furthcrmorc, 1 agrcc that punitivc damagcs arc a fonn of rclief and arc not a separate eause of action, Appcllants acknowlcdgc that they crroncously plcadcd punitivc damagcs as a causc of action, According to Brellllall \" Naliol/al Telepholle Direclory Corpora/ion, 850 F. Supp, 331 (E.D, Pa, 1994), if a plaintiff asscrts punitivc damages in a scparatc causc of action, the plaintiff sbould bc granted leave to rcplead hcr claim for punitivc damagcs as an appropriate substantivc claim for damllges, DAS-R - 7 . When viewed in the light most nlvoruble to Appellllnts, the fucts as averred, if proved at trilll, support the conclusion thut Appellants have plead viable causes of action Ultd thutthe trilll cOllrt errcd in grunting the preliminary objcctions. This case is not ubout whether judges or ullorneys mllY be "moved by nuturaJ sympathy" to idcntify wuys to compensate an injured litigant. DeShalley. Rather the singular and fundamentul issue beforc the Court is whcther Appellants have sufficiently averred facts entitling them to rccover damages for the pennanent injuries suffercd by Scth in a known dangerous environment. It is for the jury to decidc, among other fuctors, whethcr the facts presented constitute state actors' willful disregard for Seth's sufety und constitute u known dangerous condition creuted by slllte actors, SC!t' C!.g, Armstro/lg v. Sqllaclrito, 152 FJd 564 (7111 Cir, 1998) (whether un actor's conduct constitutes dcliberutc indiffercnce is for the fact finder to detcrminc), Thc order of the trial court should be reversed, and this case should be remanded for trial. ORIS A, SMITH- Judge Friedman j~insin this dissenting opinion, DAS-R - 8 (1 C) (', C f'.) " ~r: i-I i ~--: ,--J ('}I ! ,:-...: " (>) 1/.' L_, r ;, , , I ~ ; , , , ; " , ) J. . , ,,- .' " . ~:. .. j ~":I ';-:'1 .' -< ..J " .. . Fill Copy Commonwealth GlUrt of Pennsylvania Ch.,I.. It. IIUOIUlh:r O'PUl}' PMhO/lUIll/)'/OM (lo,k September 19, 2002 I\INltn 624, Siltlh PIoo, IlurithW1l, PA 17120 717,II&o161O TO: RE: ROBBINS v. CUMBERLAND CO, CHILD, & YOUTH No.405 CD 1999 Trial CourtJAgency Dkt. Number: 97-4669 Trial Court/Agency Name: Cumberlend County Court of Ccmmon Pleas Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2~72 Is lhe entire record for the above maller, Contants of Original Record: Original Record Item Flied Date Description Dale of Remand of Record: Enclosed Is an additional copy of the certificate. Please acknowledge receipt by signing, dating, and returning lhe enclosed copy t9,~h~ P~thonc\ary ~ff1ce or;[he Chief Clerk's office. >f -,' -,' I"... .~ ,~~., :7~-;-~ ( t,!.'- ,',,''':1,,,.' 'I" ,\~',J- ...,,~ . -'. A' / . ,.)a-~~:', 1.;~,~' 1~. ~t.:,....,; .''\'~. :) -." / P- o 0 I"J -II .'. iDf4~ V> .-.f ,,, I~, :"1 -v e=-; ,1, N .,r;, "DC ,,0 CJ ", (.J! ;Sr, '(:), ...:~ . ~.t.) ., ~, , :/1. ['..-:-c::r ~... I, .' :.::~ ~;<.;.~' N ~'l' .. >1 ~ ....., ::b ",", -.; Commonwealth Court Filing Office - Date Printed Name BEFORE: 1I0NORABI.E ,JOSJ':1'1I '1', uonE, Presidcnt Judge' 1I0NOI~ABI.E .IAMES GAIUlNER ('OUNS, Judge 1I0NORAI1I.E BERNAIW J.. !\lcGINI.EY, Judgc HONORAUI.E DOlUS A. S!\lITII-IUnNEI~, Judge 1I0NOI~ABJ.E UAN I'EI.I,EGIUNI. Judgc 1I0NORABI.E IW('IIEU.E S. FIUEI>I\1AN, Judge 1I0NOI~ABI.E BONNIE BIUGANCE LEAD8ETTER, Judge OPINION BY JUDGE LEADBETTER fll.F.D: July 18, 2002 Seth Fitzgerald Robbins, a minor child, and his adoptive parents, Erin and Kerry Robbins, appeal thll11 the order of the Court of Common Pleas of Cumberland County, which sustained preliminary objections and dismissed their complaint against all parties other than Susan Fitzgerald, Seth's natural mother.2 The Robbins seck money damages under 42 lJ .8,C, ~ 1983 and State constitutional and tort law theories, alleging that Cumberland County Children and Youth Services, Cumberland County and several individualIy named directors, administrators and caseworkers (collectively "CYS") failed to protect Seth from physical abuse inflicted by Susan Fitzgerald. The Robbins allege that CYS and several of its employees failed to investigate properly allegations of child abuse in the Fitzgerald house and, had CYS acted with greater vigilance, the abuse suffered by Seth would have been prevented, As the scope of an appeal from an order sustaining preliminary objections necessarily raises only issues of law, our review I This case was assigned to the opinion writer prior to thc date when President Judge Doyle assumed the status of scnior judge on January I. 2002. 2 Susan Fitzgerald was joincd as an additional dcfendant. Finding that immediate appeal would facilitatc resolution of the entire case, Common Plclls enlercd this dismissal as a final ordcr pursuant to Pa, RAP. 341(c), 2 is plenary, Finding that common pleas did not err in applying the law, in spite of the harsh result, we must affirm.' This action arises oUt of the physical and psychological abuse suffered by Seth at the hands of Susan Fitzgerald, In 1995, Seth was three years old and lived with his mother and his two brothers in ~;ilver Spring Township, Cumberland County. The tirst evidence of Fitzgerald's abusive behavior came to light on February 20, 1995, when Seth's older brother was taken to the emergency room with a complex fracture to his left foreann. Two days later, Seth's brother was admitted with a second forearm fracture, also inflicted by Fitzgerald. Based on two similar arm fractures, sustained just two days apart, the treating physician referred the case to CYS for investigation of possible child abuse, CYS assigned the mailer to caseworker Christina Runyon for further investigation, On March 13, 1995, Ms. Runyon, accompanied by an officer from the Silver Spring Police Department, visited the Fitzgerald home. After the visit, Ms. Runyon advised the officer that she did not suspect abuse in the home and that she was going to close the tile, No further criminal investigation was conducted at that time, On March 28, 1995, Stephen, Seth's younger brother, sustained a similar fracture to his left forearm. CYS reopened the file and sent the x-rays of the fractures to an independent physician, Dr. Oanielle Boal, M,O., who determined that the fractures were "unusual" and "remarkably similar" in kind and in l Following argumcnt bcforc a panel of Ihis court, we cntcrcd an ordcr dirccting this matter for reargumcnt berorc thc court <'/I ba/l(, and inviting amicus curia<, participation on bchalf of both partics, Wc havc rcccivcd thc bcnefit of briefs as well as oral argument from the Support Center for Child Advocates who participatcd on behalf of the Robbins, while the Commonwcalth's Office of Gcncral Counsel along with the County Commissioners Association of Pennsylvania submittcd briefs and argued in support of Cumberland County Children and Youth Scrviccs. 3 proximity and that thc injuries raist:d suspicions of ubuse. Dr, Boal recommendt:d a complete skt:letal survey in the event that further frnclures were sustained. On June 2, 1995, Fitzgerald f1rst injured Seth by fracturing his left arm and inflicting closed head injuries, multiple contusions lInd abrasions, Seth was taken to a different hospital and knowledge by CYS of this incidence of abuse is not alleged in the complaint. At some point prior to closing the fi Ie, Ms, Runyon made a second visit to the Fitzgerald home. However, despite knowledge of at least three nearly identical arm fractures sustained by the Fitzgerald children and the advice of Dr. Boal, she closed thc tile on June 19, 1995, noting again that the suspicions of abuse were invalid. CYS closed the tile without investigating whether any further injuries wcre sustained by the Fitzgerald children and without obtaining any mcdical records for the boys. On August 29, 1995, Stephen suffered a fatal seizure when Fitzgerald suffocated him with a pillow, The county coroner immediately initiated an investigation and reported that the death was suspicious and, as a result, ordered an autopsy, On August 30, 1995, CYS received a report that Stephen had suffered seizures in the past and had sustained a prior arm fracture. Ms. Runyon visited the Fitzgerald home the next day. She then requested the medical records of the Fitzgerald children and scheduled an additional home visit for September 12, 1995. However, despite the strong indicia of abuse, Ms, Runyon allowed Fitzgerald to reschedule the home visit for two weeks later and allowed Seth and his older brother to remain in her care. On September 12, 1995, the date of the cancelled visit, Fitzgerald attempted to suffocate Seth by placing a pillow over his face, thereby inducing a severe seizure. The next day, a team of CYS professionals removed the two remaining children from the Fitzgerald home, 4 ,;.. --_.. ~-....",-- ~ ", ....--. '.,. /.....- The team opined that Stephen's death und the injuries suffered by the other two children could be the result of Munchauscn Syndrome by Proxy.~ CYS continued to investigate the allegations of abusc and concluded thai Seth was very vulnerable to abuse due to his young age. Atier reviewing the medical evidence and speaking both to Seth and Fitzgerald, CYS concluded that the incidences of abuse involving Seth's fractured arm, laceration to the head and attempted suffocation were founded, After the children were removed from the homc, CYS assumed control over their placement and medical care as well as the terms and conditions of their visitation with Fitzgerald. Fitzgerald was permitted supervised visitation with Seth until her parental rights were terminated and Seth was adopted by the Robbins. On April 2, 1998, the Robbins tiled the underlying suit in the Court of Common Pleas of Cumberland County, alleging a cause of action under 42 U ,S.c. ~ 1983 for due process violations pursuant to the Fourteenth Amendment, violations of the Pennsylvania Constitution and various State tort law claims, Specifically, the Robbins contend that as a result of ongoing abuse by Fitzgerald, which CYS permitted and facilitated, Seth suffered severe and permanent physical and menta] injuries. On May 19, 1998, CYS filed preliminary objections in the nature of a demurrer. By order dated January 15, 1999, the trial court sustained the 4 This syndrome has been defined as: a form of child maltreatment or abuse inflicted by a caretaker (usually the mother) with fabrications of symptoms and/or induction of signs of diseasc, leading to unnccessary investigations and interventions, with occasional serious health consequences, including death oflhc child, Stcdman's Medical Dictionary 1736 (26th cd, 1995), 5 preliminary objections and dismissed all claims against CYS. Rejecting the Section 1983 claim, the court held that the defendants had no duty to protect Seth from incidences of private violence. Further, the defendants did not create the danger which resulted in his injuries, nor formed a special relationship with him that would serve to drnw the defendants into a federal civil rights claim. The court further rejected the claim for violations of the Pennsylvania Constitution under the same substantive due process analysis, Finally, with regard to the State tort law claims, the court held that Cumberland County, Cumberland County CYS and the individual CYS directors, administrators and caseworkers were protected by governmental immunity. This appeal followed, When reviewing a challenge to nn order sustaining preliminary objections in the nature of a demurrer, we must determine whether on the facts alleged the law states with certainty that no recovery is possible. AneW v, Arrowhead Lakes OnlY. Ass '/1, Inc., 689 A,2d 357, 359 (Pa, Cmwlth, 1997), We accept as true all well-pleaded allegations and material facts averred in the complaint, as well as inferences reasonably deducible therefrom, and resolve any doubt in favor of overruling the dem~lrrer, Id, Preliminary objections calling for dismissal of a cause of action should be sustained only in cases that are clear and free from doubt. Id, FEDERAL CIVIL RIGHTS CLAIMS In Counts [ through V of their complaint, the Robbins assert civil rights violations under 42 U ,S.c. S 1983, alleging that CYS is responsible for the harm inflicted upon Seth by Susan Fitzgerald in violation of his constitutional right 6 to substnntive due process under the Fourteenth ^mendmenl.~ Section 1983 provides a civil remedy for deprivations of federally protected rights caused by persons acting under color of State law, AI/,H'II/IC/ SIC/liol/, Ltd. I', Pe/ll/Olli Assoc" IIIC., 654 A,2d Cl08, 612 (l'a. Cmwllh. 1995) (citing Par/'ll/l 1', Taylor, 451 U,S. 527, 535 (1981), re\/'c/ Oil ollta gl'OIIl/cI.\', DC/llids I', Willioms, 474 U,S. 327 (1986)), In determining whether plaintiffs have stated a cause of action under Section 1983, the inquiry must focus on whether the two essential elements of the action are prcsent: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a pcrson of rights, privileges, or iml11unities secured by thc Constitution or the laws of thc Unitcd States. Id. (quoting Parrett, 451 U,S, at 535), See C/lso 42 lJ.S,c' * 1983, In general, the State has no constitutional obligation to protect individuals from harm inflicted by private actors, Thc seminal case in this arca is DeS/Wiley 1'. Willllebago Coullty Department of Social Services, 489 U,S, 189 (1989), which also involved allegations that a county agency failed to protect a child frol11 thc abuse of a natural parent. CYS argues, and the trial court agreed, that DeS/Wiley is directly on point and should control. The Robbins contend that the trial court disregardp.d a well- established line of cases, decided after DeShalley, which support their causes of action, In DeShaney, the child and his mother brought an action in Wisconsin under Section 1983 against the county, the social services department and l The Fourteenth Amendment to thc United States Constitution provides, in pertinent part, that "[n]o State shllll , , , deprive any pcrson of life, liherty, or propcrty, without due process of law," U,S, Cons!. amend, XIV. * I, 7 individual employces of the departmcnt, The plainti ff~ 1I11eged that the county had deprived the child of his liberty in violation of the Due Process Clause of the Fourteenth Amendmcnt by failing to protect him against u known risk of violence perpetrated by the natural fathcr, The Supreme Court hcld that the Due Process Clause imposes no aflirmati ve duty on a State to protect an individual against private acts of violencc: [Njothing in the languagc of the Due Process Clause itself requires the State to protect thc life, liberty, and property of its citizens against invasion by private actors, The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal Icvels of safety and security, lei, at 195, Thus, the Court conduded that, "[iJf the Due Process Clause docs not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them," lei, at 196-97, In DeShalley, the Supreme Court also rejected the plaintiffs' arguments that the county parties were accountable under the special relationship and state-created danger theories, The Court limited application of the special relationship theory to situations where the State takes a person into its custody and holds him there against his will. The Court reasoned that: [W]hen the Statt: by the affirmative exercise of its power so restrains an individual's liberty that it rcnders him unable to care for himself, and at the same time fails to provide for his basic human needs, , . it transgresses the substantive limits on state action set by the [Federal Constitution's] Eighth Amendment and the [Fourteenth Amendment's] Due Process Clause, Id. at 200, 8 With rcgard to the statc-crcntcd dangcr thcory, the Court rejectcd the plaintiffs' argumcnt that since the Stote had creatcd the danger to the child, it was thereby liable, In so holding, the Court stated that: While the Stale may have been aware of the dangers that Joshua faeed in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State onee took temporary custody of Joshua does not aileI' the analysis, for when it returned him to his f~llher's custody, it placcd him in no worse position than that in which he would have been had it not acted at all; the Slate docs not become the permanent guarantor of an individual's safcty by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua. /C/. at20l, Nonetheless, the Robbins contend that more recent cases in the courts of appeals provide a basis for holding CYS liable under the special relationship and state-created dangcr theories. We disagree. Even assuming that the lower federal courts have the authority to do so, none of the subsequent cases has undermined the clear limitations DeShaney placed upon these theories, and we find these limitations fatal to the Robbins' claims. 1. State-Created Danger Theory Liability can arise under Section 1983 for acts committed by private citizens where the State creates the danger or risk of harm that led to the plaintiffs injury, Kneipp 1', Tedder, 95 F.3d 1199,1205-09 (3d Cir. 1996), In Kneipp, police officers stopped a pedestrian and her husband while they were walking home from a bar. The officers sent the husband home and left the woman to walk home alone despite cold weather and obvious inebriation, The woman sustained severe injures 9 when she fell dllwnllll Cmbllnkl11cntllno suffcrcd hypothcrmia ano pcrmunent brain damage, Aner rcviewing ClISCS finding a viablc claim undcr the state-created dangcr theory, pllrticulllrly Come/ill.\' v. Tml'l/ lif'lIighlal/d l.ake," ano Wood v. Ostral/der,' the court reiteruted the standards applicable to thc doctrinc/ ano found: " 880 F,2d 348 (11th rir, 1989), /'e'h, dC'lIh'd, 887 F,2dl 093, cal, dellie'd s/lh,lIom" Spears v, COI'I/e/irls, 494 lJ,S, 10(,6 (1990), In CO/'lle/ius, sttlte prison ort1cials instituted II work program which pennined inmates to work in public t1retls with access to dangerous wellpons, The State then IIssiglled an ulltruined, ulltlrmed city employee to work with un inmute huving u known history of violent bclHlvior, The inmllte abducted the employee und hcld her hostage. subjecting her to repeuted physical und sexutllthretlts, We note that in While I', 1.e'lI/ocks, 183 F,3d 1253, 1258, 1259 (\ Ith Cir, 1')99), the Elcventh Circuit overruled Comellfls as inconsistcnt with Collills v, Ciry of /lol'ke'1' /lci)!.hlS, 50.1 U,S, 115 (I <)1)2), stating: lindeI' ('ollillS, gllvcfIlment officials violate the substantivc due process rights of a person not in custody only by conduct "that eun properly be ehul'Ucterized as arbitrury, or conscience shocking, in a constitulionul sense," Col/ills, 503 U,S, at 128" , Like a favorite unclc who has passed away ill Ihe parlor, Come/ius nceds to be interred, We do so now, Recognizing thllt il WIIS dealt a fatal blow by (,ollills, we pronounce Comdius dead and buried. The law on substantive due proccss when a citizen who is not in custody c1uims that a govemmental unit, agency, or official has caused her hann is supplied by the Collills decision, which occupies the field to the exclusion of anything we said about such cllses in CO/'lle/ius, 7879 F,2d 583 (9th ('iI', 1989), (,1'1'1, dellied, 498 U,S, 938 (\ 990), 5 In Klleipp, the Third Circuit rccognized four common elements for imposing liability under Ihe state-created danger theory: (1) the harm ultimately causcd was foreseeable and fairly direct; (2) the State actor actcd in willful disregard for the safety of the plaintiff; (3) there existcd somc relationship between the State and the plaintiff; [and] (4) the Statc actors used their authority to crcute an opportunity that otherwise woulclnot have existcd for the third party's crime to occur, 95 F,3d at 1208 (quoting Mo/'k v, Bo/'ough (~fll(/Ihoro, 51 F,3d 1137, 1152 (3d eir, 1995), eerl dellied, 516 U,S, 858 (1995)), See a/so CallI/oil I', Cily of Phi/ode/phio, 86 F, Supp 2d. 460 (E,D, Pa, 2000), al('d, 261 F,3d 490 (3d ('iI', 200 I), cm, del/iet!, 122 S, Cl. 212 (2001) (discussing (Footnote continued on next page...) 10 The conduct of the police. in allowing Joseph to go home alone and in detaining Samantha, lInd then sending her home unescorted in a seriuusly intoxicated slUte in cold weather. made Samantha more vulnerable to harm. . . . A jury could lind that Samantha was in a worSt' position after the police intervened than she would have been if they had not dune su, As a result 01' the anirl11ative acts of the pulke officers, lhe danger or !'Isk of injury to Samantha was greatly Increased, KIIeipp, 95 FJd at 1209. Concluding that the elements of a due process violation under the state-created danger doctrine had been averred, the court reversed the grant of summary judgment and remanded the case for trial. In Wood, a woman who had been the passcnger of a drunk driver was abducted and raped aner the officer who arrested her companion stranded her in a high-crime area five miles from her homc at 2:30 a,m, The court concluded that, "Wood has raised a genuine factual dispute regarding whether Ostrander deprived her of a liberty interest protected by the Constitution by affirmatively placing her in danger and then abandoning her," Wood, 789 F,2d at 596. Similarly, in White v. Rochford, 592 F,2d 381 (7th Cir. 1979), a triable issue of fact under the Due Process Clause was found to have been raised by allegations of injury to three minor children, After arresting their uncle for drag racing on a cold night, police left the children alone in an automobile along the side of an eight-lane limited (continued...) Coullty of Sacramellto v, I.ewis, 523 U,S. 833 (1988), which clarified thc standard of fault neccssary to triggcr liability undcr Scction 1983 in a statc.crcated danger claim), For purposes of this appeal, we do not addrcss thc first three elemcnts discusscd in KIICipp, as thc fourth element is dispositive, Wc note only, Iikc the Elevcnth Circuit in Whire, and the District Court in Call1lon. that the willful disrcgard standard encompasscd in the second elcment would uppcar to conflict with the "shocks the conscience" standard mandated by the Suprcme Court in cascs such as Collins and Lewis, II uccess highway. Both the oflic~rs on th~ SC~IIC and the policc dcpurtmcnt r~fused pleus of the unclc and, later the children's mother, to tuke them to the police station or otherwise rescue them frol11th~ir plight. As was noted in Pml'son 1'. Millel', 988 F, Supp. 848, !l54 (M.D. Pu. 19(7), "In ~nch of thesc cases, the State's agent altcred the plaintiff's situation in sUl;h (\ way as to place him or her in the path of a peril hc had not thced before State intcrvention and then did nOthing to remove or eliminatc the risk that he had created." Nonctheless. the Robbins cite Klldpp to argue that by failing to take action to removc the childrcn, CYS "used their authority to create an opportunity which otherwise would not have existed for the specific harm to occur. Plailltiffs lIeed not show IIn ({llil'lI/llth'e l/c:ltoji/(filltl1is I'el/llirell/elll," Appcllants' brief at 2 J (emphasis added), This assertion, howevcr, is belied by the extcnded reviewal' federal caselaw in Kneipp, which contrasts the cases of affirmative State action (where a claim was recognized) with the cases involving failure to act (where it was not) and concludes that, '''[IJiability under the state created danger theory is predicated upon the States' aflil'mative act.l' which work to plaintiffs' detriments in terms of exposure to danger.'" Klleipp, 95 F.3d at 1207 (quoting D.R. v. Middle Bucks Area Vocational Tech, Sell., 972 F.2d 1364, 1374 (3d Cir. 1992), cert, denied, 506 U.S. 1079 (J 993)) (emphasis added), See also Estate of Burke v, Mahony City, 40 F, Supp 2d. 274,280-81 (ED, Pa. 1999), aff'd, 213 F,3d 628 (3d Cir, 2000). While the Third Circuit has subsequently raised some question about this distinction in Morse v. Lower Merion School Distl'ict, 132 F,3d 902, 914 (3d Cir, 1997) (noting that "the line between an affirmative act and an omission is difficult to draw"), we are persuaded that the approach taken by the Kneipp court, which is consistent with the holdings of the other federal circuits, is both sound and 12 faithful to the holding of f)dil/{II/(~I', As the trial court noted in the case SIIh jlldie.'!!, the Suprcme Court "cxprcssly held that the State could not be considered to have created the danger to the minor plainti ff under circumstanccs cven more compelling [DeSI/C/I1eYI than those of thc prcscnt case [RohhillsJ," Robbins v, ellmiler/mld COII/IIY Childrell alld rOllt}, Se/'\'s" No, 97-4()69 (c'C',P. Cumberland County, filed January 15, 1(99), slip op, at 14, (hcreinat1cr Trial Court Opinion), Accordingly, we conclude that the Robbins have failed to allege II constitutional violation based upon the state-created dangcr theory, 2. Sllecinll{c1atiollshill Theory The special relationship themy providcs that liability can arise under Scction 19R:I for acts cOl11l11illcd hy privatc citizcns only if thc State entcred into a specialrclationship with the plaintiff under which it assumed a duty to ensure the plaintiff's continucd well-being, Thc Robbins allege that by accepting the referral of abusc, CYS acccpted a duty to protcct Seth from harm and entered into a special relationship with him and, despite that relationship, CYS acted with deliberate indifference and in reckless disregard of the high degree of foreseeable danger to Seth. However, as the Third Circuit noted in Klleipp, the relationship required under the special relationship theory "has a custodial element to it n the State must affirmatively act to restrain an individual's freedom to act on his or her own behalf either through incarceration, institutionalization, or some other comparable limit of personal liberty." 95 r,3d at 1209 n,22, Set! also COWIIS v, City of Harker Heights, 503 U.S, lIS, 127-28 (1992) and Pearsoll, 988 F, Supp. at 855. This interpretation, like that regarding the state-created danger theory, is faithful to the concept set forth in DeShalley, that "[tJhe affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help 13 him, but from the limitation which it has imposed on his freedom to act on his own bdlUlf," 489 U.S. at 200. Thus, because the complaint fails to allege any restraint by the State on Seth's personal liberty prior to his removal from the Fitzgerald home, the Robbins have failed to state a cause or action under the special relationship theory for the injuries whkh occurred while he remained in his mother's care. However, the Robbins also assert a claim for violations of Seth' s constitutional rights arising from conduct which occurred after Seth was taken into CYS custody. The Third Circuit has held, and we agrce, that when the State places a child in foster carc, the State enters into a special relationship with the child triggering afllnnative duties on the part urlhe Slate. Nici"i v. Morra, 212 r,3d 798 (3d Cir. 2(00) (en banc). Therefore, when CYS entered into a special relationship with Seth by placing him into foster carc, a corresponding constitutional duty was imposed upon CYS to provide for his basic human needs, such as food, shelter, medical care and reasonable safety, See DeS/za"cy, 489 U,S, at 200, The standard by which we determine whether this duty has been breached is whether CYS acted with such deliberate indifference to Seth's danger as to shock the conscience, Nid"i, 212 F.3d at 810, However, the Robbins fail to assert facts which demonstrate how CYS breached this duty of care, The Robbins complain only that CYS allowed Seth supervised visitation with his mother during this period. They do not allege that Seth was further abused, or was in any danger of further abuse, only that contact with his mother caused additional psychological harm, Even assuming, arguendo, that a custodial relationship imposes a constitutional duty to attend to psychological health as a basic human need like food and medical care, we find this allegation inadequate to state a violation of Seth's constitutional rights, 14 ~1l\Ying tukcn custody of Scth, C'YS wus faced with u Hobson's choice betwcen cUlling off, prccipitously, all contnct betwecn a three-year-old child and the mother with whom hc had lived since birth (and as to whom parental rights had not yet been terminated),'J or allowing SOIllC continuing visitation in the physical presence and supcrvision of C'YS officials. Whatcver a psychologist might opine in hindsight, thcrc arc no facts allegcd that cven suggcst that C'YS knew, or even should have knO\vn,lo that onc option posed a greater psychological risk of harm than the other, We do not belicve that the selection of either option can amount to deliberate indifference to Seth's safety and well being, absent some additional circumstances not alleged here, 3. Failure tll Tnlin A claim of liability under Section 1983 is also grounded upon the theory that CYS failcd to properly train and supcrvisc cascworkers, specifically Ms, Runyon, A municipality's failure to train cmployees can scrve as the basis for Section 1983 liability where the failure to train is the "moving force" behind a constitutional violation, See City of Call/all v. Harris, 489 U,S, 378, 388-89 (1989), In light of our disposition of the underlying claims based upon the caseworkers' failure to protect Seth from his mother, we must conclude that preliminary 9 In this regard it must bc notcd that thc Supremc Court has rccognizcd a "fundamental liberty intercst of natural parents in the carc, custody and managcment of their child," Miller v, Philadelphia, 174 FJd 368 (3d eir, 1999) (citing Sal//os/..y v, Kramer, 455 U,S. 745, 753 (1982)). This tension betwcen the rights of Fitzgerald and Scth furthcr compounds the dilemma faced by CYS, and cautions rcstraint in finding a constitutional violation in CYSt ill.fated attempt to balancc these rights, 10 As in Nidl/i, wc nccd not hcrc dccidc whcther the deliberatc indifference test is to be measured by tr.C risks known to CYS or the risks of which thcy should have been aware, Howcvcr, we notc that in a prison condition case, thc Supreme Court applied the actual knowledge standard, See Farmer \', IIrel/l1al1, 5 Ill!,S, 825, 837 (1994), 15 objections wel'~ prllp~rly sustain~d to this claim us w~11. To recov~r und~r S~ctlOn 1983 based upon u fuilur~ tlltrain the municipal aclors who caused the plaintin~s harm, a plainti ff must ~stublish both that "') the failure to tmin amounted to u deliberate indiff~rence to th~ rights of persons with whom lh~ police come in contact; und 2) th~ l11unicipality's policy actually caused a constitutional injury," Carro// v. Borough o/S/(/tl.' Co//., 854 F. Supp, 1184. 1195 (M.D. Pa. 1994), a/rd, 47 FJd 1160 (3d Cir, 1995), While 1110st failure to train caseworkers have dealt with questions regarding the deliberate indifference clcment, the existence of a constitutional deprivation is a fundamental thr~shold requircmcnt of any Section 1983 claim. As the Supreme Court noted in City (~f' Los Angeles I'. Heller, 475 U,S, 796, 799 ( 1986): [N]either MOl/ell v, New York Cit)' Dept. 0/ Social Services, 436 U.S. 658, 98 S. ('I. 2018, 5(J L.Ed.2d 611 (1978), nor any other of our cas~s authorizes the award of damages against a l11unicipal corporation based on the actions of one of its oniens \Vh~n in fact the jury has concluded that the officer inflicted no constitutional harm, If a person has suffcred no constitutional injury at the hands of the individual police officer. the fact that the departmental regulations l11ight have authorized the use of constitutionally excessive force is quite beside the point. (~mphasis in original), Thus, the constitutionality of a municipal policy is irrelevant in the absence of a constitutional injury causally related to that policy, See Simmol/s v, Philadelphia, 947 F,2d 1042,1063 (3d Cir. 1(91), Accordingly, since there was no breach of any constitutional duty owed to Seth by any State actor, no Section 1983 claim could be sustained even if the Robbins were able to uncover some municipal policy which might be characterized as deliberate indifference. 16 To the extent that the Third Circuit in Fagal/ 1'. CiIY of Vil/e/al/d, 22 FJd 1283 (3d Cir. 19(4) has held to the contrary, I I we reject this construction of Section 1983 as inconsistcnt with pronouncements of the Supremc Court, particularly Heller.11 Rather, we acccpt the reasoning of the vast majority of federal circuits, which adopt the general rule that a municipality cannot be liable unless there is a constitutional violation by the municipal actor causing the plaintiffs harm, See, e,g., Trigalet 1'. City of Tulsa, 239 FJd 1150, 1154-56 (10th Cir, 2001), eert, del/ied, 516 U.S, 932 (1995); SCOII v. Clay County, 205 F.3d 867, 879 (6th Cir.), arl. del/ied, 531 U.S. 874 (2000); EVal/s v. AvelY, 100 F.3d 1033, 1039-40 (1st Cir, 1(96), cert. dellied, 520 U,S. 1210 (1997); 71lOl/Ipsol/ v. Boggs, 33 FJd 847, 859 n,ll (7th Cir. 1(94), ccrl, dCl/ied, 514 U,S. 1063 (1995). Moreover, even under the Fagall analysis, there still must be constitutional injury. See Estate of Burke v, Mahol/ey City, 40 F. Supp 2d, at 285-87, Since the rejection of the Robbins' primary causes of action against thc individual actors is based upon the principlc that the Statc has 110 cOl/slilutiol/al dlllY to protect citizens from the acts of other private citizens, c\'en under Fagal/ there could be no direct claim against the municipal defendants for failure to train and supervise caseworkers to detect and prevent private abuse, 4. Child Protective Services Law The Robbins' final theory of liability under Section 1983 asserts that CYS violated the Child Protective Services Law, 23 Pa. C.S, ~S 6301-6385, by failing to obtain necessary medical evidence and failing to properly investigate claims of II We note that in Mark v, Borollgh of Ihahoro, 51 F.3d 1137, 1153 n,13 (3d eir, 1995), a pancl oCthe Third Circuit qucstioncd the cxtent oCthe holding in Fagan, Wc do not here attempt to explore this question, 12 Sce also Collins, 503 U,S, at 124. 17 abuse, Mere violation of State law does not give rise to a constitutional claim. Liability under Section 1983 can be predicated only upon violation of federal statutory or constitutional rights, See KI/eipp. 95 F.3d at 1210. Nonetheless, State law may create a right in property or liberty, which interest is then protected by the Due Process Clause, In turn, a deprivation of due process by the State can form the predicate of a Section 1983 claim, However, as the Supreme Court pointed out in Collil/s, even where State law imposes a duty not otherwise imposed by the federal constitution and that duty creates a "liberty interest" protected by the Due Process Clause, breach of that duty docs not rise to the level of a Section 1983 violation unless the State action is itself arbitrary and capricious in the constitutional sense. 503 U.S, at 129-30, As in Collins, none of the facts pled here would support such a claim. PENNSYLVANIA CONSTlTlJTIONAL CLAIMS The Robbins also assert a direct cause of action under the Pennsylvania Constitution, alleging that CYS deprived Seth of his right to liberty and to be free from physical harm guaranteed by Article I, Section \.13 Neither party has briefed the difficult issue of whether there exists a direct right of action for money damages against govemment officials for violations of the Pennsylvania Constitution, and our research has not uncovered any case where such a cause of 13 Article I, Section 1 ofthc Pennsylvania Constitution provides: All mcn arc born cqually frce and indcpcndent, and have ccrtain inhercnt and indefeasible rights, among which are those of cnjoying IInd defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursing their own happiness. Pa, Cons!. ltrt, I, * 1, 18 action was recognized.11 Nevertheless, even if a direct cause of action may be maintained, our analysis of the Federal Due Process clause resolves the State constitutional claims under Articlc I, Scction I. Thc Pennsylvania Supreme Court has held that "the requircments of Articlc I. Section 1 of the Pennsylvania Constitution are not distinguishable from those of the [Due Proccss Clause of the] 14th Amendment , , , [thus] we may apply thc samc analysis to both claims," Penllsylvania Game Comm'lI v, Marich, 542 Pa, 226, 229 n.6, 666 A,2d 253, 255 n.6 (1995) (citing R, I'. Departme/lt of Puhlic Wdfarc, 535 Pa, 440, 461-62, 636 A.2d 142, 152-53 (1993)), Accordingly, we agrce with the trial court that the Robbins' have failed to state a claim under the Pennsylvania Constitution. 15 STATE TORT CLAIMS AND PUNITIVE DAMAGES We likewise conclude that the trial court properly dismissed the State tort law claims, The Robbins assert a cause of action in negligence as wcll as claims undcr Sections 324 and 46 of the Restatemcnt (Second) of Torts for intentional intliction of emotional distress and, 111 a separate count, they seek punitive damages. Specifically, the Robbins contend that CYS acted with gross negligence and in willful disrcgard for, and in deliberate indifference to, Seth's safety, While the Robbins concede that CYS in its capacity as a local agency 14 But see Harley v, ScllIlylkill COllnty, 476 F. Supp, 191, 195-96 (E,D. Pa, 1979) (citing Erdman v, Mitchell, 207 Pa, 79, 56 A. 327 (1903)), Il Assuming, argl/C/ICJo, that a direct cause of action would be cognizllble under the Slate constitution, immunity lIndeI' 42 Pa, C.S, 9~ 8541-8546, would serve to bill' any State constitutional clllims assertcd against CYS. See Section 8542(b) (granting immunity for claims for monetary damages exccpt with respcctto eight sped tic types of conduct, none of which is applicable here). See also Sameric Corp, v, City of Philadelphia, 142 FJd 582, 600 (3d Cir, 1998), See also ArgeslII I', Goode, 797 F,Supp. 399, 409 (E,D, Pa, 1(92), 19 would be immunc from liability, \hey conlend thot thc conduct of the individual cmployecs constitutcd willfulll'isconouct serving to vitiate their immunity. Undcr 42 Pa. c.s. *s 8541-8542, cOlllmonly referred to as the "Political Subdivision Tort Claims Act," local agcncies orc immune from liability for injuries caused by an oct of the agency. its employees or any olher person, See Section 8541.1" Scction 8545 grants the same immunity to un employee of the locol agency acting within thc scope of his official duties,17 This immunity is abrogated, with respect to individuals only, for conduct constituting a crimc, actual fraud, actual malicc or will ful misconduct. Diaz v. HOlick, 632 A.2d 1081, 1085 (Pa, Cmwlth. 1993), See also 42 Pa. C.S. S 8550, In King v, Breach, 540 A,2d 976, 981 (Po. Cm\Vlth. 19811), wc notcd the type of behavior' which constitutes willful misconduct: Willful misconduct, for the purposes of tort law, has been defined by our Supreme Court to mean conduct whereby the actor desircd to bring about the result that followed or at least was aware that it was substantially certain to follow, so that such desire can be implied, Evans v, 16 That section is liS follows: S 854 J, Governmental immunity generally Except as otherwisc providcd in this subchapter, no local agency shall bc liable for any damagcs on account of any injury 10 a person or property caused by any act of the local IIgcncy or an employcc thcreof or any other person, 42 Pa. C,S. S 854 J. 17 That section is as follows: Scction 8545. Omcialliability gencrally An employcc of a local agency is liable for civil damages on account of any injury to a person or properly caused by acts of the. employee which arc within the scope of his officc or duties only to the samc cxtent as his employing local agcncy and subject to the limitations imposed by this subchaplcr, 42 Pa, c.s, 9 8545, 20 PhiltICh4!I!lir/ 'li'cll/.I'flor/(/I;oll COII/flr/IIY, 418 Pa, 567. 212 A.2d 440 (1%5). In other words, the term "willful misconduct" is synonymous with the term "intentional tort." S,'I.' W. Prosser, !!r/III/hook of ThL' Law of Torts, 31 (4thed.1971). To prove willful misconduct, a plaintiff must establish that the actor desired to bring about the result that followed, or nt least it was substantially certain to follow, i.('" specific intent. D;a::, 632 A.2d at 1085, We conclude here that the allegations do not state a claim that any of the individual appellees acted with the requisite specific intent to injure Seth. As the trial court noted: [AJ fair reading of the factual allegations regarding the Defcndants' conduct. and the reasonable infercnces to be drawn therefrom, if believed, do not support a conclusion that any of the individual defcndants acted with malignant iCelings or a wicked disregard of the interests of the minor plainti fT. Nor do they support a conclusion that any such defcndant acted with an intent that the minor plaintiff be injurcd, or with an awareness that his injuries were substantially certain to occur. At most, the complaint presents a series of events in which an error of judgment by a defendant in failing to recognize an unusual personality disorder in the minor plaintiff's mother resulted in the most tragic of consequences, Trial Court Opinion at 19, Finally, we note our agreement with the trial court that punitive damages are a form of relief, not a separate cause of action under Pennsylvania law. See Murray v, Gencorp, lnc, , 979 F, Supp, 1045 (E,O, Pa. 1997).18 Ii Having detennincd on the facts as IIverrcd that CYS is not liable for the hann suffered by Seth. it is unnecessary to grant the Robbins an opportunity to rc-plead punitive damages as a prayer for relief in the subslantivc counts of the complaint. Furthcr, punitive damages may not be asscssed against a municipality or against individual defcndants sued in their official capacities. Arges/eJ, 797 F, Supp, lit 410, 21 OI{DF.!! . AND NOW, this lBth day of Jult, 2002, the , January IS, 1999 orde~ of the Court of Common Pleas of Cumberland County in the above-captioned mutter is hereby AFFIRMED, ~ I~(,"?d kit--- BONNlJo~ BRIGANCE LEADBETTER, Judge ~ Ifl ).. Er; -, " fr; , v.~ .. '(- ~J(' C'J )",' ~'r. r.'}' I,". - " 1'- I' ': ,.J:\' (',' . ,.,-. I,;'J ;lJ> ,I,'), ':l:';;"! b,,' l"'- ':! !fJ1 IJ~II , C" , . l', Hllt'j, I (;; ,J).l:: ,I , ., 1,-',1 a (') I , l,;"..J " " " 'I j \ j' I " ,I IF ,\ ,I " 'I 2 , ; BEFORE: HONORABLE JOSEPH T, DOYLE, President Judge HONORABLE JAMES GARDNER COUNS, Judge HONORABLE BERNARD L. McGINLEY. Judge HONORABLE DORIS A, SMITH-RIBNER. Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCIIELLE S, FRIEDMAN, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge DISSENTING OPINION BY JUDGE SMITH-RIBNER FILED: Joly 18, 2002 I dissent from the majority's decision to a ffi I'm the order of the Court of Common Pleas of Cumberland County, The trial court sustained Appellees' preliminary objections and dismissed Appellants' nine-count complaint raising claims of civil rights violations, a failure to protect Appellant Seth Fitzgerald Robbins, a minor, al:d an intliction of emotional distress in connection with permanent injuries causcd by the minor child's biological mother. I also disagree with the majority that this case must bc strictly construed under the rubric of DeShaney v, Willllebago Coullty Department of Social Services, 489 U,S, 189 (1989), among other cases, and that Appellants do not have viable state-related causes of action against Appellees. Thc majority has denied Appcllants their right to have the facts of their case determincd by a reasonable jury, not by this Court. In DeShaney the Unitcd States Supremc Court hcld that the state had no constitutional duty to protect a child from his father aftcr the state had received reports of the father's abuse, The court denied the child's civil action under 42 U,S,c. S 1983 against social workers and local officials who received complaints that the child was abused but failed to take any action to remove the child, I The 'The pctitioner's Scc,tion 1983 callSC of action allegcd that the respondents dcprivcd the child of his substantive rigbts undcr thc Due Process Clausc of thc Fourtecnth Amcndment by failing to protect him against his t'athcr's abuse, Although custody was initilllly withheld, the (Footnote continued on next page...) DAS-R - 2 court rcasoncd that the Duc Process ('ltlUSe of the Fourteenth Amendmcnt imposcs no affinnativc obligation on the state to protect life, liberty or property of a citizcn ngainst invasion by a privatc aclllr. Morcover, whilc thc state muy have bcen awarc that thc child was in dangcr no special rclntionship existed bctwecnthe child and the state, which playcd no rolc in crcating thc dangcr thatthc child faccd nor did anything to rcnder the child morc vulncrable to the danger, Appellants requcstthis ('ourtto rejcct a strict reliance upon DeSlwfley and to apply exceptions to the general rule that the Due Prucess Clause provides no basis for a Section 1983 cause of action, Those cxceptions provide thut a duty to protect may arise out of certain special relationships between the stute and the injured child or whcn a state-crcated danger or risk of harm exists which causes injury to the plaintiff, Kl1eipp v, Tedder, 95 F.3d 1199, 1208 (3d eir, 1996). Unlike the majority, I am convinccd that thc state-created danger theory should be applied to Appellants' case, which imposes liability under Section 1983 for acts committed by a private citizen when the danger or risk of harm causing the plaintiffs injury was created by the state. The Kneipp court agreed that DeShaney left open the possibility that a constitutional violation may occur despite the absence of a special relationship, The court enunciated a four-part state-created danger test that a plaintiff must meet to prevail: (continued...) court returncd thc child to his futhcr aftcr two doctors. B policc dctcctive, social service cBseworkcrs, hospital pcrsonnel and the county allorncy jointly determined that because insufficient cvidenr.e of child abuse existcd, the child could no longer remain in the court's custody. particularly whcre in this instllnce thc flllhcr denicd any abuse, DAS-R - 3 (1) thc hurm ultimately caused was foreseeuble uno fairly direct; (2) the stute actor acted in willful disrcgurd for the ~ufety of the pluintiff; (3) there existed some relutiunship between the sltlle and the pluintiff; (4) the stute nctors used their authority to create an opportunity thut otherwise would not ha\'\~ existed for the third party's crime to occur. If propcrly analyzed under the Klleipp test the fncts us averred demonstrate, first, that the reasoning in D,,81/(l/1e>, for dcnying relief does not apply, The Supreme Court decided the case strictly on 0 special relutionship test, which 1 agree docs not apply here, and at no time did the court foreclose relief under the state-created danger theory when appropriate factual circumstances exist. It did not rule that a special relationship is a prerequisite to state liability in all cases of injury due to private violence. Second, if believed by a jury, the facts as avcrred demonstratc that the harm suffered by Seth was foreseeable and direct, that state actors acted in a willful disregard for the child's safety, that some relationship existed between the state and the child and that state actors used their authority to create an opportunity for Seth's mother to abuse him, That opportunity otherwise would not have existed but for the state actors' conduct. An analogous situation was presented in Ford v. Johnson, 899 F, Supp, 227 (W,D, Pa, 1995), aff'd, 116 F.3d 467 (3d Cir, 1997). The District Court for the Western District of Pennsylvania denied the CYS defendants' motion to dismiss a civil action filed by a biological mother arising out of the dcath of her two-year-old child, Shawntee Ford. The child was beaten to death by her father after he was granted custody by the family court in Allegheny County. The district court held that where CYS takcs aft1rmative Hction to remove a child from a parent and then returns the child to the same household and the parent thcreaner inflicts injury, CYS has created a danger that would not have otherwise existed,p DAS-({ - 4 According to the court: "The fuct that the child is placed with II purent us opposed to u foster purenl should not change the slllndanls by which social agencies und their employees conduct their investigutions." Ford, lI99 F, Supp. at 233. The compluil1laverrcd that CYS fuiled to investigate the flllhcr's circulllstances and to report known inforl11ation, which would have disqualified him from regaining custody of the child. The district court In Ford udopted the state-creatcd dangcr theory, which perl11itted the plaintiff to prove liability against the CYS defendants if she could establish that state actors crcated a dangerous cnvironl11ent, knew that it was dangerous and used their authority to creatc an opportunity othcrwise unavailable for a third party to cOl11mit a crime, Evidence must cxistlO show thc defcndants' indifference to the child's conditions. Id. The reasoning and holding in Ford arc particularly persuasive herc whcrc Scth c1carly was under CYS' authority and supervision by virtuc of the agency's opcn casc files on the family and the affirmative duty on CYS to monitor, supervise and investigate what went on in thc child's home aftcr it acquired information about the serics of abuses perpetrated against Seth and his brothers, their hospitalizations and the death of Seth's oldest brother Stephen. See also Currier v, Doran, 242 F.3d 905 (loth Cil'. 2001) (citing Ford, among other cases, the court applied the state-created danger theory and hcld that state officials may be liable for injuries caused by private actors when the officials create danger that lead to harm). CYS only made three schedulcd visits to thc Fitzgerald homc bcfore Susan Fitzgerald was ultimately arrested for murdcring Stcphen. Once CYS intervened in March of 1995, it assumed an affirmative duty to protect Seth and to put Susan Fitzgerald on notice that her behavior and the care of her children would DAS-I{ - 5 be monitored und invcstigutcd. Scth wus uguin injured on September 12, 1995 whc:n his ll10ther tricd to suf'focllte him. CYS wus scheduled to muke u home visit thut day but allowed Susan Fitzgeruld to cancel the home visit despite CYS's knowledge of Stephen's death on August 29. CYS had authority to monitor and to invcstigate the mother's care of her children, and it was CYS' conduct und indifferencc to this responsibility, which created a known dangerous environment for Seth leuding up to his sustuining permancnt injuries ut thc hands of his mother. Next, [note that thc act commonly known as the Political Subdivision Tort Claims Act, 42 Pa, C.S, SS8541 - 8504, grants general immunity to employces of the local agency ifan cmployee acting within the scope of his or her duty causes an injury to a pcrson or to property, 42 (la. C.S, *8541. Howcvcr, an individual employee is not protectcd ti'om liability for "acts that arc judicially determined to bc a crime, actual fraud, actual malice or willful misconduct." 42 Pa. C.S. ~8550, Under the facts averred, Ms. Runyon and CYS acted with a willful disregard of their duties and for the safety and welfare of Seth when dealing with Seth's circumstances. In Ford thc court applied the definition of willful disregard as rcckless, willful or wanton misconduct, see 42 Pa. C.S. S8336(d), and it followed this definition when denying CYS' motion to dismiss bascd on governmental immunity, The court construed the plaintiffs allegations against CYS defendants as acts constituting willful misconduct which barred thcir claims of immunity, Thcre is every possibility that a jury may determine that CYS employee behavior amounted to willful, reckless or wanton misconduct. CYS failed to request mcdical records of thc Fitzgerald childrcn until ancr Stephen was murdered by his mother, In February of 1995 CYS reccived a child abuse referral from a physician aner Stephen suffercd a forcarm fracture, but it closcd the case DAS-R - 6 liIe aileI' only a cursory and inadl.'quute rl.'view. Over the next three months, all three of Susan Fitzgernld's children suffered serious and severe injuries, including fractures, concussions und lacerntion tu thl.' head, closed heud injury and contusions and abrasions rcquiring hospitalizations. CYS reopencd its Iilc and aguin closed it in Junc of 1995 aileI' determining that suspicions surrounding thc children's injurics were invalid and that it had no duty to proceed further despitc such overwhelming evidence of child abuse. The injuries to Seth and his brothers continued, but CYS allowed Seth to rcmain with his mother without taking reasonable or propcr action to protect the child, Finally CYS allowed the motlwr to cancel CYS' scheduled home visit on September 12, 1995, less than two wceks after Stephen's death.2 1 As for whethcr a callsc of action for lhc intcntional inl1ictionof cmoti<ll1al dislrcss may be cntertained, I note thut Appellccs' conduct may be characterizcd ut best as extreme and oUlragcous and that Appellallls havc set forth a viablc causc of action for intcntional infliction of emotional distrcss, Appcllants citc lillI/gel' \" Gral/d Cel/lral Sal/itatiol/, 670 A,2d 173 (Pa, Super. 1996), where the Supcrior Court sct forth the applicable standard in determining a cause of action for intentional infliction of cmolional distress. A plainti ff must prove that the dcfendant's conduct was extreme and outrageous and that the plaintiff suffered a medically confirmed injury, Appellecs rcly on Armstrol/g \" Paoli Memorial Hospital, 633 A.2d 605 (Pa, Super, 1993) (citing Kaza/sky \" Kil/g David Memorial Park. II/C., 515 Pa, 183,527 A.2d 988 (1987)), for the proposition that Pennsylvania has not adopted the cause of action of intentional infliction of emotional distress as defined in the Restatement. In KazatsAy Ihe court held Ihat in order to prevail on an intentional infliction of emotional distress cause of IIction the plaintiff must provide competent medical evidence to prove the cxistence of emolional distress. The court neither adopted nor rejected Section 46 of the Rcstatement (Second) Torts but merely stated what the plaintiffs burden should be if Section 46 werc acceptcd, See Hoy v. AI/gelone, 554 Pa. 134, 720 A,2d 745 (1998) (holding that the factor of retaliation is a consideration in recovering for intentional inlliction of emotional distress in a scxual harassment case), Furthermorc, I IIgrce that punitivc damages are a form of rclicf and arc not a separate cause of action, Appcllants acknowledgc that they crroncously plelldcd punitive damages as a clluse of action, According to Brel/nan v, Natiol/al Telephone Direc:tOlY Corporation, 850 F. Supp, 331 (E,D, Pa. 1994), if u pluintiff usscrts punitive damagcs in a scparlltc cause of action, the plaintiff should bc granled leavc 10 rcplead her claim for punitive dumages liS anappropriatc substanlivc claim for damagcs, . D^S-R - 7 When viewed in the light most fuvoruble to Appellunts, the fucts us averred, ifproved attriul, support the conclusion thut Appellants havc plead viable causes of action and thutlhe trial court erred in grunting the preliminary objections. This case is not about whcther judgcs or lI110rneys may be "movcd by natural sympathy" to identify ways to compcnsate an injured litigant. DeShaney. Rather the singular and fundamcntal issue before the Court is whether Appellants have sufficicntly averrcd facts entitling them to rccover damagcs for the permanent injuries suffered by Seth in a known dangerous environment. It is for thc jury to dccide, among other fa..:tors, whether the facts presented constitute state actors' willful disrcgard for Scth's safety and constitutc a known dangerou3 condition created by state actors, See e,g, Armstrong v. Sql/adrito, 152 FJd 564 (7lh Clr. 1998) (whcther an actor's conduct constitutes dclibcrate indifference is for the fact finder to dctcrminc), The ordcr of thc trial court should be revcrsed, and this case , should be rcmandcd for trial. Jud*e Friedman joinsin this dissenting opinion. P f';1 n \"./ " (.&: 'Il I , "1:,,':, '\ '1\ rlll'l .I , ,- ~, 'j, ;-..)1 I,!.\ ,l!',ft;; , ....' . t? ~:: ~.i j , '~l') ~;~. \_01 ..,; ....{ :'1, , )--'.' ~'; (") ~ 'fl~ ~;f~J l'J I' , ,.'\j .. ;~~ ~ ".l :q -' ell .... DAS-R.8 ~ ". C:~:II'J'1 ~'lCA'I'B AND 'l'IlANBMI'I"I'Al. OV ImCOllll LJNllIW r..EN!i~:r'I'\I~~_I-'LI~~...!:: ()Fnll.I.'PBl.l.A'I'I'; l'IlQ9:I>Il!lB 19 31...J..~1 '1'0 the I'L'othonotar-y of 1I1c ^PI)(~J Jilte Court to which the within mat ter 11<16 been appe,lled: COMMONWEALTH COUIl'l' OF PA TilE UNllEIlSIGNED, Prothonotary or the Court of Common PJeil6 pf ~A~P_._._____. County, the said court being iI court of record. do hereby certify that annexed hereto i6 iI true and correct copy of the whole and entire record, including an opinion of the court tiS required by PA Il.A.P. 1925. the original papers and exhibits, if any on file. the transcript of the proceedings, if any, and the docket entries in the following matter: SETH FITZGERALD ROBBINS ET AI. VS CUMB CO CHILDREN , YOUTH ET AI. 97-4669 405 CD 1999 The documents comprising the record have been numbered from No. 1 to No. 2..43 ,and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document. the number of pages comprising the document. The date on which the record has been t~ansmitled to the appellate court is 02-25-99 (Seal of Court) 4. ) 06) '1J flu), p<O<h~2" ,~ An additional copy of this certific6te is. e~~losed. Please flign and date copy, thereby t\cknowledging receipt of this record. RECORD RECEIVED: Date: ._-'-_..~- - ( signBturEC , \ ,~~'~ &;!,tit Ie) .' :1'1 --_._,-'--~---'--' .-\ (/ ,I;. \. ( , orland County Civil Caso ROBBINS Sf;TH FI'rZGERALD E'l' prothonotaf \ 1 Of fleo Inquiry AL (vs) CUMB CO CHILDREN & Page 1 PYS510 1997-04669 YOUTH SERV 8/28/19' 121 0/00/001 0/00/00' 405 CD 19' RlIferenee No,. I , Case Type, ,.,,1 WRIT OF SUMMONS JUd~ment'l'" ,I ,00 Jud e Ass gnedl OLER J WESLEY JR Dis osed Dosc, I --- ---- -- -- - Case Comments - - - -- - - - - -- -- Filed. . , . , , . . 1 Time......... : EllocUtlon Date Jury Trial" . , D1s~osed Date, Hig er Crt 1. I Hig er Crt 2, 1 ............................................................................. General Indell Attorney Info ROBBINS SETH FITZGERALD MINOR PLAINTIFF DRUBY RICHARD B ROBBINS ERIN PLAIN'rIFF DnUBY RICHARD B ROBBINS KERRY PLAINTIFF DRUBY RICHARD B CUMBERLAND COUNTY CHII,DREN AND DEFENDANT MARCELLO DOUGLAS B YOUTH SERVICES C/O GARY I SHUEY MISLITSKY RICHARD P 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 C~BERLAND COUNTY OF C 0 NANCY A BESCH CHAIRMAN C B CO COMM - CUMB CO CTHSE CARLISLE PA 17013 SHUEY GARY I CUMB CO CHILDREN & YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 RUPP DIANNE CUMB CO CHILDREN & YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 RUNYON CHRISTINA CUMB CO CHILDREN & YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 HOVERTER WENDY B CUMB CO CHILDREN & YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 11013 ORR DARLENE CUMB CO CHILDREN & YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 FITZGERALD SUSAN STATE CORRECTIONAL INST MUNCY POBOX 180 ROUTE 405 MUNCY PA 17756 Judgment Index ROBBINS SETH FITZGERALD MINOR ROBBINS ERIN ROBBINS KERRY DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT Y Amount Date 2/12/1999 2/12/1999 2/12/1999 Dese JUDGMENT ON ORDER JUDGMENT ON ORDER JUDGMENT ON ORDER ."........"......,......................,--,................."..."........ · Date Entries ..........,.........................."....................................... - - -- - - - - - - - - - FIRST ENTRY - - - - - - - - ., - - - - PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUEI --------------------.---------------------------------------------- SHERIFF'S RETURN FILED Litigant.: CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES SERVED : 9/03/97 WRIT OF SUMM Costs. .,,: $23.10 Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 ------------------------------------------------------------------ SHERIFF'S RETURN FILED -G 8/28/1997 9/04/1997 9/04/1997 . Reference No, ,t , ca~e Type.,.., t WRIT OF SUMMONS Ju gment '{' . . , t ,00 Ju e AS8 gnud: OLER J WESLEY JR Dis osed DeBc, t ------------ Caso Conunents ----------'.-- Litigant, t CUMBERLAND COUNTY OF SERVED : 9103/97 WRIT OF SUMM Costs,...: $B,OO Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 ----------------------------------------------------------------- 9/0411997 SHERIFF'S RETURN FILED Litigant.: SHUEY GARY I SERVED t 9/03/97 WRIT OF SUMM ~~~~~:::::_~~:~~-~~,-~~:_~~:~~~~-~!~~~~~~~-~~~~~~-~~~-~~~~~~!~~~- 9/04/1997 SHERIFF'S RETURN FILED Litigant.: RUPP DIANNE SERVED : 9/03/97 WRIT OF SUMM Costs",,: $8.00 Pd Byt METZGER WICKERSHAM KNAUSS ERB 09/04/1997 ----------------------------------..------------------------------ 9/04/1997 SHERIFF'S RETURN FILED Litigant.: RUNY9N CHRISTINA SERVED : 9/03 97 WRIT OF SlJMM ~~~~~:::::_~~:~~-~~-~~:_~~:~~~~-~!~~~~~~~-~~~~~~-~~~-~~~~~~!~~~- 12-13 9/0411997 SHERIFF'S RE'rURN FILED Litigant.: HOVERTER WENDY B SERVED : 9/03/97 WRIT OF SUMM ~~~~~:::::_~~:~~-~~-~~:_~~:~~~~-~!~~~~~~~-~~~~~~-~~~-~~~~~~!~~~-, 14-40 9/25/1997 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RUL~ 4009,22 --------------..--------------------------------------------------. .15-62 10/02/1997 CCC&YS AND ITS' EMPLOYEE'S GARY SHUEY DARLENE ORR DIANNE RUPP WENI HOVERTEH AND CHRISTINA RUNYON (NOW ROWLAND) MOTION TO 8UASH SUBPOENA OF ERIN AND KERRY ROBBINS PLAINTI~FS ON BEHAL OF THEMSELVES AND S F ROBBINS A MINOR FOR PRODUCTION OF CONFIDENTIAL CCC&YS DOCUMENTS AND RECORDS It_44 1010611997 RULE - TO - SHow - CAusE-: -DATED -10/2/97 -:.. IN - RE - MOTION -To-ouAsH-isSUAN( OF A SUBPOENA FOR PRODUCTION OF CONFIDENTIAL CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES DOCUMENTS A4D RECORDS - RULE IS ISSlJE[ UPON PLAINTIFF RETURNABLE AT HEARING 10 30/97 1:30 PM CR 5 - BY WESLEY OLER JR J - COPIES MAILED 10/7/9 -------..---------------------------------------------------------- ,9-73 10/10/1997 MOTION FOR PROTECTIVE ORDER UNDER PA RCP 4012(A) AND STAY OF SUBPOENA TO PRODUCT DOCUMENTS UNDER PA RCP 4013 ----------------------.-------------------------------------------- 1,3-68 10/15/1997 ORDER OF COURT - DATED 10/15/97 - IN RE MOTION FOR PROTECTIVE ORDER UNDER PA RCP 4012(A) AND STAY OF SUBPOENA TO PRODUCE DOCUMENTS UNDER PA RCP 4013 - RULE IS ISSUED UPON PLAINTIFFS RETURNABLE AT BEARING 10/30/97 1:30 PM CR 5 - BY J WESLEY OLER JR COPIES MAILED 10/15/97 ------------------------------------------------------------------ PRAECIPE FOR RULE TO FILE COMPLAINT BY RUBY D WEEKS ESQ ------------------------------------------------------------------ RULE TO FILE COMPLAINT BY LAWRENCE E WELKER PROTHONOTARY -----------------------------------..------------------------------ PLAINTIFFS' RESPONSE TO PENNSYLVNAIA DEPARTMENT OF PUBLIC WELFARE' MOTION FOR PROTECTIVE ORDER AND STAY ----------------------------..------.------------------------------- \-103 10/2711997 PLAINTIFFS' RESPONSE TO CUMBERLAND COUNTY CHILDREN AND YOUTH AND ~:~_~~~~~!~~~:_~~:!~~_:~_9~~~~_~~~~~~~~___________________________ :,: 04_10612102/1997 ORDER OF COURT - DATED 10130/97 - BY J WESLEY OLER JR ,} - COPIES MAILED 1213197 -----------------------------------------------..------------------ MOTION TO COMPEL PLAINTIFF TO FILE A COMPLAINT ------------------------------------------------------------------ CERTIFICATE OF SERVICE -------.-----.------------------------------------------------------ CERTIFICATE OF SERVICE ------------------------------------------------------------------ RULE UPON PLAINTIFF TO FILE A COMPLAINT - DATED 3/4/98 - IN RE PYS510 1997-04669 4 10/17/1997 10/17/1997 10/2711997 5-82 07-117 2I26/l998 I IB 2/261199B 19 212611998 , J 1.0-14B 3/04/1998 VI.,I , Pl1ge :l. orland County Civil Caso Prothonota,:, 1 Offico Inquiry AL (VB) CUMB CO CHILDREN & YOUTH SERV Filed., ".",t 8/2B/19 Time, '1" " " t 12 t Execut on Date 0/00/00 JUr~ Trial"" Dts oBed Date, 0/00/00 H 9 er Crt lot 405 CD 19 H 9 er Crt 2,: ROBB 1 NS SETH F'l'l'Zm:RAI.D E'l' 137-148 149-157 1 ~8-159 160-161 162-166 , 67-168 69-172 73-177 76-177 78-185 86-208 09-220 21-224 25-231 32-235 36-239 40-242 4] ". PYfi510 I'Ilmbor land count;y t'rotnonota ~Y' II VI I leo \lay... ", Civil Case Inquiry f"'~ 1997-04669 ROB1HNS S~;'l'lI nTZGFoRALD ET AL (VB) CUMI3 CO CHILDREN (, YOUTH SERV Reterenco No,. 1 , Filed"",." I 8/28/1 CaBo Typo.." ,I WRI'l' OF SUMMONS Time".,.", ,I 12 Judlment'l"" 1 .00 Execution Date 0/00/0 Jud e ABB gnodl OLER J WESLEY JR Jury Trial.,.. DiB aBed DOBe, 1 Disposed Date, 0/00/0 ____________ CaBO Comments -------------- IH~ller Crt 1.: 405 CD 1 Hi hor Crt 2, 1 MOTION TO COMPEL PLAINTIFF '1'0 FILE A COMPI,A NT - RULE IS ISSUED UPON PLAINTIFFS RETURNABLE WITHIN 30 DAYS OF THE DATE OF THIS OR BY J WESLEY OLER JR J -- COPIES MAILED 3/5/98 ---------------------------------------------------------------- 4/02/1998 COMPLAINT - CAUSE OF ACTION UNDER 42 U,S,C.1983 - BY RICHARD B. DRUBY, ESQ. --------------------.-------------------------------------------- PRELIMINARY OBJECTIONS OF DEFENDANTS ------------------------.---------------------------------------- PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFENDANTS BY DOUGLAS B MARCELLO ESQ ---------------------------------------------------------------- 5/22/1998 PRAECIPE FOR WITHDRAWAL OF APPEARANCE FOR DEFENDANTS BY RUBY 0 WEEKS ESQ ---------------------------------------------------------------- 6/01/1998 PLAINTIFFS' RESONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS OF DEFENDANTS OM____________________________________________________----------- 6/01/1998 PRAECIPE FOR LISTING CASE FOR ARGUMENT BY RICHARD B DRUBY ESQ DEFENDANTS' PRELIMINARY OBJECTIONS _______________________________________M______________---------- 6/01/1998 PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANT - SUSAN FITZGERAL BY DOUGLAS B MARCELLO BSQ ---------------------------------------------------------------- ENTRY OF APPEARANCE FOR ALL DEFENDANTS BY RICHARD P MISLITSKY ES ___________________________________________OM_________----------- SHERIFF'S RETURN FILED Litiqant, 1 FITZGERALD SUSAN SERVED 1 7/1/98 SCI AT MUNCY PA -- LYCOMING COUNTY ~~~~~:::::_~~~:~~-~~-~~:_:~~~~~~--:~~~~~-~-~~~~~-~:~~~~~~~~------ 9/21/1998 CERTIFICATE PREREQUISITE TO SERVICE OF A'SUBPOENA PURSUANT TO RU 4009,22 ---------------------------------------------------------------- 1/15/1999 OPINION AND ORDER OF COURT - DATED 1/15/99 - IN RE DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT - PRELIMINARY OBJECTIONS ARE SUSTAINED AND PLAINTIFFS' COMPLAINT IS DISMISSED, TO DEFENDANTS - BY J WESLEY OLER JR J - COPIES MAILED 1/19199 ---------------------------------------------------------------- 2/11/1999 ORDER - DATED 2/11/99 - IN RE MOTION FOR DETERMINATION OF FINALI' UNDER PA RAP 341(CI OR IN THE ALTERNATIVE MOTION TO CERTIFY INTERLOCUTORY ORDER FOR APPEAL - BY J WESLEY OLER JR J - NOTICE MAILED AND COPIES PERSONALLY GIVEN 2/11/99 ---------------------------------------------------------------- 2/12/1999 PRAECIPE FOR ENTRY OF JUDGMENT AND JUDGMENT ENTERED NO NOTICE MAILED ---------------------------------------------------------------- 2/12/1999 NOTICE OF APPEAL TO COMMONWEALTH COURT FROM ORDERS ENTERED 1/15/' AND 2/11/99 BY RICHARD B DRUBY ESQ ---------------------------------------------------------------- STATEMENT REGARDING RECORD OF PROCEEDING --------------------------.-------------------------------------- PROOF OF SERVICE ----------,------------------------------------------------------ COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING * 405 CD 199 5/20/1998 5/2211998 611211998 711011998 2112/1999 211211999 2118/1999 ." MISC. , "'1\. ~ ~ ~. "I ~~ fYJ I,:,; .,- ,'t. , , :\~ ,~\ ~ 11/' .. III :'1 ~) 1,:1," , , , B~ ^') ~) )1 I " ~. (11' ,'(, V) 'I' .., ~ \J ~ C"U " .':' ~ L I :: , 'II} '::: I' r "- " I.i. 't-'V) " ,... U I.J' d I ~ ~ ~ Vl~ ;:jl:> ~~ ~ ~GJ ~ ~:. U~j f:>E'i1 o ....UZ ~~6 ..: "1 ~ ~ ;.;~Ec:i ....UUZ - . . . VI ~~~~ S........ &l~'Slil "" l'I l'I i>' 1ilJi>' ~e~S .. " " = "d U ~ .. 0<: l'I l'IlJ ""l'I" .<: VIlli) .:l en ~ Z 'M aZ<:....~ ....l'I'" '" .. e ",~l'Jlilo N""" ~Z ~el,~ ~""l'I""~ el ." lol ii ~ ~~ '81=1 V) ,.Q ..c: 1\1 '1"4 Vl I U 0: rti ~ ~ .., g m ~ = nVl ~; ::c: = ~ ," ~ . 0 w, > :dlf SF- e ~ z lD ~ X ~ 0' · tI) i5 111I IX .' Il ~ t( ~ .... ~. - ~ ! ~ ~ j 1 ~ <II .... .... 'M IJ ,~ l'Il .-. ." :1 ~ 1] '... ~ "" ~ :.: ~ :3 = ....:;1 iJf;j ~ . 8~ ~i ~~ "" o Eo< .... ~ "" ~ ,., ." ~ '" , I> " " . . . ,'~' '. , . .,' "" I"~ I .".. to' ", ."" 1"'\ county of cumberland c/o Nancy A. Besch, Chairman cumberland County Commissioners cumberland County courthouse One Courthouse Square Carlisle, PA 17013 Gary i, Shuey, Agency Administrator Cumberland County Children and Youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 Dianne Rupp, Case Work Supervisor Cumberland County children and Youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 Christina Runyon, Case Worker Cumberland County Children and Youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 Wendy B. Hoverter, Program Director cumberland County Children and Youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 Darlene Orr, Program Director Cumberland County Children and Youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 METZGER, & ERB, P,C. Dated: f /,,(/97 Richard B, Dr Attorney I,D, P,O. Box 5300 Harrisburg, PA 1'7110-0300 (717) 238-8187 Attorneys for Plaintiffs Document , J22626 J. "......,\ "'"' right, have commenced an action, which you are required to , , defend. I cUMBeRLAND COUNTY PROTHONOTARY <-~t ~ tJeI6" ,ti,.7~ By +,~ ~ ,k;4 W Oatedl ,.a,. ;)f. 1tJt2 it4F.Tlb~lI?, W/ltl:12lI/N"', ~I\JI/I.m ' f/CtS ~\I .'~-1)!l , v...{)l~~ ~)...h.JIL-:' 1'~INA"I'I'i), (trl.- ~~ 0 "w,!f ,EJ~(U:."'t , . AttV{~Af II) it lJ I 10'1 po 1~l1V ~Huo "1.+ 1'1I'O./I~OV 1'\wVl~~. " Un) /.~H/H 'AHufMYS Fir Pl",-""h(fj ., , , , " Document M 122626 II 'I 'I mMlNWElWlll 01" PmNSYLVANJ4-.. ""\ CXXJNl'Y OF CUMIJmU\ND SETH FITZGERALD ROBBINS, ET AL., Plaintiffs v. Fila No. q 7 - 41D(P~ .R.A'v 1/ ft\wo- CIlKBERLAND COUNTY CHILDREN AND YOUTH SERVICES, ET AL., Defendants SlJBPOENA TO PIlOOI.n! DOO.JoI!NTS 0Il..Jli.l1m FOR DISOOVE'RY PUlSUAM:...~ TOI Records Custodian, North Middleton TowlIshlp "ollce, _ll}~rth Middlet~Road. (NlII1lO of Person or Entity) Cllrlisle, "A 17013 Within twenty (20) days after Ilervico of thlll subpoona, you lira ordll/"od by tho oourt to Pt'OdJce the following docunents or thlngsl See o~hed shl/lIt. -----------~- at P.o. Box 5300. 3211 North .'ront Street..J1eU.lJ!.b.!l.r.KJ..l~._J.lll'!}_QlQli, (AcXrOllIl ) You may deliver or mail leclble eople:! of tho docunonts or produce things requested b~ this subpoena, together with the certiflcatll of comllllllco. to the party making thh request at the address listed abovo. You hllvo the right to IIcflk In advance the reasonablE cost of preoarfng the copies or produCing tho things sought. If you fall to produce the docunents or thinOll required by thlro subpoena within twenty (20) days after Its Sll/"vke, the party sorvlng this aubpoena O\'ly seek a court order CXl'IlJelllng you to carply with It. -_. THIS SUlPOENA WAS ISSUED AT THE RE<u:sr OF Tl-E FOlLOoYrNQ PERSON: NAME I Richard B. Druby, Esquire ADDRESS: P.O. Box 5300~1 North Front Stroat HarrisburR, PA 17110~~____ TELEPHoNE: 717/238-8187 '_ SU'REJoE <Xll.-'lT 10., 61904 ATTORNEY FOR: Plaintiffs -- DATE: ~. ~ 1~?2_ S of the Court BY Tl-E ~Tl IsI ~..~__ .!!. uJ:.~ ProthonotarY/Clark, Olvll Division - ~Id ,e: ~~. fiR Deputy (Eff. 1/97) ~~ I I ,''''''''l Records Custodian North Middleton Township Police .. Produce the following documents or things I Complete copies of any and all records regar.ding Incident No. 95-002007 including, but not limited to, police reports, investigative notes, statements of witnesses, criminal complaints, affidavits of probable cause and records of criminal dispositions regarding the' death of Stephen Fitzgerald. , , I, , , ','I '-f' I' " .i 'j" , , 'I ,., , " , , , , ", ,I , ' ,'I', , .. " " " """-I: IZZMS ~.5 ., <noM:lNWJWIl11 or PnlNSYL~ ,\ 00UNl'Y 0... ClImmLI\ND SETH FITZGERALD ROBBINS, ET At., Plaintiffs v. File No. q'} -4.v1l ~ Clit; I r~ CllMBERLAND COUNTY CHILDREN AND YOUTlI SERVICES, ET At., Defendants SUBPOENA TO PR<XXX:E lXla.JoI;NTS ~oo~~~ FOR D I SOOIIERY PUlSUANT TO RULE 2 Records Custodian, Cumberland County District Attorney's Office TOI Cumberland County Courthouse. One Courthouse Square, Cerlisle , PA 17013 (NlII1lO of Person or Entity) Within twenty (20) days aft.er service of thlll subpoena, you are ordered by tho oourt to P/"OCilce the follOWing docunent.s or thlngsl See attached sheet. at P.O. Box 5300. 3211 North Front Street. Har~isburR. PA. 17110-0300. (Address) You may deliver or mal I legible copies of the docunents or produce things requestad b~ this subpoena, together with the certificate of oarpllllllCe, to the party making this request at the address listed above. You have the right to seek In advllllCe the reasonable ClOst of prO!Jarlng the copies or producing the things sought. I f you fail to produce the docunents or things rtlq<.l1i-ed by this subpoena within twenty (20) days after Its servke, the perty serving this subpoena may seek a court order oarpelling you to carply with it. THIS Sl.JllPOENA WAS ISSUED AT THE REGlLeST OF TliE FOUON1NCl PERSONI NAME I Richard B. Druby, Esquire ADDRESS I P,O. Box 5300~3211 North Fro~ Street Harrisburg, PA 17110~0 TELEPHONE I 717/238-8187 SU'REJot:: ClOlMT 10 II 61904 ATTORNEY FORI Plaintiffs OA TE : ~ -'~ /?f) of the Court BY TH: OOURT I /.f'/ ~.Ju__J /.'. ~ )~~ ProthonoterY/Olerk, Oivfl Olvieion . '-t~~ .I.-':~~ 9f Deputv I;!' .,'\/. /,1: ".1, (I". 11t') ,:l,.'.!;t " /I !,,,\~\tl ."" . -'~ t""'I Records Custodian Cumberland County Distriot Attorney's Office Produce the following documents or things I Complete copies of any and all records in the case of Commonwealth v. Susan Fitzgerald, Dooket No. 95-1943 innluding, but not limited to, police reports, investigative notes, statements of witnesses, criminal complaints, affidavits of probable cause and reoords of oriminal dispositions regarding the death of Stephen Fitzgerald and/or the abuse of the Fitzgerald children perpetrated by Susan Fitzgerald. " ' " , ' 1 ,! , , " ,I (t:' "- ,..U2MS 31 , , -. SETH FITZGERALD ROBBINS, a minor, by ERIN ROBBINS and KERRY ROBBINS, hie parents and natural guardians, I and ERIN ROBBINS and KERRY ROBBINS, I in their own right, I Plaintiffs I I I I I f I I v. CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES, the COUNTY OF CUMBERLAND, GARY !. SHUEY, Individually and in his Official Capacity as Agency Administrator for Cumberland County Children and Youth Services, DIANNE RUPP, Individually and in her Official Capacity as Case Work Supervisor for Cumberland County Children and Youth Services, CHRISTINA RUNYON, Individually and in her Official Capacity as Case Worker for Cumberland County Children and Youth Services, WENDY B. HOVERTER, I Individually and in her Official Capacity as Program Director of Cumberland County Children and Youth Services, and DARLENE ORR, IndividlJally and in her Official Capacity as Program Director for Cumberland County Children and Youth Services, Defendants ~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION . LAW JURY TRIAL DEMANDED NOTICE OF INTENT TO SERVE A SUBPOENA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 Plaintiffs intend to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from Doa~C " J22647 3Y <nKlNWEl\IIl11 01" P~VANIA" ... ~ 01" QJHBI;]UJ\.ND SETH FITZGERALD ROBBINS, Et' At., Plaintiffs v. Fllo No. q""I.f~/pq CIVil rUW) ClJMBERLAND COUNTY CHILDREN AND YOUTH SERVICES, ET AL., Defendants SUBPOENA TO Pfl(X)I.n; DOO.J.ENTS OR llf I ~ fOR D I SOOIII;~y PrnSUANT m_RVLE 4009. 22 '. TO: Department of Public Welfare, 309 Health & Welfare Building, Harrisburg, PA 17120 (Nll/lle of Person or Ent Ity) Within twenty (20) days after service of this sUbpoena, you are order-lid by the OClU"t to PI"OdJce the following c:1ocunents or things: See attached sheet. - at P.o. Box 5300, 3211 North Front Street. HarriaburR. PA, 17110-0300. (Address) You IMY deliver or mall legible copies of the docunents or produce things requestCKI b~ this subpoena, together with the certificate of CCITl> I illllCe, to the party making thh request at the address I isted above. You have the right to sook In advance the reasonablE cost of pre!larlng the COPies or producing the things sought. I f you fai I to produce the docunents or things required by this subpoena within twenty (20) days after Its service, the party serVing this subpoena may seek a court ordllf' OCITpell ing you to COTlJly with it. lli I S SU'lPOENA WAS I SSl.JEO AT THE RE<:llEST OF 'THE FOlLQI{ I N<3 PERSON: NAME:--B1chard B. Druby, Esquire AClORESS: P.O. Box 5300-,-J.'uLti2r.!;!LFront Street Harrisburg, PA 17110~0 TELEPHONE: 717/238-8187 SU>R&E <XUrr 10 It 61904 ATTORNEY FOR: Plaintiffs DATE: ~. .;tV'. /112 Sea of the Oourt BY Tl-E CXlURT: k/ ~H4u,"4 E'.. ~)4~ Prothonotary/c ll/"k, CfVI I Division ~;~ k>>~ f}.J' . Deputy (Eff. 7/97) .3~ - '';'';oJ -:-........- ~.~..~.r..~.~ ,'"' I" CERTIFICATE OF SERVICE AND NOW, this ~day of August, 1997, I, Richard B. Druby, Esquire, of Metzger, Wickersham, Knauss & Erb, P.C., attorneys for Plaintiffs, hereby certify that I served a copy of the within Notice of Intp.nt to Serve a Subpoena to Produce Documents and Things for Discovery Pursuant to Rule 4009.21 this day by depositing the same in the united States mail, certified mail, return receipt requested, postage prepaid, at Harrisburg, Pennsylvania, addressed to: cumberland County children and Youth Servioes c/o Gary I. Shuey suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 County of cumberland c/o Nancy A. Besch, Chairman Cumberland County commissioners Cumberland County Courthouse One Courthouse square Carlisle, PA 17013 Gary I. Shuey, Agency Administrator Cumberland County Children and Youth services. Suite 200, Human services Building 16 West High Street Carlisle, PA 17013 Dianne Rupp, Case Work Supervisor L~mberland County Children and Youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 Docuaent I, 1221., 3'1 ....."-.1 j" "\'>\-f"".;_'.1- ""'~-' , .......-...... .- IN nil' COURT OF COMMON PLE,\S CUMIlERLI\ND COUNTY, PENNSYL V,\N 1,\ CIVIL ,\cnON - L,\W JURY TRIAL DEMANDED ................-_.........~....... j'll 'I! 'J , , , v. CF TI0,.r9'!"'Tlifr . I,' .I' I' "IJrI!ll 91 SF'':' ':Ie; b', ~ oJ rrt ;?: n / CUI/e"", , 'F~)jt-:>"'rl.l?,,(: ~..'- ..I;',; 1)' .. "f/".",,\, SETH FlTZGERAl.ll ROIlIllNS, E1' AL., pla1.ntiffs I, CUMBERL,\ND COUNTY CHILDREN ,\ND YOUTH SERVICES, E1' AL., Defendants ................................... , , CERTIFlC,\TE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009.22 ................................... METZGER' WII:KERSHAM . KNAUSS Ii> ERB, P.C. ATTOIllNlYS AT lAw 3211 NOIllT~ F"ONT STIlIIET P. O. Box !lI300 HA"'llsau"o, PINNIVLVAN1A I? 110.0300 y. ,!J JJ '1 I' I\~} , , '~ ~~ " 'r ," 'I' , 1 , , , ., ':~. ) I , 1 , , 1 ,I , , I" ,., I , " /'''''' ~ COllles now.Cuml1erlund Cuunl)' Children und Youlh Services. und ii's employees. Oury Shuey. Durie II!; 01'1'. Dlulllle Rupp, Wendy Iloverter, und ('hrislinu Runyon (nuw Rolund). III their oflielul eupucllles, l1y und lhrough CUllll1erlund Cuunty Children und Y uulh Services' soliellur. Rul1y D. Weeks. Esq., ulld respeell'ully moves the Cuurl: I. On<).3.<)7.Cumberlul1ll Coullty Children und Youth Services und it's employ!;!;s. Oury Sbuey, Durlen!; 01'1'. Dlunne Rupp, Welldy (Ioverter. ulld Chrislinu RunyolI (now Rolund). were served u Writ of Summolls with u 1I0llce of inlelllto serve u sul1poellu Irollll'luinlill's. 2. Thes!; were lllrwurded tu lJSF & 0. the Coullty insul'llllce currier on <).<).<)7. 3. On <).30.<)7. lJSF & 0 ill limned CUllll1erlund County Children und Youth Services that becuuse no eompluint hud yet been tiled. their allorneys would not represellt Cumberland County Children and Youth Services yet in this muller and they would not respond to the notice und writ of summons, Cumberland County Children und Youth Services. therefore. is 1I0W respondin. but their attorney is entering an appearance IiII' the Iimiled purpose of objecting 10 discovery of Cumberland County Children and Youth Services' records. 4. Cumberland County Children and Youth Services' records arc confidential under the Juvenile Act, 42 Pa. C.S.A. 630 l.et seg. und the Child Abuse Act 23 I'a. C.S. A. 630 l.et seg. and Department of Public Welfare Regulations thereunder at 55 Pa. Code 3130.44 and 55 Pa. Code 3490.94. respectively. 5. Therefore. Cumberland Coullty Children ulld Youth Services objects to the blanket request by Plaintiffs for Cumberland County Children and Youth Services' tiles relative to Shawn. Seth. and Stephen F. us itemized below: a. I'nrngruph I of Pluintifl's Request IiII' Production of Documents requests a copy of any ~~ ....... ... f. I'llrllgl'llph II of Plulntll1s' Ih~,\ue~llilr Production of llocumcnt~ n:,\uc~t~ copie~ of uuy and ull documents ~uhmllled to the llepurtment of I'uhllc Wdlure hy Cumherlund County Children und Youth Servlce~ regurdlng the F. lhmlly und thc ~uspccled or uctuul nhuse thcreln. g. I'nrngruph 7 of Plulntll1's' Re,\uestlllr Production of llocuments rc,\uests copies of uny and 011 correspondence hctween Cumherlund County Children und Youth Services und the Depurtment of Puhlic Welfare regarding the F. lumlly and/or the suspected or uctuul uhuse therein. h. I'llrugruph 8 of Pluintil1s' Re,\uest/llr Production of Documcnts re,\uests copies of uny and 011 documents relating to any Internul investigution conducted by Cumberland County Children and Youth Services with regurd to the dealings it hud with the F. lumlly. i. I'llrugruph 9 of Pluintiffs' Request for Production of Documents requests copies of any and all documents received from or generated hy an investigation by the Department of Public Welfare into the Cumberland County Children and Youth Services' dealings with the F. /umily. j. I'arugrnph 10 of PllIintiffs' Request for Production of Documcnts requests copies of any and all medical records. reports. and treatment notes in your possession with respect to Shawn F., Jr., Seth F. Robbins, and Stephen F. k. I'arugrnph 11 of Plaintifls' Request/llr Production of Documents requests copies of any and all interagency documents including. but notlimiled 10. correspondence. memos. reports and summaries regarding Cumberland Counly Children and Youth Services' dealings with the F. family. I. I'arugrnph 12 of Plaintifls' Request lor Production of Documents requests copjes of any and all reports regarding the F. children received pursuant to 23 Pa. C.S.A. 6313. 41 ~ -- Ill. I'llrnl!l'IIph 13 of 1'IIIIntllli;' J{eque~llill' I'rlllluetlon of lloellmelll~ rcquests coplcs of uny und ull dueulllcnts received rcgurdlnl! Ihe F. chlldrcn pursuUlllto 23 I'u. C.S.A. C13l4. n. I'nrnl!ruph 14 of I'lulntllli;' J{equestliJr I'rlllluctlon of lloculllents rcquests copics of uny und nil doeumenls In your possession received frolllthc [)epurtmcntof Public Wcllurc pursuuntto 23 I'u. e.S.A. C1334 regurdlnl! eOlllpluints ofsuspccted child ubusc oflhc F. chlldrcn. o. I'urngruph 15 of I'luintil1's' Requestlilr I'roduclion of Documents requests copies of any und ull doeumcnts which include inlilrmation from the statewldc Ccntrul Rcgister as del1ncd in 23 Pa. C.S. A. 6336 with rcgllrd to the F. lumlly und/or thc suspected or ucluul ubusc therein. p. I'nrngruph 16 of PluintilTs' Rcquestlor Production of Documcnts rcqucsts copies of any and ull documents which rclutc. in uny wuy. to the disposition of suspected child abuse reports regarding the F. flllTllly. q. I'lIrugruph 17 of Plainlills' Request for Production of Documcnts requests copies of any and all inquiries by the Dcpartment of Public Wellure into the performance of the Cumberland County Children and Youth agcncy, including performancc audits. pursuant to 23 Pa. C.S.A. 6343. r. I'urugrnph 18 of Plaintiffs' Requcst fill' Production of Documents requests copies of any Ilnd all annual plans from 1990 through thc prcsent generatcd by Cumbcrland County Children and Youth and/or Cumbcrland ('ounty pursuant to 23 Pa. C.S.A. 6363. s. I'lIrllgruph 19 of Plaintiffs' Rcqucst fin Production of Documents rcquests copies of any and all documents gcnerated by uny multi-disciplinary teams providcd information regarding the Ii. family. Those documents should include. but not bc IImitcd to. any and all information given to the 49 ~ ,.... lncludinl!, but not limited to. ull rcports und interviews tuken hy Ihe uhow.listcd indlviduuls Wllh rcspcet to the F. lumBy und/or the suspccted or uctuul uhuse therein. y. 1'1Irngrnph 2S of l'luintlll:~' Rcqucstl'Jr Prmluctlonof Dllcunll:llts requesls copies of ull munuuls. eduelllionnHllerillls und wrlllen Instruclions used Illr the lmlnlnl! of employccs of Cumberlund County Children und Ylluth Scrviccs Including cuse workers. supervisllrs. und othcr personnellrom 1990 throul!h lhc prcsent. 7.. I'urngrnph 26 of Pluintill's' Request "Ir Produclionof Documents requests copies of all lellers. memorunda or lither doculllenlutilln reluting III stute lIdministrutiw llr other gowmmental review of any relevant issue regarding Cumberlund County Childrcnund Y omh Services' hundling of the investigation of suspected and/or actual child ubuse in the F. Ilullily. an. Purngrnph 27 of Pluintill's' Request lor Produclion of Documents requests copies of all documents and reports supplied tOllr by Ull expert whom you huve cOllsulted either in this mailer or in the handling of the investigationllfsuspecled or actual child ubuse in the F.lumily. bb. 1'1IrHgruph 28 ofPlaintifl's' Request lor Production of Documents requests, ifnot already supplied, copies of any and ull documents consulted in answering this Request for Production of Documents. cc. l'urHgruph 29 of Plail1lin:~' Requestlllr Production of Documents requests if uny of the documents or things requested ahow haw not been produccd bccause of a claim of privilege. pleuse specifically identify that document and/or thing und identify the privilege you arc asserting in reference to that document or thing. .5/ ~ ~ 6. Plaintill\!. with the exception of the Juvcnlle, were not parties tolhe Juvcnile mailer and huvc no stwldingto obtain sueh records. 7. Cumberland County Children and Youth Servlccs would nottum ovcr any of the requested infimnation without an Ordcr of ('ourt directing Cumberland ('ounty Children and Youth Serviccs to do so. 8. Evcn if an Order of COlll.t wcre receivcd. uny data which would reveal the identity of any person referring a case of suspect cd child ubuse or the idcntity of any pcrson cooperating with a subsequcnt CPS investigation. or the idcntity of any person signing a CY-47. Report of Suspected Child Abuse. 9. Release ofslllnc other sections of the tilcs would violatc the privacy of certain individuals who are not principals of the outstanding Civil action bclilre the Court. 10. In instances wherc a CY.48 - Child Protective Serviccs hwcstigation Report - has been cntered into the ChildLine and Abuse Rcgistry. the CPS law precludcs thc Agency from releasing any copy of the CY -( 04 - Report of Suspectcd Child Abusc to Law Enfilrccmcnt Official. to any subject of the report. 11. A wrongful disclosure will subject Cumberland County Childrcn and Youth Services and its employees to possible criminal misdemeanor penalties. 12. Cumberland County Children Ilnd Youth Scrviccs cannot cven bcginto asccrtain what specific information is sought by Plaintifl's since no complaint h'IS bccn tiled and Cumberland County Children and Youth Services requcsts this Court direct Plaintiffs to filc a complaint in this moiler in order for Cumberland County Children and Youth Serviccs to detennine whethcr or not there is infonnation Cumberland County Children and Youth Serviccs might be able to furnish Plaintifl\!. .5~ ~ ~ AFFII)A VIT I, Olll')' I, ShUll)', being swum Ul:curding lu low, dllpUKIl and KII)' Ihollhll liu:ts contulnlld in Ihl! olluched Rllsponseure lrull ond com:cl hosed upunpersorol knowledge. , Agenc)' Admi Count)' Children SWOIll and Subscribed belorll me Ihlll ,~J,I . do)' of t1:::o.l~ 1997. ,.~/ ' . -- (";J " _~._ ~'~'''L L'. A)~Nd~ \.. Notury Public LPtJBlIC COUNI\ ~A NOYrMBr~ 1\ 1m ", " I , I. , ' :1~ II ',.1 1 , ", I " ,'I , i ,.e' , \;\ I,') ," ',., , , IN TilE COllIlT OF COMMON l'tFAS CUMIlERLANJ> COUNTY, I'FNNSYl.V ANIA SETII FITZUEl\Al.Il IUlIIIIINS, "f111110r, by I;RIN IllllllllNS wid "l'llltY IllllllllNS. hi. pllltnl5 and n"turul gu",dl"n" and ERIN IlOllIllNS wid "F,lmy ROIIIllNS, In thol, own ,Ighl. f~ll I) ')'1" :"'I~ ... '. \ Ill.. Or: :I r ',l,',,'W;UQTNW , en nCT .2 P (I, II n I , CUM"'I':i.::i 1..()I~rlf.1 ' , PJI'\I"I:i'il Yi'!' IV" " " , l'I"lnlll1. y, CUMDERLAND COUNTY C1I1I.1lRFN AND YOUTIl SERVICES. th. COUNTY OF CUMDERLAND COUNTY, ClAltY I SIIUEY, IndlYldwlll) WId In hi, Olllell.1 CapKIt) us Ag.ney Adflllnblnllo' for CUfllbcrl""d COllllly Childr.1I ""d Yowh Servlc.s, DIANNE IlUI'I'. Indlvldu"lI) "nd III h., Olllel"1 Cllpae'l) lIS Co,. Work Sop.rvlso, for CUfllberl""d COUII1Y Chlld,clI "lid Youth S...lccs, ClII\lSTlNA I\UNYON. Individually and In II<' Olllcl"1 CepKlt) os Cos. Work., tor Cumbe,land Coullly Chlld,," WId Youm Servl<<5. WENDY II. 1I0VEllTER. Individually and In he, Olllcl,J Cepoclty os P,og,am Dl,eelo, of Cumberland County Chlld"n and Yl/uth Se,vle.,. DARLENE ORR. Individually and In her Olllelal Cepoclty as P,og,am Dlreclor for 'Cumberland Counly Chlldr.n and Youm S.rvlc.s. , I, ;1 Ii' 1 , 1 " ,I " 1 I I' " I, 'I 'I Defendanl' , ) CIVIL ACTION. LA W 97.4669 CIVIL TERM " , JURY TRIAL DEMANDED ~YS AND I1'S EMPLOY~ES. GARY SHUEY. DARLENE ORR. DIANNE RUI'P. WENDY HOVERTER. AND CHRISTINA RUNYONINOW ROl.AND) MOTION TO OUASH SUDPOENA OF ERIN AND KERRY RODDINS. Pl.AINTIFFS ON DEHALF OF THEMSELVES AND S, F, ROIlDINS. A MINOR FOR PRODUCTION OF CONFIDENTIAL CCC& YS DOCUMENTS AND RECORDS :1,,] \ 1 , I' I: Ruby D. Weeks. Esq., Solicitor Cumberland County Children & Youth Services , 1 -, ~ , " SETH FITZGERALD ROBBINS, a minor, by ERIN ROBBINS and KERRY ROBBINS, his parents and natural guardians, and ERIN ROBBINS and KERRY ROBBINS, in their own right, PlaintiffB 1 N 'l'UE COUR'I' OF CONNON PLEAS OF CUMBERLAND COUN'I'Y, PENNSYLVANIA v. CIVIL ACTION - LAW CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES, the COUNTY OF CUMBERLAND, GARY I. SHUEY, Individually and in his Official Capacity as Agency Administrator for Cumberland County Children I and Youth Services, DIANNE I RUPP, Individually and in I her Official Capacity as I Case Work Supervisor for I Cumberland County Children I and Youth Services, I CHRISTINA RUNYON, I Individually and in her I Official Capacity as Case I Worker for Cumberland County I Children and Youth Services, I WENDY B. HOVERTER, I Individually and in her I Official Capacity as Program I Director of Cumberland County I children and Youth Services, I and DARLENE ORR, I Individually and in her I Official Capacity as Program I Director for Cumberland I County Children and Youth I Services, I Defendants I " r;1 \/1 ,') , , " ") ",1 , J ') I " 'I , I I!; iJ .. NO. 97-4669 CIVIL TERM ORDER OF COURT AND NOW, this ISH. day of October, 1997, upon consideration' of the Department of Public Welfare's Motion for Protective brder, a Rule is hereby issued upon the Plain'tiffs to show cause why the relief requested should not be granted. jp3 ",~ Child Prot\~ctive Scrvlccs I.tIW. 21 Pu.C.S. ** 6301 ~. und to which pluintiffis not cntitlcd undcr uny cxccptlonllstcd thcrein. spceilicnlly: (u) copics orrccords und rcplll'ts, including thosc in thc StLllcwidc ccntrul rcglstcr. In which thc child victim is not plulntlff Scth Fivgcruld Robhins; (b) pcrlill'llluncc cvuluullons ortbc Cumbcrlund County Chlldrcn und Youth Agcncy llI' uny llthcr recllrds rclntlnl1- to thc dcuth of Stcphcn Filzgcrnld. 2. Thut this Cllurlllrdcr n sluy lln plnintilrs Subpocnu to Prllducc Documcnts pcndlng displlsltlllnof this Illotion. IN Slll'l'OIH OF TillS MOTION, TilE HH.l.OWIN(; ImASONS Aim ASSIWI/EI): \. Thc Child I'mlective Scrvlccs 1.aw (CI'SI.) providcs Ihat. suhjcct to ccrtuin cxccptions. ail rccl1l'ds cOlllpiled pursuant to Ihc CI'SI. arc confidcntial. 23 Pa,C.S. * 6339. Any Dcpurtlllenl of Public Wcllilrc llr Cllllllty children and Ylluth agency clllploycc whll willfully violutcs uny provisillnllf Ihc CPSI. Ill' its rcgulatillns is subjcct tll disciplinary uction including dismissal. 55 Pa.Clldc * 3490.10 I. Any pcrSlln who willfully relcascs l1I' pcrmlts thc rcleusc of confidcntiallnfill'J1Jation tll anunaulhllrizcd party is guilty of a third dcgrcc misdcmcunor. 23 l'a.eS. * 6349(b). 55l'a.Code * 3490.102. 2. Thc exceptions tolhe CI'SI.'s confidentialily provisillll arc listcd at 23 I'u.es. * 6340 und 55 l'a.Code * 34'10.9\. and specify Ihc parties tll whom child abuse rcports Illay bc rclcuscd. 23 Pa.C.S. * 6340(b) and 55l'a,Code * 3490.91(a)(\2) provide that subjccts ofrcports I11UY rcceive. upon wrltlen rcqucst. copies of inlilJ'l1Jation contained in thc Stalcwidc central rcgistcr and of rcports of suspectcd child abuse under 21l'a,C.S. * 6313. 3. A subjcct of a rcpl1l't includcs. illler alia. the child victim. a parent. guardian or othcr person rcsponsible fi)r Ihe wellltn: of the child nal11ed inlhc report. and thc actual or alleged perpctrator. 23 l'a.C.S. * 6303. 55 l'a.Codc * 3490.4. All rCl:Ords in thc Dcpartlllcnt's possession available 10 plaintiff Scth Fitzgcrald Robbins as a subjcctofthc rcport have becn or will soon be providcd to plaintilrs counscl. Olhcr rccords and rcports which would be available to subjects of those rcports rClllain confidcntial as 10 plaintiff. All olhcr d,Jcul11cnts rcquested by plaintlffrcl11aln confidcntialundcr thc ('PSI.. 4. Courts in this COl11lllonwca!th havc agreed that il is impropcr to violatc a statutory confidentiality provisilln by complying with a valid subpocna without pmpcr consent or suhscqucnt to a court ordcr.1 S..... ".g, Rl1!i~of I'sycholo~y. 659 A.2d 626 IThc epSL and its rcgulations allow thc releasc of confidcntial information to a court of cOl11petcntjurisdiction pursuant to a court ordcr. 23 l'a.C.S. * 6340(a)(5). 55 l'a.Code 2 70 ;a.. ,-. CJill'IU'ICATE 01' SJo:RVln: I hcrcby ccrtily lhlllI llln Ihls duy servin!!. lhl) liwgoing Mlllhlll rllr 11rllll1Cllvl1 Ordl1r Ilnd SIll)' Ilnd Ilrlll1cllll1l1r AIIIIl1l1rllncc. uponlhl) purlll)s inlhis cusc hy muilingu lruc IlIld corNct copy to cilhl)r lhl) purlll)s dirl)ctly. or ll.llhcir counsl)lol'rcconl utlhl) uddrl)ssl)s shown below by Ilrst c1usslllull. poslugl) prcJluid: CUlllbl)rlund Counly l'hildrl)n ullll Youlh Scr\'ic~s c/o Oury I. Shucy Suitc 200, lIumun Scrl'icl)s Building 16 Wcsllligh Strcl)l Curlisll), I' A 171 OJ Oury I. Shul)Y. Agl)ncy Adlllinistrutor Cumberlund County Childrcn und Youth Services Suitc 200, lIumun Services Building 16 West High Streel Carlisle, PA 17103 Christinu Runyon, Case Worker Cumberland County Childrcn and Youlh Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17103 Darlene Orr. Program Director Cumberlund County Children and Youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17103 date: roJ '&Iq 7 County llf Cumberlund c/o Nuncy A. liesch, Chuinnun Cumbl)rlund ('<lUnty Commlssioncrs Cumberlund Counly Courthousc One Courthousc Sljuure Curllsle. PA 17103 Diane RUJlp. Cusc Work Supervisor Cumberland Counly Children and Youth Services Suite 200. lIuman Services Building 16 West lIigh Street Carllsll).I'A 17103 Wendy B. 1I0vcrter, Progrum Director Cumberlund County Children and Youth Services Suite 200. Human Services Building 16 West High Street Carlisle. PA 17103 Richard B. Druby. Esq. Metzger, Wickersham, Knauss & Erb, P.C. 3211 North Fronl Slreet P.O. Box 5300 . Han'isburg. P A 17110-0300 Attorney for plaintill's ly~fI;~~ Daniel Fellin, Assistanl Counsel Department of Public Welfare Office of Legal Counsel Room 305. Health and Wellitre Building Harrisburg. P A 17105.2675 Supreme Court 10 # 76621 phone: (717) 783.2800 .. 77... ,', I, , .' ,~ I I, ,I , , , ! " , 1"1 ,I , , " ","1 , , I, '" ,1 'j , " ,) , , '1,1 " , ' " " , I, " , II, ,1\', " , , " i' , Q ~ ...) .'ll " !~" "1 "1'.;; ~',) ~ I, rl r: ' .1' '.ijll,-' ..I. I ""11 " r' , l;':l i \'S~l " . ",) ',1 . .. ~'j' I:.) I ,\-' ~'I C'J "";'\1 '.,,) .. r,-.t I ~-h ~n ~ , ,,< In ;1 , " It)I' I' " I, I' " " " , i, , , jd , I I , " " "..... \ I' ., I " ,,'I " " " . ("'. " , " I. , , ',I I \ , I 0 1.0 n " , " ' Lj;; ..., -11 i:fJf;) , (::) , ! .' .;-) ::\'\1 ;...t " ' " (. " ~t'" ,1'-" '''-, ,,'~ ('J 1,'- 1::1 I J , , l:':'~ _,lr,'1 ,." ,.',] .: " ,,' 1 I;' . ,:...) . ~ I' \ !_:.; ~., 1.(" :.11 ~q '-1 rn t-....' .... " , ') " ',I ," " " ; , I, ',-", , ' I, , . , , ,,..., " j\ 'I , , ,I , , ,,' 'I !,r , I " , I " , , I , " ., Ii /' , 'I I " ,.-.. " I ~ " ,',J It I, I, r.) ,~~ n i ~:.; _I II I ~~ ',1 ''\'.1 k , v'' n I.1;J , " " I .,,; , ., '.__,1 , j_ .~J , ~ I ')--j (l ., , I '. ) -.; I , I [I ., .. :~'.~ ":i, :;;) ::.! ....-'. I .J ~.:. , , 'I Exhibit A """ ~ " , ' ',II I' 'I , , ii, I ,I , ' I , , , 71 -. "...., cntor:lNWFAI/l1l or PENNSYLV1\NIJ\ 00UNl'lI 01> aJMBI!RU\ND SETII FITZGERALD ROBBINS, ET AI.., PlaLntiffs v. File No. q r'I./~/p(1 ('V,! (U'11 CIlKBERLAND COI1NTY CHILDREN AND YOUTH SERVICES, ET AL., Defendanta SUBPOENA TO PIlOOI.n! DOO..M:trrs a.:oo~~~ FOR DISOOVERY PUlSlJANT T() RULE 2 T()r Department of Public Welfare, 309 Health & Welfare Building, Harrisburg, PA 17120 (NIIlllI of Person or Entity) Within twenty (20) days after service of this lIubpoena, you are ordered by the COl.rt to Pt'OdJce the following docunents or thlngsr See attsched Sheet. at P.O.-1Lox 5300. 3211 North Front Street. HarrieburR. PA. 17110-0300. (Address) You may deliver or mall legible copies of the docunents or produce things requestod b~ this subpoena, together with the certificate of oc:rrplle.nce, to the party making thh request at the addt'ess 11:Jted above. You have the right to seek In adve.nce the reasonable cost of preparing the copies or producing the things sought. I f you fall to produce the docunenls or things required by this subpoena within twenty (20) days after its serv~ce, the party serving this subpoena may seek a court order oc:rrpe 111 ng you to oc:rrp I y with it. THIS SUllPOENA WAS ISSUED AT THE REau::ST OF M FOLLOoYINCl PERSONr HAMEl Richard B. Druby, Esquire AOORESS: P.O. Box 5300JL-321L-North Front Street Harr1sbur~, PA 17110~0 TELEPHONE: 717/238-8187 SUPREME COURT 10 " 61904 ATTORNEY FOR: Plaintiffs --- DATE:~. ,':lV'. /ff2 Sea of the Oou,'t BY TI-E <:x:ulT: /5/ ~~ f. h)4~ ProthonotarY/Clerk, Clvl I Division ~;- K'.>>A, '}J' . " Deputy (Err. 1/97) 79 -. ,.... . 3, Aner reusolluble Inwsti~utlon. Plulntill's ure withl)ul kUllwledge or inlormution sul1lclent to to I'm u belief liS to the trulh of Ihese uwnnents. und they ure Iherefore denied. 4, Inclusion ofluw, to whieh no unswer is reljulred. If un unswer is reljuired, the alle~utlons.lIs stuted, ure denied since Ihe conlidentlulity provisions lire not llbsolute. 5. U." cc. No respllnse Is rCljuired us the Reljuest for Production issued to Defendants speuks 1'(11' Itself. In further unswer, the records reljuested were not pursuant to u subpoena but pursuunt to a Reljuest for Production of Documents. Accordingly, Defendant's Motion to Quush u Subpoenu is inapproprlute since no subpoenu was serwd upon them. For the Court's consideration. a copy of the Reljuest lor Produclion of Documents is attuched hereto as Exhibit "A". 6. Denied. Since the minor PllIintiff was a party to inwsti~ations conducted by Cumberland County Children und Youth. he is entitled to the records as a "subject" of the report as defined lit 23 Pa. C.S.A. S6303. Additionally. to the extent that the other Plaintiffs were "named" in a report made to the Depurtment of Public Welfare or a county agency under the Child Protective Services Law. they ure also entitled 10 those records. Finally. among other i I I i ! .1 I I I I i , exceptions to the confidentiality provisions, the parties may obtuinthe documents requested pursuant to a Court Order. 7. Aller reasonable investigation. Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments. and they are therefore denied. incomplete. , 'III , ',I, ,II l. I ,,{,'/H ,.I'J\\ ,]/'!~~ .'il,./{/J i "I,~ff, "le"l\~ ':':"t, ::I;:?~;;~iJ 'j~,\~t, ;,\f)1!' ili'I}~~ I" 'n!, , ;]N ',r'~t ':,j" , I"i:"t 8, No r.nswer is required as the allegations of paragraph number 8 are vague and , , Document _125118 ~I ...... t"I 9. Conchl610n of law. to which no an6wcr 16 rcqulrcd. If an an6wer 16 rcqulred. the allcllation6 are 6pccil1cally dcnled. 10. Conclu610n oflaw, to which no answcr Is rcquircd. II. Conclusion of law. to which no answcr is rcqulrcd. 12. Dcnlcd. Thc spcclfic Information rcquestcd is set out, In detail. in the Requc6t for Production of Doeulllents. The Rcqucst ti.Jr Production of Documcnts was issued. in part. to obtain Information in aid of pica ding. Sincc the minor PlaintilTwas not quite 4 ycars old at the time of his dealings with Cumberland County Childrcn and Youth. a large part of the information regarding the dealings between the parties is containcd in Cumberland County Children and Youth records. Accordingly. before Plaintiffs arc directed to tile a Complaint. the information requested should be produced. WHEREFORE. Plaintiffs rcspectfully rcquestthat Dcfendant's Motion to "Quash the Subpoena" be dcnied and all Order issued requiring Defendants to produce the documents requested. Further. Plaintiffs respectfully request that an Ordcr be issued that no Complaint need be filed until a reasonable time after the receipt of the requested documents. Respectfully submittcd. , (0 '~447 Richard B. Druby. L Attorney J.D. No. 61904 P.O. Box 5300 Harrisburg. I' A 17110-0300 (717) 238-8187 Attorneys for Plaintiffs Dated: Documl!nt 11125318 1.5 Exhibit A ~ ,-.. " J, Ilf II " ',I .1; I, " I " i' I , 'I' I, i'l " , , , I 'I , , " , " I, ~~ .-. ~ TOt county of Cumberland C~mberland county Courthouse One courthouse Square Carlisle, PA 17013 TOt Gary I, Shuey, Agency Administrator cumberland county children and Youth services suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 TOI Dianne Rupp, Case work supervisor CI~mberland county Children and Youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 TOI Christina Runyon, Case Worker Cumberland county Children and youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 TOI Wendy B. Hoverter, Program Director Cumberland County Children and Youth Suite 200, Human Services Building 16 West High Street Carlisle, PA 17013 ,I, Services , , TO: Darlene Orr, Program Director Cumberland County Children and Youth Suite 200, Human Services Building' 16 West High Street Carlisle, PA 17013 I , , Services , , Pursuant to Pa. Rule of Civil procadure 4009.11, you are \ hereby requested to produce for inspection and copying at the ,I - 2. - ., .. , Document It 122651 3~ """'I ~ 27. copies of all documents and reports supplied to or by an expert whom you have consulted either in this matter or in the handling of the investigation of suspected or actual child abuse in the Fitzgerald family. 28. If not already supplied, copies of any and all documents consulted in answering this Request for Production of Documents. 29. If any of the ,documents or things requested above have not been produced because of a claim of privilege, please . specifically identify that document and/or thing and identify' the privilege you are asserting in reference to that document or thing. -14- Document Nt 122651 (60 I I ";1 "1 I, I, " I, jl ,I I, " I' ,I I , I ", , , ,I " " I I /1 ,I I ,I' , , " " ,;1 ,It ,~) ,ru . 'i) I' , , j " '." jl . 1 1/; , 'J) 'i ~, , '. 'I ) ) I " " ..I '. ,,,,,,", ~ Employee'e, Gery Shuey, Darlene orr, Dianne RUpp, Wendy Hoverter, and Chriatiena Runyon (Now Roland) Motion To Quash Subpoena of Erin and Kerry Robbins, Plaintiffs on Behalf of Themselves and S.F. Robbins, a Minor, for Production of confidential CCC'YB Documents and Records, and upon considoration of a motion filed on behalf of the Pennsylvania Department of public Welfare entitled Motion for Productive Order under Pa. R.C.P. 4012(a) and stay of Subpoena To Produce Documents under Pa. R.C.P. 4013, and fOllowing a discovery conference in the chambers of the undersigned judge in which the aforesaid Defendants in the capacities named were represented by Ruby D. Weeks, Esquire, the Pennsylvania Department of Public Welfare was represented by Myra S~cks, Esquire, and Plaintlffs were represented by Richard B. Druby, Esquire, it is ORDERED and DIREC'rED as follows: 1. With respect to the motion filed on behalf of the aforesaid Defendants, the motion is granted to the extent that Cumberland County Children and Youth Services shall be required to furnish, within 30 days of today's date, only the information which it is required to release under 23 Pa, C.S. section 6340(b); provided, that the term "subject of a report" in this context is to be understood as Seth Fitzgerald Robbins, and that Plaintiffs shall pay the customary cost.s charged by the Agency in providing such information. 2. The motion filed on behalf of the /0 :5 vi .....~ . o Vl ~~~. t'.~ ~ I ~ s .~ gj ~ Vl J O'O~ o 0 ,Vi"~ O. >- 1'" . ~ "~Iii~ Vl ~';. hl~H~.i~ S ~>-l~ ~ z ~ ~~ ~ ~ l~ " -5>-OIU >>~~ ~ 1i50] I ~~~~~~~~]~ >>!ffiu:t5 ~ 0"'" 0 ... 0 00 ~ o ;> g.'" a ~ ~ Vl ~ ~ 1 J: ~ u ~ uu o 1'0 ~~~ ~ ~~ ~, u~~:ele ~1!U~ .co ,.J ~ ,5 ~ ~ u 'e ~ 0 .5 ~ I Ii ~ e ff~: !3'~ Vi" ] .E ~ l~ ] is ~ffi~ z 0-. ~~]~'l: 0 ~ ~~:!l~~ ;l;:)~.e-'O~ ~~iU ".i:>! 8 ~ ~ :> w~ ~-( .-g~ ~~ ~~Vl .... ~8 ffi !i ~ 0 g: ~ ~ffi~ ~~ ~ i~:etJl ~ ~]~~J: ~ ~ .- ~~~ - ~'O ttl-!I3'" ~Ol:SU ~ ere Vl~:e .5 < 0 .5 -( 0 o..s.s :I: 0 u ,5 ~ u , " i " " I' .' " , ", , I: . . . . . . , ~ v "",,:' HI, :,I, ti 1998 ~'" ,-. Employee's, Gary Shuey, Darlene orr/ Dianne RUPP, Wendy lIoverter / and christiana Runyon (Now Roland) Motion To Quash Subpoena of F.rin and Kerry Robbins, Plaintiffs on Behalf of Themselves and S.F. Robbins, a Minor, for Production of Confidential CCC&YS Documents and Records, and upon consideration of a motion filed on behalf of the Pennsylvania Department of Public Welfare entitled Motion for Productive Order under Pa. R.C.p. 4012(11) ond stay of subpol!l1o To Prodj.1pe Documents under Pa, R.C.p. 4013, and following a discovery conference in the chambers of the undersigned jUdge in which the aforesoid Defendants in the capocities nomed were represented by RUby D. Weeks, Esquire, the Pennsylvania Department of Public Welfare was represented by Myro Sacks, F.squire, and Plaintiffs were represented by Richard B. Druby, Esquire, it is ORDERED and DIRECTED as follows: 1. With respect to tho motion filed on behalf of ~he aforesaid Defendants. the motion is granted to the extent that Cumberland County Children and Youth services shall be required to furnish, within 30 days of today's date, only the information which it is required to release under 23 Pa. C.S. Section 6340(b); providod, that the term "subject of a report" in this context is to be understood as Seth Fitzgerald Robbins, and that Plaintiffs shall pay the customary costs charged by the Agency in providing such information. 2. The motion filed on behalf of the III ,,~ ,-.. CCC&YS I)ollcies: Emcrgcncy Standby Duty Runaways Guidcllncs lor Handling Child Abusc Rcferrals TlIklng II Child into Protcctive Custody Ilclprul Hints Guidclincs Illr I land ling Emcrgcncy Rcferrals Cicncral Rcferrals Emcrgcncy Sheltcr Placcmcnt Instructions Dctcntion Plarcmcnt Risk Asscssmcnt PllIccmcnt Protccti vc Services Intake 1997-98 Budgct & Implcmcntation Plnn 1995-97 Budgct & Implcmcntation Plnn 1994-96 Budget & Implemcntation Plnn 1992-93 Needs BlIscd Budgct & AnnullI Plllll 1991-93 AnnUllI PllIn 1990-93 AnnullI Plnn & Budget Estimllt~ 7-1-90 to 9-30-97 Quarterly PllIcement Reports. CY-28 PA Child Welfare Orientation, Training, & Resource MlIIlual . 1995 Court Documents - Robbins ct. al. v. Cr:C&YS et. al. PA Child Welfare Competency Based Training & Certification Program Workshop Directory - 198 double-sided pages Supervisors Mnnual- Vol. 11 PA Child Welfare Orientation. Training, and Resource Manual (1995-96) Caseworker & Supcrvisor Discussion Guide & Handouts - 161 double-sided pages BLANK PAGES IN EXPUNGED FITZGERALD FILE (Due to confidential material not required to be disclosed as involving other people or statutorily protected IIIld not covered in Court Order of 10-31-97). S/S = 8ingle Sided D/S = Double Sided 2 S/S 1 DIS ISIS 6 D/S I D/S 4 D/S 3 DIS 140 S/S 1 D/S 9 S/S 2 DIS 177S/S ISIS 1 D/S 256 S/S 2 D/S ISIS 2 D/S I DIS 12 S/S 4 D/S 1 S/S 4 D/S ISIS ISIS 1 D/S 4S/S 16 D/S 1 S/S I DIS 2D/S 34 S/S 4D/8 2 S/S 18 D/S 195 S/S ISIS I DIS 33 S/S 2D/S 2 S/S I D/S I DIS 40 S/g I DIS ISIS 4 D/S 83 S/S ISIS 1 Dig 16 S/S 2 D/S 44 S/S 4 S/S 2 DIS 16 S/S 10 DID ISIS 1 D/S I D/S 13 5 S/S I D/S 68 g/S 18 D/S 26 S/S 1/4 1'1 I' I, 1"1 , , , 'I ',' I, I, I 01,1 P ,n <J I .". O~ , ,f'. I , "'ir: ~a " t.Jll1 " Ilo'q :",'1,/ ,..., . I!i 'fl' C;i'o ;;-,~ I. : ll.. : ~! ,1;':['1 ;, '-rl ''- ie, I ,~_.. , ,......)' ,I:' ...,' !.: ~ 'I'n .. ,J .. ...., I , "f ~L.t "f., h... -.. I ,I 'I " , " ,I I, " " " , , I' " " , I , , " , " " I~-" , " " I ,! " , " ,I iiol I I.f,' i"i')' " .' .. ~ ~ " ',I /\ " . . ,;...., 1"" . " t " , , ;1 (" \,.., ") , , I I.~; (....) dlt r. .'1' , , , " "".-'"1 I I",. , \') I i I) I , i1 '. ,J) '" I ,." j' ~ .. \ 1-' ,1'1 ,;'-':,: .. "l ;...) '.. h, ~\J 'I ,~ol~ ....I .','" " " ,1 'I ,I 1" '" "-\' " " ,j d , " , , I " ,.- ;,;",=~':o.e..,..... -. -___.... ("'-" 'r .' - . 2. Delimdul1l, CUllIberlul1d COUl1t)' Childrel1 ul1d YUlllh ServiceH, (hercinuHer , "Children & Youth") iH UII ugel1cy orlhe COUllty orCumberlulld with U prillclpul pluee of bu~illeHs at Suite 200, lIumllll Services Buildillg, 16 Westlligh Street. Curlisle, Cumberland County. Pennsylvuniu, 3. Defendullt, COUllty ofCul11berlul1d. (hercil1l111er "CoUl1ty") iSll political subdivisiol1ofthe C0l111t10nwelllth ofPelll1sylvlll1ll1 with u principlll ollice lit One Courthouse Square, Carlisle, Cumberllll1d County. Pel1l1sylvllniu. 4. Delcndunt, Gury I. Shuey, (hercinutier "Shuey") is un udult individuul employed as Agcncy Adminislrlltor t'lr Cumberlund County Children und Youth Services, with u pr,lncipal place of employment Ul Suite 200. lIuman Services Building. 16 West lIigh Slreet, Carlisle. Cumberland County. Pennsylvania, 5. Defendant. Dianne Rupp. (hereinatler "Rupp") is an adult individual who is employed as Case Work Supervisor for Cumberland County Children and Youth Services, with a principal place of employnwnt at Suite 200. Human Services Building. 16 West High Street, Carlisle. Cumberland County. Pennsylvaniu, 6. Defendant. Christina Roland. nee Runyon. (hereinutler "Runyon") is WI adult individual employed as u Case Worker !,)r Cumberland County Children and Youth Services. with a principal plar.e of employment at Suite 200. Human Services Building, 16 West High Strect. Carlisle. Cumberland County, Pennsylvania. 7. Dcfendant. Wcndy B, 1I0verter. (hcreinaftcr "flovcI1er") is an adult individual who is employed as Program DircctorlDirector of Placement for Cumberland County Children - 2 . Do~U01cnt N I 32446 .. . aTlll fracture of the radius und uln(l. closcd hllUd injury allllmultiple contulllon5 and abrasions, These injuries again were Inllicted by Susan Fitzgerald. 20. Despite the ,i.llIrth arm fracture in less thanli.lur months and despite Dr. Boal's recommendation, Defcndunt Runyon closed the tile on June 19, 1995, noting that the suspicions of ubuse were "invalid." 21. The suspicions of ubuse were labeled "invalid" evcnthough. between February 20 and June 19, 1995, Defcndunt Runyon made. upon infomllltion and belief, only two home visits to the Fitzgerald home, 22. The suspicions of abuse were labeled "invalid" even though, between Dr. Boal's assessment on May 22. 1995. and the closing of the tile on June J 9, 1995. Defendant Runyon made no follow up inquiril's as to any further injuries sustained by the Fitzgeruld children. 23. The suspicions of abuse were labeled "invalid" even though. from February 20. 1995. through June 19. 1995, Deli.mdants did not investigate whether any other injuries were sustained by the Fitzgerald children or obtain any medical records regarding the Fitzgerald children to learn whether other injuries occurred. 24. Had the Defendants obtained medical documentation during their investigation from February tbrough JUlie of 1995. Delcndants would have been aware of further injuries suffered by the Fitzgerald children at the hunds of Susan Fitzgerald. 25. It is believed and therefore avcrred that. aside from the June 2 fracture ofSeth's arm. in April 1995. Stephen Fitzgerald was taken to Osteopathic Hospital as 1I result of 0, concussion and a laceration to his head requiring stitches. Again. these injuries were caused by Susan Fitzgerald, I>Ot;UlnlJflt NI32.t.t6 - 5 - /c/~ .... . 48, As a result uf the unguing und euntinuuu~ abuse whkh Delimdunts permitted and fl1cllituted. Seth spenttwu weeks in in.patient psyehilllrie cure und required over 43 sessions of uut.patient psychiutric cure. 49. Despite the ubuve treutment, Seth continues to suller physicul, emotiunaland psychologicul ellects uf the abuse. 50. From their tirst conlact with the Fitzgerald 111mlly, Defendants failed to properly investigate the actual und suspected ubuse by failing to obtain the proper inlormution and conduclthe necessary reviews. 51. The Defendunts had avuilable tu them a multi-disciplinary team (hereinafter "MDT") which is eomprised uf a number of professionals from dilli:renttields, as well as Defendants Runyon. Rupp and Orr und possibly Ihe other individual Dclendants who, given their positiun with Children & Youth. should have been members. While the MDT was created to review cases und oller recommendutions and suggestions. an MDT meeting was not held with regard to the suspicions of abuse in the Fitzgerald fl1mily until September 13, 1995. the day after Seth was nearly suffocated to death. 52. Once that meeting was held on September 13. 1995. the MDT recommended that the remaining children be removed from the household. 53. Once the Defendants removed the surviving children from the household, the Defendants assumed control over and directed the placement and living arrangements of the children, the medical care received by the children and the terms and ~onditions of the visitation llrrWlgements as they related to the children, ()u'Unlltl1ll1l.l2....,., - 9 . /30 i~ .. to them. Furtl'er, us u direct uml proxinlllte result of the utilrelllentlonedllctiuns of the Defendunts, Seth wus cllusedto suner u deprivution of his rights guuruntcedto him by thl! Constitution of thl! LJnitl!d ShUes und secured by the IlIws of the United Stlltes OncJudinl:!. but not Iimitcdto. 42 U,S.C. * 1983) ineluding his right to libertY. his right to be Iree from physlcul hurm und his right to procedurulllnd substuntivc due process in violution of the Fourteenth Amendment und those rights secured through the Fourteenth Amendment. und other relevunt provisions. of the Constitution of the United Stutes, WHEREFORE, PluintilTs demund judgment in their (uvor und ul:!uinstthe Defendants, Jointly and severally, in an ul110unt in excess ofTwenty-tivc Thousand ($25,000,00) Dollars and in e1tcess of thl! compulsory arbitration limits togl!ther with intl!r<:st, costs. damages for delay, e1tpenses and statutory allorlley's Ices as provided by 42 V.S.C. *1988 und uny other costs, fees and amounts as may be proper. COUNT II CAUSE OF ACTION UNDER 42 V.S.c. IS 1983 PlaintilTs v. All Delendants 84, Parugrnphs I through 83 arc incorporated herein by relerence. 85. The physic III and mentlll/emotionul harm suffered by Seth both before and after September 13. 1995. was foreseeuble und a fairly direct result ol~ among other actions and omissions of the Delendants stated elsewhere in this pleading. the Delendants' failure to properly investigate the allegations of abuse. tbeir luilure to ensure the salety of the children, their conscious decision to permit the children to remuin in the home. their decision not to place the Illll.:um-.:nl Ii I J24.lh - 14- /3..5 i j I I I ,..." --- inl:xecss ofthc compulsory urbltrutlonlimlts tOl!clher with Inlcrcst, CllStS, durntll!cs li,r deluy, cxpcnscs und stulutory Ullort!'IY's fccs us pl'o\'idl:d by 42 1I.S.C. ~ 1988 und any olhl:r costs, fees nnd amounts us may be proper. COUNT III CAUSE OF ACTION UNDER 42 lJ,S.C. ~ 1983 Plaintill's v. Cumberland County Childrcn und Youth Scrviccs and thc County ofCumbl:rland. Garv I. Shue\' . Dianc RUllll. Darlcnc Orr lllld Wcnd\' Hoverter 91. Paragraphs I through 90 arc incorporated herein by rcfercncc. 92. Defendants County, Children & Youth. Shuey. Rupp. Orr and Hoverter knowingly, recklessly or with gross negligence. deliberate inditlcrence and disregard for Seth's rights, failed to train, instruct. supervise. control and discipline on a continuing basis, Detcndant Runyon and other case workers with regard to. among other things. thc proper mcthod of investigating suspected abuse claims, obtaining medical documentation and assessment, assessing the risk to which childrcn such as Seth wcre exposed, properly assessing whether abuse claims were indicated as opposed to invalid, conducting tollow up visits to homes prior to closing files, making regular and routine visits to homes where suspected abuse was occurring, evaluating factors necessitating the removal and placement of children from abusive homes nnd the propriety of permilling. encouraging. arranging. directing and tacilitating visitations between a suspected and admilled perpetrator and an abused child. 93. The above named Detcndants had knowledge of or, if they had diligently exercised their duty to instruct. supervise, control and disciplinc on a continuing basis, would or .16. f)ol:umltnt . J 32446 IJ7 ~ "" shuuld huve hud knowlcdgc lhutthc wrongs hcrctolilrc nllcgcd were nbuuttll be cOJ11J11ll1ed or wcre being cUl1lmlllcd, 94, The nbovc numcd ()cfemlunts hud thc puwer und duty tu prevcnt or uld In prevcnting the cuml1lisslon of suid wrongs, could hnvc dunc so by rcnsunnble diligence und knowingly, rccklessly or with gross ncgli!!ence. dcliberntc indll1'crencc nnd disrcgurd for Seth's rights lililed or refuscd tu do so. 95. Del'cndunts, dircctly or indircctly. undcr color ofluw. upprovcd or rutilied the knowing, rcckless, grossly ncgligcnt und dclibcnlle conductofthc othcr Delcndunts. 96. As u dircct ul\d proximutc rcsult ofthc ullJremcntioncd uctions ofth~ DcI'cndants above, Seth was cnuscd to sul1'cr a deprivation of his ri!!hts guurantccd to him by thc Constitution of the United Stutes und sccurcd by the laws ofthc Unitcd States (including. but not limited to, 42 U.S.C. 91983) including his right to libcrty. his ri!!htto bc frec from physical harm and his right to proccdural and substanti vc duc proccss in violution of the Fourtccnth Amcndmcnt and those rights securcd through thc Fourtcenth Amcndmcnt. and othcr relevant provisions, of the Constitution of the United Stutcs. WHEREFORE. Plaintiffs dcmand judgmcnt in their favor and against the Defendants, jointly and severally, in an amount in cxcess of Twcnty-live Thousand ($25.000,00) Dollars and in excess of tht. compulsory urbitration limits together with interest, costs, damages for delay, expenses and stututory attorncy's fees as provided by 42 U,S.c. 91.988 and any other costs, fees and amounts as may be proper. ()ul:umt:nlll I J H.t() - 17- 137 ,..... CERTIFICATE OF SERVICE AND NOW. this ;~Uy OI'_rJ.f.u1l._.-..... 19911. I, Richard B. Druby, Esquirc, of Mlltzgllr, Wickershulll. KnulIss & Ern. p,c.. ulIorneys Illr Pluintitlil. hereby certify that I servcd B copy ofthc within Cumpluintthis duy by deposilinllthe sumc in the United Stutcs mBIl. postBgC prepaid. at Hurrlsbllrg. Pennsylvuniu. addressed to: Cumberlund County Children and Youth Scrvlces Suite 200, Iluman Services Building 16 Wcst Hillh Street Carlisle, P A 17013 County of Cumberland Onc Courthouse Square Carlisle, P A 17013 Gary I. Shuey Suitc 200, Human Services Building 16 West Hillh Strcet Carlisle. PA 17013 Diannc Rupp Suite 200, Human Scrvices Building 16 West Hillh Street Carlisle,l'A 17013 " Christina Roland Suite 200, Human Services Building 16 Westlligh Strcet Carlisle. PA 17013 Wendy B. Hovcrter Suitc 200. Iluman Services Building 16 Wcstlligh Strcet Carlisle, I'A 17013 Dol;umcn11l1324.16 lit . . ,. 1 ' , , I , , , 0-- , f ~ J ~ 1; ";;1 jE .h[ :;~ !~w ~,it ~ it ~ I " , 8, lI.'.) .~ h.. Q;,) . ~ " ':'t;;I,.j "U ." /J'I'j ';1,1 i "'ffl " '~;( 1 '-1 J!- I'.> , " , ~:i.! -t"J 'il~~ :~;?:;i -. "]'~ r.- (~rn .P}I .. ::'1, - ~. <::) ?i . <lj ,'1(' ~Il ,I . ~ ... r e 0 ~ .. :- :r . " 0 i ~ iii !l !l m % e m ~ 'i ~ ~ 0 ~ Il Q ~ '" :r ... '" ~ .. " '" !l ~ 0 . ~ m '" a ~ ~ ~ , , , , . . >, I") '0 c C') cc. '-r) "'.,' 1 :",1: -i, 1-,<, " . ~ ,'I , " ...,: 1'1,-'-'7 I r , f'.) , 1~1 II;'II 1 , " " ::-: 1(1") 1..,.' , " ',"'1 , I ,....,.) ,,/} " o, .~.,' 11 I ,:n "I ~; .h, "- ") -', ,...... -- 2. Plaintiffs seek to allege causes of action based upon 42 U,S,C, Sactlon 1983 (Countsl.V), the Pennsylvania Constitution (Count VI), "Under Common l'lw" (Count VII), Emotional Distress (Count VIII), and Punitive Damages (Count IX). I, MOTION TO DISMISS 3. Plaintiffs section 1983 claims should be dismissed for the reasons as follows: (a) Plaintiffs failed to state a cause of action based upon 42 U.S.C.A. section 1983; (b) Plaintiffs failed to allege the deprivation of a Constitutional Right by Defendants; (c) Plaintiffs failed to allege a duty on behalf of Defendants which was allegedly breached and resulted In the deprivation of a Constitutional Right; (d) Some or all of the parties are not or cannot be held liable for the acts or failures to act alleged in Plaintiffs' Complaint; (e) Some or all of the Defendants are immune from liability based upon 42 U.S.C. Section 1983; (I) Plaintiffs have failed to state a claim for the deprivation of substantive or procedural due process; 4. Plaintiffs claims for violations of the Pennsylvania Constitution should be dismissed for the reasons as follow: (a) Plaintiffs have failed to state a cause of action; (b) Defendants are Immune from such liability; (c) Some or all of the Defendants are not subject to liability for the alleged violations; 1.5:1. ...e,\ ;-.., (g) Plalnllffs' have failed to allege facts which meet an exception to governmental or offlclallmmunlty; 7, Plaintiffs' claims for liability for punlllve damages should be dismissed for the reasons as follow: (a) Plalnllffs have failed to allege facts which, If true, would support a cause of action for punitive damages; (b) Plaintiffs have failed to state a cause of action; (c) Defendants are Immune from such liability; (d) Some or all of the Defendants are not subject to liability for the alleged damages; (e) Plaintiffs have failed to allege any legal theory upon which they contend Defendants are liable for punitive damages; (f) Plaintiffs claims are barred by governmental Immunity, Including but not limited to that set forth In 42 Pa.e.S.A. Section 8541 et seq. (g) Plaintiffs' claims are barred by official Immunity, Including but not limited to that set forth In 42 Pa.C.S.A. section 8545 et seq. (h) Plaintiffs have failed to ailege facts which meet an exception to governmental or official Immunity; WHEREFORE, Defendants request this Honorable Court dismiss Plaintiffs' Complaint II, MOTION FOR MORE SPECIFIC PLEADINGS 8. Defendants Incorporate the averments of paragraphs 1- 7 as If set forth In full. 9. Plaintiffs have failed to set forth the facts upon which they base their claims with the requisite specificity. 10. Plaintiffs should be required to plead the aforesaid causes of action with requisite specificity, 15~ I ~ ... ~ 0 ~ '" ~ :- ~ ... >> ~ r ~ Ui !J ?l .. . c .. ... ;. ~ >> 0 .r:> . 8 ~ co z co .. r~ 9 .. Ul .. 0 >> II PI !:l ~ ~ . . " . . . --, ",1 " . ~ ,t,_. f") .. . ", -" 1 .t''1 ~~l '-.1 , t If) . ,I "J '- :(' ~ rl) :\~: "" " t >> ~ . c ~ 1) :0 ~ ~ 0 ~ n~ ~ ~ i . ~ ' ~ 0 Ul r ;; ~ I ! .. lJl lJl '" rll II III :i 9 o '" o o ~ S " ~ '" l~ . 1: ~ .. n o " >> ~ ~ lJl n , l . . ~ :; ~8 ;~ III n ...", . .... . b ~ " < , ~ '" '" ~ '" . -- . . (-', " .- '; . , I , , , ~ , , 'J I I , ti';' '.) , , , ,I , '. , , '.'.' , 'J \ ii' , ),1 " ., , J,'.' I. .. " ,!"\~ , .., ~.::} :_i,) ., I :.~ .., , I , , ~~ "'.... ~~ I . t:l ~ ~ ~ ~o'" tIilt'l ... t'ltij 80 0'" :0:'" "'0 '" f:;J::l .... o z ~ . tij n ~~ ;~ '" .... I P- '" '" '" n ... <: ... ... H t'I ~ no ~~ . ~ o ~i """ "..., .. SETII FITZGERAl.D ROBBINS, u minor, by ERIN ROBBINS und KERRY ROBBINS. his purents und nulurul guurdiuns, und ERIN ROBBINS und KERRY ROBBINS, in their own right. : IN TIlE COURT OF COMMON 1)l.EAS OF : CUMBERl.AND COUNTY. PENNSYLVANIA : NO. 97.4669 CIVIl. TERM Pluintlll's v. : CIVIL ACTION . LAW CUMBERLAND COUNTY CHll.DREN AND YOUTII SERVICES. the COUNTY OF CUMBERLAND. GARY l. SHUEY, Individunlly and in his Officiul Capacity us Agcncy Administrator for Cumberlund County Children und Youth Services. DIANNE RUPP. Individuully and in her Official Cupacity as Case Work Supervisor lor Cumberland County Childrcn and Youth Scrvices. CHRISTINA RUNYON, Individually and in her Oflicial Cupacity as Case Worker lor Cumberland County Children and Youth Scrvices. WENDY B. HOVERTER, Individually and in her Oflicial Capacity as Program Director fcn Cumberland County Childrcn und Youth Serviccs. and DARl.ENE ORR, Individually and in her Oflicial Capacity as Program Director for Cumberland Counly Children and Youth Serviccs. " : JURY TRIAL DEMANDED Defcndants PLAINTIFFS' RESPONSE IN OPPOSITION TO PRELIMINARY OH.JECTIONS OF DEFENDANTS I. No answer is required as the Complaint speaks for itself. 2. No response is required as the Complaint speaks for itself. Doel/mll'" N I Jj 791 It d. '-. t-\ .... I. MOTION TO U1SMISS 3, (a)-(I) Concluslonollaw to whkh no unswer is required. Ifan unswer is required. the allegutions of purugraph numher 3 arc specilieally denh:d. and proof thereof is demanded, 4. (a)-(e) Conclusion of law to which no answer is required. If an answer is required, the allegalions of puragraph numher 4 arc specilieully denied. and proof thereof is demanded. 5. (a)-(g) Conclusion oflaw 10 which no unswer is requircd. If un answcr Is required. the allegations of paragraph numher 5 lire specilically d.:nlell. und proof thereof is demanded. 6, (a)-(g) Conclusionoflaw 10 which no answcr is required. Ifan unswer is required. the allegations of paragraph numher 6 ure specilically dcnied. and proof thereof is demanded. 7. (a)-(h) Conclusion of law 10 which no answer is required, Ifan answer is required. the allegations of paragraph numher 7 arc specifically denied. and proof thereof is demanded. WHEREFORE. Plaintiffs request this Honorable Court to dismiss Defendants' Preliminary Objections. II. MOTION FOR MORE SPECIFIC PLEADING 8. PlaintifTs incorporate the responses to paragraphs 1-7 as if fully set forth he~ein. 9, Conclusion of law. to which no answer is required. If an answer is required. the allegations of paragraph number 9 arc specifically denied. and proof thereof is demanded, In further answer. the Complaint is 119 paragraphs. 77 of which set out. in great detail, the factual basis for the claims made. 10. Denied. "fJ~'l/Itw", N / Jj '"I}] /&,3 -.. ,...... crlliTIFICATE OF SERVICE AND NOW, thIS~UY of May. 1998,1, Richurd U, Druby, Esquire. of Metzger, Wickersham. Knauss & Erb. p,c.. attorneys for Plaintills. hereby certify that I served a copy of the within P/,lint!Ds' Re.vpon.vl! in Opposition 10 Defendants' Preliminary Ohjl!clions this day by depositing the same in the United States mail, postage prepaid. at Harrisburg. Pennsylvania, addressed to: Douglas B. Marcello. Esquire Thomas, Thomas & Hafer, LLP 305 North Front Street, 6th Floor P.O. Box 999 Hnrrisburg. PA 17108 I' , ,t t' {,< ()r'IC.'"mllnl N IJj';'91 /1,.5 . '" 0,.1/ '(. . . ~ ~ ~ ,I W I % 0 ~ ... ~. z ~ " 0 ~~ in !> !l CD % C II ... 1 ~ ~ 0 . 3 ~ .. z .. ... .. ~ .. ~ ~ (; ~ CD '" ~ !:l ~ ~ . , '. ~n : 1\ 1\,'\ ,I; ", , , () ,- I' . .' r1 J i (.-. c} ,', , " I ~,~.j '!ll "'Ii ,I']i ",! ,\'/1 :"'~d 1....-' :! . ",(1 r". - ..J "', "" . . Cumberland County, ss: The Commonwealth of PClIlIsylvllnia to ~IU"'" J>l t:Z~I:"l", Stilt.. cQr....ctiQR.l ame of Additional Defendant' Institute at Mun~i'L _~.O,_[1c)_x_ ~l!QJ _Route. 405. Muncv PA 17756 You arc notified that ~~rll;\nd_S2un~_S~ildren and Youth Services, ~_. (Name (I) of Defendalll (I) I J;Ql!ll!;Y of Cwrberland.-_et._al~ -1sea p"p"r "t-i'''l''h..rl) has (havc) joined you as all additional defcndant in this action, which you are re- quired to dcfcnd. Date June...l,.-l99L .-- ____..curt.ia-R. r 00"9 Prolbonolary -liy Ih",~ - P ?!/n /),v, I . Depu'\ (SEAL) I .' , , ,"' , I, " , ' I I I 113 '-' "",_n,' --~ .~ .'-:'--~''r1 ~--:':-~':1fJ ..,... , '''I'~;':I,'' .' I I ,,, \ " \ . '01' Me. 97-4669 ~~,,41 T-. It_. ;1'" . '; ,'I ; 1",1 I~ 'I'\!,';:',.',: \ -. Fl: " ~~~~W::':; 1',1, I} '1'1 ftl 'I I~ .,' J" ! I:\:'L ('I' ~,' 1 IfiJj' I It iI/ "lr I lq:!i,li,. , _~I~',f-,'!;V(;, ' 1--j"I' nt)I:;'\ :i.ii::.il;i' , j.~I: : I :;I!';-,' I r ~. J; ,',I . fli!{'''! "', W;.!.~l,r F'I"" ,(1;))1' ;.Fiij('1 ~I.i>j",' , '! RAth Fit-7.CJp-rAln Robbins. 8. minor . by Erin Robbins and Kerry Robbins, his pa,rentB and natural guardians, and Erin Robbins and Kerry Robbins, in their own right I I, , " ,II" , I' I , , , , , YI. !I ,'1.; '11,;'1' "'.~r11l1IJ'a "'",,,n+-1' rh4 1 ArID" ann Youth Services, the 1M .. t CoUnty of CWrtlerland, Et. Al. lsee DIWOr attached) I, I' \ ,.)/ , , , " 'II ", , ' " I, , I Susan Fitzgerald, State Correctional T"A"it-nt~ At_Munqy. P.o.J3gx. _ AcldllloaaI Delaaclul Route 405, Muncy, PA 17756 'I"j , , rt. \ .' I. h_'I,'" I il\.;I." V,:I~/"-:'" Ii! I 1";'1(" 1" ' ,J,;/(! , I' 'il r"" ," waIT TO JOINED AN ADDmONAL DEFENDANT , " " I, , I I , , " , 'I ~:'" If. ';"'])1 ,-,,' 'I " ;";1 '-"j'l 'I ,', Douglas B. Marcello, Esq. Thomas, 'lhonBs, & Hafer, LLP 305 North Front Street Post Office Box 999 'Harrisburg, PA 17108-0999' 717-255-7238 ';,1 il'l , AtlOmey " ,,' , , t,in~""""",,"v--~"-~-'-"~""""I""'l'''.'''-' ." , I' ' '. "-:~.-""-'-"'~'''''''''''''''-~~M\ljJl.~'Il'''. ~f"nJfmI- , . '"" ,~l' . . , f""\ 1''*1 CIRTIrICATI or SIRVICI On this ~J#I day of June, 1998/ I, Sallie Osman, hereby certify that I served a true and correct copy of the foregoing Entry of Appear~nce upon counsel for all parties of record via United States Mail, postage prepaid, addressed as follows I Richard S. Druby, Esquire METZGER, WICKERSHAM, KNAUSS & ERS, P.C. 3211 North Front Street P,O, Sox 5300 Harrisburg, PA 17110-0300 Douglas S, Marcello, Esquire THOMAS, THOMAS & HAFER 305 North Front Street Harrisburg, ~A 17101 SAIDIS, SHUFF & MASLAND ,I , " SAlOIS, SHUFF & MASLAND A'ITDINlYleAT-UW 16 W. Hlab Sir'" C.ult.lt,PA " /7..5 .', ) t""1 . , I , , I III " ''I , 'II , " I' P. >1'l ~\ I.q W" 1,- " " '"T'p" It,~ 'r ""' , tl~ ',\ I ~,l.. ',1\1,1 r'>I - 'l~r' , , -', ) I") .~ ' OJ' ' .h ,~: (, , ..,- ,. ., ~ \-''',1 ';,.i~ ,,:,:;-" . .~I~ ' , .' (0., -jrll op' t'-) . ~;\, " .. ..., I .,~ ~'l '=' ~.q -. 1.1' - I, " " " " I, " , , , " " ....,.. ~ Seth Fitzgerald Rot; IS (minor) et. a1. \'S. CUmberland, County Children Servel Susan Fitzgerald -- b Youth Scrviclls, lrunate H l O. D. The County of CWlberland at. a1. 4348 No, 97-4669 Civil 19_ Now. 6/3/98 Lycanin9 19_.1 SHERIFF OF Cl.'~IBERLAND COUlliT)', PA do htreb~' deputiu the SbtrllTof CUUQt)'IO ueCUlt Ihll Wrll,lhls deputolloo btlo~ modt Ollbt requm oDd rllk oflhe PlololllT, ~~rJ'<~~ SberlITofCumberlood Couol)', Po. Affidavit of Sen'ice Now, July I, IIltblo Writ To Join Additional Defendant 19 98 .01 10115 o'dock A, ~l. Itr\'td tht UpOD Susan FitzRsrald ot State Correctional Institution at Muncv. Pennsvlvsnia by boodlDg 10 Susan FitzRerald. Dersonallv. onested CDPY Dflhe orl&IDDI Writ to Join Additional Defendant her the CDDlenlS IhereDf. o true oDd ood modt koolln 10 So oosllers, '.... ~~~\3~__, ~ ShtrllTof LYCOMING Counrv, Po. Charl.es T. Brewer . BY: $\\oro ond subscribed btfore me rh du. of . . I 9..2.!L SERVICE MILE.-\GE ..\FrIDA \IT 5 18.00 6.50 2.50 S 27.00 $ 23.00 Refund Paid 7/1/98. --'J Wit I M J ntmn. >. Ofl'lonotary & C"llIllc ul (O,.Irh willh.llnlUorl :.YCOmlng (OlJ,,'" P-. _~~~::~~r;.:.~~':.:~::::~:....:'~~"~. $';0.00 DepaHl! /77 ;i .. . ,I I' . , , t*"\ '~ , . . " " L^W nFFIC~N NAmiK, ClUII)O,NIIUFF II MASLAND l~ w 111I111 'T~Hr IIIW M^RKnT STREET <'^RI.ISI.I'.I'^ 11111 \ C^MI' 1111.1., P^ 17011 1'1I0N!! 17111 H I~lll I'IION!! mil 7l7.lM); 'q'~I.qg- (""')' Cl!IlTIFll!P Copy, ("') .. " I. ...'" ..' . II . ,",t _j - ,\i~t '.\' iIj~ 't1"Jb-i;k~ilWlil-it.~(''''''i'---''''-'''.' iti,)." \~:i;;~'~'JtYfn~if(I~I,jMJiUjjlfU}ll'l'1i~ffi!1 ~F' l ",.,,-..~..-~---_.....-....._..- " ." I ". ~ . " . . " . 'I " ~ ,( #' , !'"" i ,I , 'I " ( I , ~ -- ':,.,~.. 7"---" . I, \ i,. I I I i SAlOIS. SHUFF & ! MASLAND ATTOaNI\'IIATOW 16 W. HI'" Sit... c.,II.I.. PA -, ~ SETH FITZGERALD ROBBINS, a minor IN THE COURT OF COMMON PLEAS by ERIN ROBBINS and KERRY ROBBINS, CUMBERLAND CO, / PENNS'iLV'ANIA his parents and natural guardians, I and ERIN ROBBINS and KERRY ROBBINS, I in their own right, I Plaintiffs I I V. I NO. 97-4669 CIVIL TERM I CUMBERLAND COUNTY CHILDREN AND I YOUTH SERVICES, the COUNTY OF I CUMBERLAND, GARY I. SHUEY, I Individually and in his Official I Capacity as Agency Administrator. I for Cumberland County Children and I Youth Services, DIANNE RUPP, I Individually and in her Official I Capacity as Case Work Supervisor I for Cumberland County Children and I Youth Services, CHRIST1NA RUNYON, I Individually and in her Official Capacity as Case Worker for Cumberland County Children and Youth Services, WENDY B. HOVERTER, Individually and in her Official Capacity as Program Director for Cumberland County Children and Youth Services, and DARLENE ORR, Individually and in her Official CIVIL ACTION - LAW Capacity as Program Director for Cumberland County Children and JURY TRIAL DEMANDED Youth Services, Defendants NOTICE OF INTENT TO SBRVE SOBPOINA TO PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 TO, Richard B. Druby, Esquire METZGER, WICKERSHAM, !<NAUSS &. ERB, P.C. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Defendants intend to serve Subpoenas identical to the ones that are attached to this Notico. You have twenty (20) days from the date listed below in which to file of record and serve upon /g{) ~ SETH FITZGERALD ROBBINS, a minor by ERIN ROBBINS and KERRY ROBBINS, his parents and natural guardians, I and ERIN ROBBINS and KERRY ROBBINS, I in their own right, I Plaintiffs I I I I I I I t v. CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES, the COUNTY OF CUMBERLAND, GAr.Y I. SHUEY, IndiVidually and in his Official Capacity as Agency Administrator for Cumberland County Children and Youth Services, DIANNE RUPP, Individually and in her Official Capacity as Case Work Supervisor for Cumberland County Children and Youth Services, CHRISTINA RUNYON, Individually and in her Official Capacity as C~se Worker for Cumberland County Children and Youth Services, WENDY B. HOVERTER, Individually and in her Official Capacity as Program Director for Cumberland County Children and Youth Services, and DARLENE ORR, Individually and in her Official Capacity as Program Director for Cumberland County Children and Youth Services, Defendants ~ IN THE COURT OF COMMON PLEAS CUMBERLAND CO. / PENNSYLVANIA NO. 97-4669 CIVIL TBRM CIVIL ACTION - LAW JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THtNGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TOI Silver Spring Township Police 6475 Carlisle Pike Mechanicsburg, PA 17055 With.i.n twenty (20) days after service of this Subpoena, you are ordered by the court to produce the following documents or things: Any and all information contained in your files regarding Stephen Fitzgerald, deceased, Shawn Fitzgerald, Jr., Shawn Fitzgerald, Sr., Susan Fitzgerald and/or Seth Fitzgerald Robbins; any and all information which previously has been forwarded to Attorney Richard Druby of Metzger, Wickersham, Knauss & Erb, P.C. in the above-captioned matter; and any and all information regarding an incident occurring on March 13, 1995 at the Fitzgerald residence and information involving any other police intervention or interaction thereafter up to and including September 13, 1995. If!), ,""""' ,..... The requested documentation shall be delivered of Saidis, Shuff & Masland, 26 West High Pennsylvania 17013. You may deliver or mail legible copies of the documents or produce things requested by this Subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. to the law offices Street, Carlisle, rf you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS rSSUED AT THE REQUEST OF THE FOLLOWING PERSON: Name: Mark W. Allshouse, Esauire Address: 26 West Hiqh Street Carlisle, PA 17103 Telephone: (717) 243-6222 Supreme Court ID ~ 78014 Date: Seal of the Court BY THE COURT: Prothonotary Deputy .' )g3 ,-., SETH FITZGERALD ROBBINS, a minor by ERIN ROBBINS and KERRY ~OBBINS, his parente and natural guardians, t and ERIN ROBBINS and KERRY ROBBINS, t in their own right, t Plaintiffs t t I t I t t t t I t t t t t t t I t t I t I v. CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES, the COUNTY OF CUMBERLAND, GAr.Y I. SHlTEY, Individually and in his Official Capacity as Agency Administrator for Cumberland County Childr~n and Youth Services, DIANNE RUPP, Individually and in her Official Capacity as Case Work Supervisor for Cumberland County Children and Youth Services, CHRISTINA RUNYON, Individually and in her Official Capacity as Case Worker for cumberland County Children and Youth Services, WENDY B. HOVERTER, Individually and in her Official Capacity as Program Director for Cumberland County Children and Youth Services, and DARLENE ORR, Individually and in her Official Capacity as Program Director for Cumberland County Children and Youth Services, Defendants ,- IN THE COURT OF COMMON PLEAS CUMBERLAND CO,/ PENNSYLVANIA NO. 97-4669 CIVIL TERM CIVIL ACTION - LAW U11RY TRIAL DE~mED SUBPOENA TO PRODUCE DO~S OR THINGS POR DISCOVERY PURSUANT TO RtJLB 4009.22 TO: North Middleton Township Police 211 North Middleton Road Carlisle, PA 17013 Within twenty (20) days after service of this Subpoena, you are ordered by the court to produce the following documents or things: Any and all information contained in your files regarding Stephen Fitzgerald, deceased, Shawn Fitzgerald, Jr., Shawn Fitzgerald, Sr., Susan Fitzgerald and/or Seth Fitzgerald Robbins; any and all information which previously has been forwarded to Attorney Richard Druby of Metzger, Wickersham, Knauss & Erb, P.C. in the above-captioned matter; and any and all information regarding any police intervention or interaction at the Fitzgerald residence from February 20, 1995 up to and including September 13, 1995. The requested documentation shall be delivered to the law J8Y " ,.... ,- offices of Saidis, Shuff & Masland, 26 West High Stre~t, Carlisle, Pennsylvania 17013. You may deliver or mail legible copies of the documents or produce things, requested by this Subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this Subpoena within twenty (20) days after its service, the party serving this Subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSONt Name: Mark W. Allshouse. Esouire Address: 26 West Hioh Street Carlisle, PA 17103 Telephone: (717) 243-6222 Supreme Court ID ~ 78014 Date: Seal of the Court BY THE COURT: prothonotary Deputy " /85 ~, .. I, 'I, > , " , " I , , , 1'1 " I,' I, >' 'I " C.... ~ r,'l I C', , ~f''' v). ';1 r .. I, '.~ "\~ 'I ."I,'j roc, 1') ,,,.:'l '! \.)."~ -, ,I I , r.~j'(j .,~ ',' "1 r) . ,: ,~) .... ' . '.. '-l-j N ~ ;'''' (, .', .. I, :!J - I, , .~ ... " >, '" " , " .-t"':::':~~~.':"";_-.----:: ~~ ~~ zffi~ ~~ :.~ ~;:l:i~ "" ::> o HI E-<~ S U Z l'l ~$S~ o "'E-< U ..1' U ~ ,.!..<~ ~"'::JI>' ~B~~~ (fI' " i1'I~ ~ . (, I, t/ " -- :. , r ' . " .2l :~ =!" fj~ p. . '" ~ '" ~ ~ <.? N E-< H "" e '" " , ' , .~~--~--.- . ~ ~ m ~ ] ~ ~ a : B=! ~~ se ~~ sl ~ '" ~ . ~ .. m ... ~ .... 01 "" ~ g .... .. ~~ <.!l i:l H "" '" , " " I I .---- I" -, ...... u .... .... ...,. ""<"1 o . ~P: H< ~ . ~~ :~ o ""~ i~ . ._.~o--_~~~.,_,~,._.,______""_""___""""""",__, ----_._...--.._-_..._.._--~....~-,.~------------_. " , , '" , , " il <, " 1\ .'n: f i ~ I -. ~ :; G ,~ ;;11 Iii rr: :- ~ ~-e. .z::~l:. ~ 0 ~ /c.:~ ,L i " '-, '.~.r.) 1,,0 ." ~q "j f IJ:l 9t ':,",, "I 1] , ,Ifl ' H. ~\ ) ,.J.~', ,Jr 'f' ',,:1 'Pl' ~ . ~-, ...f ,J_, , J,;.'., .. :7) ", I: G ~ ]: ~ E ~ 'r. - 'J.'f s' " '" F .: .] t.< ~ ~ ?:"1 -t E:- '7 . .. . -- . ..... ,--- . " ., " " " " , , " " , ' , ., " " " , " , " -1_, 'II I,' j'l " 11 " .. " , , " 'i"' I, , I., ,>I:!>! '. ,,' ,:;,\) -I.' ;\,.1 I' :t\\ ,t'l i' , " cr,; OI:C \!.I ,': " i't'.l , '1"11"" . ".if.....!.l.. '" . :"'\IIJ",-(I' .., Jv _ .'.... ....,1 ,I. :,\ _I''; ,. ,....-..' -'.:-__~.;.....tJl..... '-," .,'''' ~ ':'._-~, ,~_. "~ r.. parent to gain allentilln.J Plaintltls' complaint contuins nine counts, Ilve of which charge federal civil rights violations, onc of whkh usserts violations of the Pcnnsylvaniu Constitution und the remainder of which set Ii.mh e1uims Ii:)r vlolutioll of II duty to protect, inlliction of emotionul distress and punitive damages. For disposition at this time arc preliminary objections in the nature ofdemurrers1to PlaintillS' complaint. tiled by Delendants. For the reasons stated in this opinion. Defendants' preliminary objections will be sustained and PlaintillS' complaint will be dismissed as to Delendants. STATEMENT OF FACTS Plaintifls' complaint in this case was tiled on April 2. 1998. Its fnctual allegations may be summarizcd as follows: Plaintiffs arc Seth Fitzgerald Robbins (date of birth December 14, 1991) and his adoptive parcnts, Erin Robbins and Kerry Robbins.4 Defendants arc Cumberland County.5 an agency of the county known as Cumberland County Children and Youth Services,6 the l Plaintiffs' Briefin Opposition to Dctendants' Prcliminary Objcctions, at 8 n.1. ) In the alternative. Dcfcndants' prcliminary objections scck a morc specific pleading. 4 Plaintiffs' complaint. paragraph I. 5 Plaintiffs' complaint, paragraph 3. · PlaintitTs' complaint, paragl'nph 2. 3 -, .-, The llle was reopened whellthe agency leunled thai the minor pluintitl's other hrother sustained an arm thlcture on March 28, 1995,'" The agency engaged the services of II physicianut the Ilershey Medical t'enh:r nnd Illrwnrdell X-I'lIYS Ill' the fructures to her Ii.lr rcview: the doctllr recommended tlUIl u more thorough medicallnvestigution he underlllken in the event that additional fractures were ineurred,ll The lirst injury to the minor plainlill' occurred on June 2, 1995, in the lbrm of u closed heud illjury, multiple contusions nnd lIbrasions, ulId un nrmlhlcturc.IH The minor pluintill, was presented to n dlllerellt hospitnllhJlllthut to which his hrothers had bcentakcn,l'j und the agellcy's kllowlcdge of this incident. if any, is not specilied in thc compluint. At some point prior to JUlie 19, 1995. the lIgency's cllseworker made a sccond visit to the Additional Defelldullt's home.'" This illvestigutionagain did not euuse the caseworker to belicve that the children's mother \Vus physicully ubusive. lInd the IiIc WllS again closed,21 A fair infercnce to be druwlIlrOlllthe compluint is lllllt the caseworker tililcd to diseenl that thc Additionnl Dcfelldnnt was nftllctcd with MUlIchausen Syndrome by Proxy," and that 10 PlnintitTs' complaint. pnragrllphs 17.18. 17 Plaintiffs' complaint. paragraph 18, IN Plaintill's' complaillt. pnrngraph 19. I' Plaintiffs' complnint. paragruph 19. 20 Plaintill's' complailll, paragruph 20, 2' /d. 11 Plaintiffs' complnint. pnrugraph 55. 5 /'13 _.~ -', on Septemher I, 1995. shc rel\uested medicnl records on nil three of the children; III an uddltionul homc visit WlIS scheduled by the cllseworker lhr Scptemher 12, 1995,J1 On Septcmber 12. 1995. the minor plullltiff sut'lered u seil.ure,ll An emergcncy meeting ofumulli-discipllnury teum within the ugency resulted in the prompt withdruwal of the children fromlhe Additional Detendunt's cOlltrol.l\ As the investigation continued, and 1I0twithstanding additional evidence tending to show that the Additional Dcfendantll1ight have induced thc seil.llres hy mellllS ofsullbcatlon with pillows.14 the agency pcrmilled her to visit with the minor plaintill over un unspecit1ed period llftime.15 It is not suggestcll, howcver. that the visits were unsupervised or that the minor plailltiffwus subjectcd to abuse durillg any of the visitations. The minor plailltiff suflered "physicul illjury, cmotionaland mcntal distress and anguish. embarrassment and humiliation, amI will, illthc futurc. cOlltinue to undergo such mental distress, anguish. embarrassmellt and humiliation:' as a result Ill' the incidents and )0 Plaintiffs' complaint. paragraph 41. l' Plaintiffs' complaint, paragraph 45. Jl Plaintit)'s' complaint, paragraph 47. The visit by the caseworker had 'been rescheduled at the Additional Defendant' s request. {d. ' J) PlaintifTs' complaint, pnragraphs 52-53. 14 Plaintiffs' complaint, pnragraphs 61. 63. 65. 67. H Plaintiffs' complaint, paragraphs 60. 62. 64, 66. 68-11. 7 /95 ,,""I 1"""1 injuries recitcd,'" lie "hils undergone much puill. sutlcring. inconvenience. loss of enjoyment of II Ie and loss of Hie's pleasures lInd will in the Illlure continue to suller such 10sses,"17 Both hc und his udoptivc pnrcnts hllve incurred, und will incur, medlculund olhcr cxpenses hy reuson of the incidents und injuries. 1M Count I of Pin in tills' cOlllpluintussel1s u civil rights c1uim under Section 1983 of Tille 42 of the United Stutcs Code, hased upon an alleged dcpl'ivution ofliberty. the right to be Iree lrom physicul harm. and lhe right to procedurnl nnd substuntive due process. arising out of a "special rclationship" between I>clendants and thc minor plaintiff. Count" asserts a civil rights claim under Scction 1983 based upon the all)resnid deprivations of rights, arising out ofa "state-created danger"to the minor plailltill Cllunt III asserts a civil rights violation under Section 1983 agllinst all dcfendants except the caseworker, based upon the all)resuid deprivutions of rights, due to a failure to properly truill and supcrvisc. Count IV asserts u civil rights violation under Section 1983 against thesc dclcndnnts based upon thc alllresaid deprivations of rights, due to a failure to obtaill information ns required hy the Child Protective Serviccs Law. Count V asserts a civil rights violation under Section 1983 against the individual delcndallts "in their illdividual capacities." This claim is based UpOll thc aforcsaid J. Plaintiffs' complaillt. paragraph 76. 31 Plainti\ls' complaint. pnragraph 77. 3M Plaintifts' complaint, paragraph 75. 8 /9C "", ,,-., deprivations of rights, due 10 f)elendlllllS' ucts Ill' "gross negligence. willl'ltl disregard lor und/or deliberuh: indillereuce to (the minor plnintilrsl sulely und the sulety of Ihlsl hrothers, .. Count Vlndvnnces n c1nilll tllr violutions of the Pelln~ylvnnlu l'ollstilUtionnguinst ull dclendullls. This cluim is predicllted upon u deprivution of lhe millOI' pluintill's "rights guaranteed to himlunder the Penllsylvuniu Constitution I ineluding. hut not limited to, his right to he free lhllll physicnl hurm and his right to procedurulnnd suhstuntive due process ill violation of Article I. Section I. Arliele I. Section 9. und Arlicle J. Section 26 und other rc1evulll provisions of the r Pennsylvullia I Constitution," Count VII usscrts n "cause of action under common luw:' uguinst ull dctendallls. based upon a poor perllmllnnce of II service ulldertnken to protect the minor pluintill: leaving him "inu worse positioll than when I they I took charge of him:' Count VlIl usserts u e1aim tor illtliction of emotional distress ugaillst all delendants. Finally. Count I X purports to assert nn illdependcllt cause of actioll ll)r punitive damagcs against all defendants. Delelldants. as 1I0ted previously, have liled preliminary ohjections in the nature of demurrcrs to the various counts ofPlaintill's' complaint. The matter was argued 011 June 24. 1998. DISCUSSION General principles of/Cllv. Preliminnry ohjectiolls in the lIature of u demurrer may be sustuincd and the complaint dismissed where it appears that the elnims of a plaintiff against 9 /97 /oI~ ,-\ 1I defendant lack merit us u muller of luw, Phi/mal' Mid-AI/alTlie, II/c. v, Yal'k SII'ee! Il.I'slIL'iclle,\' /I. 389 Pu. Super, 297, 302, 566 A.2d 1253, 1255 (1989), "A complaint should he dismissed [onu demurrerlollly in cleur cuses ...... GI'allam v. Pil/cki/ley, 125 Pa, COllllnw, 233,235,557 A,2d 60, 61 (1989). In the cuse of public servunts whose duties illvolvc the exercisc of judgmelltund discretion. public policy wnsiderutions militate against subjecting the employees to a risk of personul Iiubility lllr alleged crrors of performunce except ill extreme cases. "[Tlhe purposc (of this policy isl to alleviate thc lear that every policy decision will subjeet them to lawsuits.... Whell the lIature ofa public servant's decisiollmay not be measured against a predictable standard of care, the possibility of litigation may tend to discouruge the making of clear choices," CosllIpoullls v. Gihhol/ey, 134 Pa, Commw. 263, 268, 579 A,2d 985, 988 (1990) (state troopers), appeal denied. 527 Pa. 619, 590 A,2d 759 (1991). The soulld exercise ofjudgmellt by public servants is lostered by an atmosphere "free of the chilling ell'cct that lear of unpredictable persollnl liability almost certainly would impose..,," Simmolls v. Collen. II J Pa. Commw. 267, 287. 534 A,2d 140, 149 (1987). III this context, policies protective of public servnllts are illtcllded to benefit the public. not the servant. See generally McKibhen v. Sellmolzel'. 700 A.2d 484 (l>a. Super. Ct. 1997), The particular susceptibility of coulIty child services workers to accusatiolls of wrollgful conduct whether they do or do not nct to sepnrute a child from his or her parents has been noted by the United States Supreme Court. DeSllaney v. Winnebago County 10 /9S -~, _. individunl against privute violence simply does 1I0t constitute II villlutlon of the Due Process Cluuse...'11 Inu child ubuse clIse of the present type. neither II theory lhllt the delendllnts 4J lei. 1Il197, 101) S. ('I. ut_, 103 I.. Ed. 2d ut259. Wilh respect to procedurul due process, it hns heen ohserved in this context by severnl lederal nnd state courts tlmt "prucess Is nllt nn end in itself." nnd thut u prllcedurnl deficiency dlles not generully rise to the levelllf u federal eOllslitulillnnl violutlon in Ihe uhsence of n resultunt deprivutilln ofa substnnlive righl. &e, e.g, /Joe v. m.I'Ir/el o{( 'olulI/hia. 93 FJd 861. 1166-67 (I).C. Cir. 191J6); Doe v. Milwaukee. 903 F.2d 491), 503. (7th Cir. 11)1)0): Well.I'v, Maryland. 642 ^,2d 1179, 11117 (Md. CI. Spec. App. 191)4). Nll such violntlon of u suhstuntive cOllstitutillllul right is pn:sent in thiscuse. SedJ.; ~'1: O/ill/ v. Wakinekoll/a, 46IlJ.S. 2311.1035 S. ('I. 1741. 711.. Ed. 2d 813 (l983). The illadvisabilily llf elevating state-lIlnndated prucedul'es 10 cllnstilulillnnl rights per se hus been explained liS follows: It is by now well-established thnt in order to demonstrate u property interest worlhy ofPl'otection under the liJUrteenth amendmenl's due process clause. a party may not simply rely upon the procedurul guarantees of stute law or localordillance.... Courts hnve observed the cllntilsioll thnt would result from elevating state-mandated procedure 10 the status of a constitutionully protected property interest.... Constitutionalizing every state procedural right would stand allY duc process analysis on ils hend. Doe v. Milwaukee. 903 F.2d 499, 503 (7th Cir. 1(90) (citutions omitted), With respect to an alleged fuilure to train and supervise a caseworker. the same ditlicuhy with Plaintitl's' constitutional claim under Sectioll 1983 may be noted. See Friedll/an v. City of Overland, 935 F. Supp. 1015. 1018 m.D. Mo. 1(96) (lJ1unicipalliability under Section 1983 on failure to train theol'Y or custom and policy theory held dependent on existence of liability on underlying substantive constitutionul eluim). In addition, "an inadequacy of... training may serve as the basis of section 1983 liability only whcre thc failure to train amounts to deliberate indillerence to tbe rights of persons witb whom municipal employees come into contacl." CityolCan/rll/ I', lIal'ri,l. 489lJ.S. 378. 31111.109 S, Ct. 1197. 1204. 103 L. Ed. 2d 412. 426 (19119) (emphusis added). A fuil' review of the facts nlleged in Plaintiffs' complaint does not admit of a conclusion that the detelldnllts charged wilh a tnilure to train and supervise wcre deliberately inditler~nt to the fnte of the minor plaintiff. Finally. a failure to train nnd supervise un employee willllot support n Iindinl! of liability ,I 13 JO/ ""\ .- averment, Waklet-Rlke/' v, Sayre Are(/ Educatlol/ Assoclatlol/. 44lll)1I. Super. 494, 656 ^.2d 1311 (\995). Malice. in the cuntext ufullidlll immunity, hlls been equllted with "mallgllant leelings .., or... u wicked disregllrd of the interests of others." AmmlllllK v, City o[Chester, 224 I'll, Super, 47. 56-57, 302 A.2d 49 L 496 ( 1973), "Willllllmiscundllctlunder the Political Subdivision Tort Claims Act! .., mean[s] conduct whereby the actor desircd to bring ubout the result thllt followed or ut lellst was aware thut it was substantially certain to Illllow. so that sllch dcsire can be implied. III other words. the tenn 'willli.tlmisconduct' is synonymous with the tcrm . intentional tort, '" KinK v. Breach. 115 Pa. Commw. 355, 366.67, 540 ^-2d 976. 981 (1988) (citations omitted), In the present case, a fair reading of the lllctual allegations regardillg the Defelldants' conduct. and the rensonable infcrcllces to be drawn thcrclrom, if believed, do not support a conclusion that allY of the individual defelldallts actcd with maligllant feelillgs or a wicked disregard of the interests of the millor plainti ff, Nor do they support a conelusion that allY such delclIdant acted with an intellt that the millor plailltilf be illjured, or with an awareness that his illjuries were substalltinlly certnillto occur. At most, the complaillt presellts a series of evellts ill which all error of judgment by a delendallt ill failillg to recogllizc an ulIusual personality disordcr ill the minor plaintiffs mother resulted in the most tragic of consequcnces. Under these circumstances, the individual de tend ants are entitled to immunity undcr 19 ;'{)7 ,...., t"". SETlI FITi'.(jEI~Al.I) ROBBINS, 1I1llinor, by ERIN ROBBINS 1I1ll1 KERRY IWBBlNS, his pnrenls lInd nntural gllllrdilllls, and ERIN ROBBINS lInd KERRY ROBBINS, in their own right, IN llm COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,I'ENNSYLV ANIA NO. 97-466') CIVIL TERM Phlinlill's v. CIVIL ACTION - LAW CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES, the COUNTY OF CUMBERLAND, GARY I. ~nIUEY, Individually and in his Officiul Cupacity as Agency Administrator flU Cumberland County Children and Youth Services. DIANNE RUPP, Individually and in her Official Capacity as Case Work Supervi~or li)r Cumbcrland County Children and Youth Services, CHRISTINA RUNYON, Individually and in her Official Capacity a~ Casc Worker for Cumberland County Children and Youlh Service~, WENDY B. 1I0VERTER, Individually and in her Oflicial Capacity as Program Director lilr Cumberland County Children and Youtb Scrvices. and DARLENE ORR. Individually and in her Oflicial Capacity as Program Director for Cumberland County Children and Youth Services. .. . " , , , " , " : Defendants v. SUSAN FITZGERALD, Additional Defendant : JURY TRIAL DEMANDED AMENDED ORDER /lon"mmt N UIIJJ7 :2J/ r"'\ ,..., Plaintlll'~, by alll.llhroullh their counsel, hereby petition this Court tlllllllke a determinlltion of tlnallty 01' its Ordcr of Jllnunry IS, 1999, alld make nn exprcss determination lhnt IIn Immcdiate uppenl would tucllilate resolution of the entire case. In thc alternative, Plaintitl's requestthlltlhe intel'locutory order be certilied lor appenl. In supportlhereof, I'laintill's make the following uverlllcnts: 1. Plainlill's liIed a Complaillt in lhis mailer on April 2, I 9911. alle!!ing civil rights violntions under Ihe United States alld Pennsylvania Conslitutiolls, common lllw clIuses of action nnd punitive damages lor injuries sustaincd from Fcbrullry 1995 Ihroullh approximlltely January 1996, 2. Claims were brought not only on bchalf of the minor child but on behalf of the adopti ve parents. 3. Defendants joined. by Writ of Summons on or aboul May 29,1998, Susan Fitzgerald. Delcndllnts ncver filed a Complnint agaillst the Additional Defcndant and there are no claims currently nsscrtcd againsl hcr. 4. At thc timc ofthc Additional DctclIdllntjoilldcr, the slatutc of limitations had run on Ihe adoptive parcnts' claim. 5. Defcndants had not tilcd a Complaintagllinst the Additional DclclIdallt and the Plaintiffs have not madc, and will not makc, any allegations against the Additional Delendant. 6, Additional Detcndant is currclltly scrving 13 to 28 years in prison and is judgment proo f. . ]. {Jol:mnenl N /.MJr d/ ~ 1'""\ ,-.. 7, Onllr nbout Muy II), 19'JII, Detimdllll16 tiled Preliminary ObJectioJ\~ in the nuture ofa demurrer to uli counts ofPluimlfl's' ('ollJpluinl. II, By Opinion nnd Order dulCd January 15, 191)9, thi6 Honorable Court sU6tnined Delendnnts' Preliminary Objections us to ull counts und dismissed Plaintills' Complaint as to the Delcndants, 'J. This Ilol1orable ('ourt's Order of January 15. I 'J'J'J, is alinal order with regard, to the adoptive purents' claims sincc the stnlutc of limitations had run in those claims at the time of the joinder of thc Additional Dcfcndunl. 10. Additionally, this 1I0nomble Court's Ordcr of January t5, 1999, can also be construed as a final order with regard to the minor's c1ulms since all claims allegcd in the Complaint have becn dlsposcd of us to nil parties against whom such claims have been made under Pa. R.A.P.141(a), (b). 11. However, out of an abundance of caution, Plaintiffs respectfully request that this Honorable Court c1nrlfy Its Order of January t 5, 191)9, by dctermining that an immediatc appeal would facilitate resolution of the entire case and by entry of a linal Ordcr as to all Plaintiffs and all Defendants pursuant to Pa. R.A.P. 341(c). 12. Since the adoptive parents' claim is n final Order, the Commonwealth Court will already be considering their claims and therefore. as a mallcr of judicial economy. it is best to have ali claims decided at once solhut the Court necd not consider the remailling claims at a later time. " 3 - 'Jonm'tflfN 14,YJJ7 dJ:j ,,,,",, ,..., 13. Addltionnlly, Ihe Jnnunry 15, 1999, Order N1IIJuld be eertil1ed us u I1nalorder Nince ulloftlw l'lnintill's nre "out of Court" with regurd to lilloI' the ullel!utions mude In their Complnlnt. 14, In the ulternutive, if this Ilonoruble Court believes thutlls Order of JunUllry 15, 1999. is not II linulorder. Pennsylvlllliu Rule of Appdlute Procedure 1311(b) provides that un Order muy be nmended lmd uppeulcd ifit includes the statement prescribed by 42 Pu. c.S.A, *702(b) regarding interlocutory nppeuls by permission. 15. lfthe Court helieves thut its Order is interlocutory, it Is appropriute for interlocutory appenl hy permission becnuse the cuse "involves u controlling question of law as to which there is suhstunlialground for ditlerence of opinion und .,. Ull immediutcly appeal from the Order may muterinlly udvunce the ultimute terminntion of the mUlier." 16. Therefore, ill the ulternntive, Plaintiffs would usk lhut the Court amend its Junuury 15, 1999, Order to indicate thutlhe Court is of the opinion that the Order involves a controlling question of luw as to which there is substanliulgr<lunds for difference of opinion, such that un immediate appenl may l11U\erially ndvunce the ultimate terminalloll of the mailer. 17. Finally. Plaintiffs nced to tile their NOlice of Appeul within thirty (30) days of the Januury 15. 199<), Order. Consequently. time is of the essencc and the Plaintiffs rcspectfully requcsl that this Honorable Court ccrtify the January 15. 19<)<). Ordcr ns linal or certify it for uppcul sllthal u Notice of Appeul cun he tiled by Fchruury 12. 19<)<). Ihn;lIm...'" N /4I1JJ7 --1- f)/~ , , .~ ?i; - ~ ) '~ i - ~ c.:a '~ t:' ~:1S \ ' ~k, , :s:: .. ':1: ~, If. 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'~~ I ~ i..cf I ') ~t\ :;); I, ~' ~(;~ ca ~~I "- ~ r:" ~ '~, N " ~~ PYS510 Cumberlp,'1d county Prothonotary's OUJce Page 1 ",11 Case Inquiry ,. 1997-04669 ROBBINS SETH FITZGERALD ET AL (vs) CUMB CO CHILDREN & YOUTH SERV Reference No" t Filed""". ,: 8/28/1997 Case Type,. ,..: WRIT OF SUMMONS Time, '1'.'.' ,: 12133 JUd~ment '1' , . , : ,00 Execut on Date 0/00/0000 Jud e Ass gnedl OLER J WESLEY JR Jury Trial"" ~!~_~~~~_~~~c~~se Comments _____________ aI~~~~egr~ai~; 0/00/0000 Higher Crt 2,: ....................................**........................................** General Index Attorney Info MINOR PLAINTIFF DRUBY RICHARD B PLAINTIFF DRUey RICHARD B PLAINTIFF DRUBY RICHARD B DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P ROBBINS SETH FITZGERALD ROBBINS ERIN ROBBINS KERRY CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES C/O GARY I SHUEY 16 WEST HIGH STREET CARLISLE PA 17013 CUMBERLAND COUNTY OF C/O NANCY A BESCH CHAIRMAN CUMB CO COMM - CUMB CO CTHSE CARLISLE PA 17013 SHUEY GARY I CUMB CO CHILDREN & YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 RUPP DIANNE CUMB CO CHILDREN & YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 RUNYON CHRISTINA CUMB CO CHILDREN & YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 HOVERTER WENDY B CUMB CO CHILDREN & YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 ORR DARLENE CUMB CO CHILDREN & YOUTH SERV 16 WEST HIGH STREET STE 200 CARLISLE PA 17013 FITZGERALD SUSAN STATE CORRECTIONAL INST MUNCY POBOX 180 ROUTE 405 MUNCY PA 17756 S'l'E 200 DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT MARCELLO DOUGLAS B MISLITSKY RICHARD P DEFENDANT Y ..........**........**...................w.........................**........... . Date Entries . .............*...**............................................................. 8/28/1997 9/04/1997 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- SHERIFF'S RETURN FILED Litigant,: CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES SERVED : 9/03/97 WRIT OF SUMM Costs.",: $23,10 Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 --_..-----------------_..-------------------------------------------- SHERIFF'S RETURN FILED Litigant,: CUMBERLAND COUNTY OF SERVED : 9/03/97 WRIT OF SUMM Costs,.,,: $8,00 Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 -------.-----------------------------------------~------------------ SHERIFF'S RETURN FILED Litigant,: SHUEY GARY I 9/04/1997 9/04/1997 J) / Cumberl~~d county Prothonot8ry's Off[ce 'vii Case Inquiry , 1997-04669 ROBBINS SETH FITZGERALD ET AL (vs) CUMB CO CHILDREN' YOUTH SERV Reference No,,~ Filed",..."l 8/28/199~ C8se 'l'ype,..,,~ WRIT OF SUMMONS Time,'l......l 12:3 JUdgment '1' , , , ~ ,00 Exocut on Date 0/00/000 Jud e Asa gnod I OLER J WESLEY JR Jury Tri81 , . , . ~~~-~~~~-~~~cc~se Comments _____________ fligE~~egr~8~~i 0/00/0000 Higher Crt 2, I SERVED ~ 9/03/97 WRIT OF SUMM Costs..,' ~ $8.00 pd BYI METZGER WICKERSHAM KNAUSS ERB 09/04/1997 ----------------------.--------------------------------_..----------- 9/04/1997 SHERIFF'S RETURN FILED Litigant, ~ RUPP DIANNE SERVED : 9/03/97 WRIT OF SUMM Coats, ,.,: $8,00 Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 ---------------.---------------------------------------------------- 9/04/1997 SHERIFF'S RETURN FILED Litigant,: RUNY9N CHRISTINA SERVED : 9/03 97 WRIT OF SUMM Coata,.,,: $8,00 Pd BYI METZGER WICKERSHAM KNAUSS ERB 09/04/1997 ------------------------------------------------------------------- 9/04/1997 SHERIFF'S RETURN FILED Litigant,: HOVERTER WENDY B SERVED : 9/03/97 WRIT OF SUMM Costa",.: $0.00 Pd By: METZGER WICKERSHAM KNAUSS ERB 09/04/1997 -----------------------------.-------------------------------------- 9/25/1997 CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009,22 ___________________.M_______________________________________________ 10/02/1997 CCC'YS AND ITS' EMPLOYEE'S GARY SHUEY DARLENE ORR DIANNE RUPP WENDY HOVERTER AND CHRISTINA RUNYON (NOW ROWLAND) MOTION TO QUASH SUBPOENA OF ERIN AND KERRY ROBBINS PLAINTI~FS ON BE HALO OF THEMSELVES AND S F ROBBINS A MINOR FOR PRODUCTION OF CONFIDENTIAL CCC'YS DOCUMENTS AND RECORDS -----------------------.-------------------------------------------- 10/06/1997 RULE TO SHOW CAUSE - DATED 10/2/97 - IN RE MOTION TO QUASH ISSUANCE OF A SUBPOENA FOR PRODUCTION OF CONFIDENTIAL CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES DOCUMENTS AND RECORDS - RULE IS ISSUED UPON PLAINTIFF R~TURNABLE AT HEARING 10/30/97 1:30 PM CR 5 - BY WESLEY OLER JR J - COPIES MAILED 10/7/97 -------------------------------------..--..-------------------------- 10/10/1997 MOTION FOR PROTECTIVE ORDER UNDER PA RCP 4012(A) AND STAY OF SUBPOENA TO PRODUCT DOCUMENTS UNDER PA RCP 4013 ---------------------.---------------------------------------------- 10/15/1997 ORDER OF COURT - DATED 10/15/97 - IN RE MOTION FOR PROTECTIVE ORDER UNDER PA RCP 4012(Al AND STAY OF SUBPOENA TO PRODUCE DOCUMENTS UNDER PA RCP 40 3 - RULE IS ISSUED UPON PLAINTIFFS RETURNABLE AT HE~RING 10/30/97 1:30 PM CR 5 - BY J WESLEY OLER JR J COPIES MAILED 10/15/97 -------------------------------------------------------------------- PRAECIPE FOR RULE TO FILE COMPLAINT BY RUBY D WEEKS ESO ------------------------------------------------------------------- RULE TO FILE COMPLAINT BY LAWRENCE E WELKER PROTHONOTARY ------------------------------------------------------------------- PLAINTIFFS' RESPONSE TO PENNSYLVNAIA DEPARTMENT OF PUBLIC WELFARE'S MOTION FOR PROTECTIVE ORDER AND STAY --..---------------------------------------------------------------- 10/27/1997 PLAINTIFFS' RESPONSE TO CUMBERLAND COUNTY CHILDREN AND YOUTH AND ITS EMPLOYEES' MOTION TO QUASH SUBPOENA ----------------------------------------------------------------_.~- 12/02/1997 ORDER OF COURT - DATED 10/30/97 - BY J WESLEY OLER JR J - COPIES MAILED 1213/97 ---------------------.---------------------------------------------- MOTION TO COMPEL PLAINTIFF TO FILE A COMPLAINT ------------------------------------------------------------------- CERTIFICATE OF SERVICE -----..--.----------------------------------------------------------- CERTIFICATE OF SERVICE ------------------------------------------------------------------- RULE UPON PLAINTIFF TO FILE A COMPLAINT - DATED 3/4/98 - IN RE MOT10N TO COMPEL PLAINTIFF TO FILE A COMPLAINT - RULE IS ISSUED UPON PLAINTIFFS RETURNABLE WITHIN 30 DAYS OF THE DATE OF THIS ORDER BY J WESLEY OLER JR J - COPIES MAILED 3/5/98 ---_._-------------------------------------.------------------------- 4/02/1998 COMPLAINT - CAUSE OF ACTION UNDER 42 U,S,C,1983 - BY RICHARD B. DRUBY, ESQ. PYS510 10/17/1997 10/17/1997 10/27/1997 2/26/1998 2/26/1998 2/26/1998 3/04/1998 Page 2 ) ,(' j,) PYB510 1997-04669 cumberl,nd county ''\r il Caa(j ROBBINS SETH FITZGERALD ET Prothonotary' a O~,!.J.ce Inquiry , AL (va) CUMB CO CHILDREN & Page 3 YOUTH SERV 8/28/1997 12133 0/00/0000 0/00/0000 Reference No" 1 Filed"".".: Caae Type. , , , . 1 WRIT OF SUMMONS Time, '1" .. .. 1 JUdgment 'l' . , , 1 ,00 Execut on Date Jud e ABa gned 1 OLER J WESLEY JR Jury Trial.", DiB oBed Doac, 1 Dia~oaed Date, _________.___ Caae Comments _n__________. lIig er Crt 1,: -----------------------------------------~!~-~~-~~~-~:!_----------- 5/20/1998 5/22/1998 5/22/1998 6/01/1998 6/01/1998 6/01/1998 6/12/1998 7/10/1998 9/21/1998 1/15/1999 2/11/1999 PRELIMINARY OBJECTIONS OF DEFENDANTS ------.----------..---------------------.----------------------------- PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFENDANTS BY DOUGLAS B MARCELLO ESQ -------------.------------------------------------------------------ PRAECIPE FOR WITHDRAWAL OF APPEARANCE FOR DEFENDANTS BY RUBY D WEEKS ESQ ------------------------------------------------------------------- PLAINTIFFS' RESONSE IN OPPOSITION TO PRELIMINARY OBJECTIONS OF DEFENDANTS ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR ARGUMENT BY RICHARD B DRUBY ESQ DEFENDANTS' PRELIMINARY OBJECTIONS ------------------------------------------------------------------- PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANT - SUSAN FITZGERALD - BY DOUGLAS B MARCELLO ESQ ------------------------------------------------------------------- ENTRY OF' APPEARANCE FOR ALL DEFENDAN'I'S BY RICHARD P MISLITSKY ESQ ------------------------------------------~------------------------ SHERIFF'S RETURN FILED Litigant,: FITZGERALD SUSAN SERVED 17/1/98 SC! AT MUNCY PA - LYCOMING COUNTY Costa,.. ,I $60,00 Pd BYI THOMAS, THOMAS & HAFER 07/10/1998 ------------------------------------------------------------------- CERTIFICATE PREREQUISITE TO SERVICE OF A SUBPOENA PURSUANT TO RULE 4009,22 --------------------------------------------..---------------------- OPINION AND ORDER OF COURT - DATED 1/15/99 - IN RE DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' cOMPLAINT - PRELIMINARY OBJECTIONS ARE SUSTAINED AND PLAINTIFFS' COMPLAINT IS DISMISSED AS TO DEFENDANTS - BY J WESLEY OLER JR J - COPIES MAILED 1/19/99 ------------------------------------------------------------------- ORDER - DATED 2/11/99 - IN RE MOTION FOR DETERMINATION OF FINALITY UNDER PA RAP 341(CI OR IN THE ALTERNATIVE MOTION TO CERTIFY INTERLOCUTORY OROE~ FOR APPEAL - BY J WESLEY OLER JR J - NOTICE MAILED AND COPIES PERSONALLY GIVEN 2/11/99 _ - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - ..................................**...................k*........................ . Eacrow InfoL'mation · . Fees & Debits Bea Bal Pvmta/Ad1 End Bal · ..............*.................f........,......,................*...*.......... WRIT OF SUMMONS TAX ON WRIT SETTLEMENT JCP FEE 35,00 35,00 ,50 .50 5,00 5,00 5.00 5.00 ------------------------ 45.50 45,50 ,00 .00 .00 ,00 ~.----------- ,00 ................................................................................ . End of Case Information * ................................................................................ .,' " \ " "Cor,\) . .'- f'~' \'" I " \, \.. .,.. d 'rr' \... ,...'..', \ ' " \ ' 'I 1\','1 \1an ".' "".' \ 'II-f'. ,I. \n Tl ~,\ nil I' , ,,\ \ ( , , p,), and 11\', ,.! ,:' ," '. , :1, t., ,1901... Fl 0,'1 of ,..t 1 (' "'I. 1l1i, . ~(.t v":" r-. j;[.c, ~v"" ,~ U ~rnlh.;l\o\arV ();]1 , . . ! 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'" <=" ~~ - ~ j . .. .;; - /'8 'I Y IN THE COMMONWEALTH COURT OF PENNSYLVANIA NOTICE OF DOCKETING APPEAL Docket No, 0405 C,D. 1999 Filed Date, 02/12/99 ReI ROBBINS v, CUMBERLAND CO. CHILD, & YOUTH Lower Court No.1 9;-4669 A Notice of Appeal, a copy of which is enclosed, from an order of your court has been docketed in the Commonwealth Court of Pennsylvania, The docket number in the Commonwealth Court is endorsed on this notice. The Commonwealth Court docket number must be on all correspondence and documents filed with the Court, Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the prothonotary of the Commonwealth Court, The complete record, including the opinion of the trial jvdge, should be forwarded to the Commonwealth Court within forty (40) days of the date of filing of the Notice of Appeal, Do not transmit a partial record, Pa, R,A.P. 1921 to 1933 provides the standar.ds for preparation, certification and transmission of the record, The address to which the Court is to transmit the record is set forth on page 2 of this notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or cOlmsel indicated on the proof of service accompanying the Notice of Appeal, The appearance of all counsel has been entered on the record in the Commonwealth Court, Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa, R,A,P, 907(b), Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court, (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases) . The addresses to which you are to transmit documents to this Court are set forth on Page 2 of this Notice, If you have special needs, please contact this court in writing as soon as possible, Lower Court Judge: Honorable J, Wesley Oler Jr, Attorney: Richard B, Druby Attorney: Richard p, Mislitsky Attorney: Douglas B. Marcello Notices Exit: 02/17/99 Prothonotary ciL/G ,.. ,. REV~"'D A>>RXI. at, Un FILING COCOH!NT! - COP I!! ANn r~ES OR~CI~ ANn O~ COpy Motion for Extension (Lst - by tetter) 2nd Extension (By Motion) Jrd and After (By Motion) praecipes Motion to OLsml.ss/Q~ash Motion for Supersedeas Designation of Contents of a Reproduced Record (along with Statement of Issues) Petition to Set Aside Nomination Petition Notice or Entry of Appearance (w/Cert. of Service) Petition for Review (Original JuriSdiction) Petition for Review (Appellate JuriSdiction) Petition for Pe~ission to Appeal Petition for RevieW/Appeal (N\lnC 'Pro Tunc) lJLl(b) Petition for Review Petition for Reconsideration for Single JUdge Reconsideration/Reargument (Nunc Pro TUnc) Petition to Withdraw Representation (w/Certificate of Service , Proposed Order) Discontinuance of Action Up to Argument - By Praecipe After Arqument - By Petition Continuance StipUlations Pe~ission to Submit Arg. via Briefs Motion to Stay Motion to Enforce a Court Order Answer In or Reply To New Matter (Submit New rn~o.) Status Report Finding of Fact Summary Judgment Notice of Appeal to Supreme Court Notice. of Intervention m $LO $25 --- --- $J5 --- $J5 $55 $55 $55 $55 $15 $L5 --- --- --- --- --- , --- --- $15 --- ORIG%N1L ~ TWO COPIZ8 Petitions for aeview (ONLY Finance and aevenue) ORIG~ ANn TKR!! COpI!S Motion for: (Summary Judgment, JUdgment on the Pleadings. Summary Relief) Preliminary Objections ,:IGRT COP I!! Reproduced aecord Us --- --- --- ORIG%NAL ~ prY~2rN copr~s AppLication for aeargument or Reconsid. (En Bane) Answer to Application for Reargument Motion to PUblish Opinion $15 ,--- --- 2B.1i'IKJ.L AND JlOtrRT2rH COPl:2S Briefs (Need to be BOUND ON LEFT SIDE) If stapled. staples must be Covered --- . . d. I..{ ,.'A ~< ,... .... t':. - ~ j:'l, .. . I).r (I - ~~r' - I...J .:_~ ~. (~~; ti. I'. i( :;i q;:j ~. ~(", o:l ;. '(i;i t:- .\\01 ,- ! /1 U;',U ~ :s1~ t~ a 15 0'\ .:n -- , ", " , I, .' . <, , , , , " " , .. .' , " 'II , . , " I :) , , " .' , ' ',' , . , , , I.", " '\ I' ,} " . ,,' ,~, .. ,., . .. " " ~' ," 11'1 'J 1\ 111'1( (I~ I." -" SETH FITZGERAl.D ROBBINS, II minor. by ERIN IWBDlNS and KERRY ROI3BINS. his parents and natural guardians, and ERIN ROBBINS nnd KERRY ROBBINS. in thl!ir own right, IN TilE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintilli; v. CIVIL ACTION. LAW CUMBERLAND COUNTY CHILDREN AND YOUTH SERVICES, thl! COUNTY OF CUMBERLAND, GARY 1. SHUEY, Individually and in his Ollicial Capacity as Agency Administrator for Cumberland County Children and Youth Services. DIANE RUPP, Individually and in her Official Capacity as Case Work Supervisor for Cumberland County Children alld Youth: Services, CHRISTINA RUNYON, Individually and in her Ollicial Capacity as Case Worker for Cumberlnnd Counly Children and Youth Services, WENDY B, HOVERTER. Individuully and in her Official Capacity as Program Director of Cumberland County Children and Youth Services, and DARLENE ORR. Individually and in her Ollicinl Capacity as Program Di~ector for Cumberlalld County Children and Youth Services. DetclIdants No, 97.4669 CIVIL TERM MEMORANDUM OF LA W OF MOVANT. DEPARTMENT OF PUBLIC WELFARE History and Backvround On September 23. 1997, Plaintills in this case filed a Notice to Take Deposition and served upon the Department of Public Welfare (Department) along with it a Subpoena to Produce Documents dated August 28, 1997, requesting Complete copies of any and all records regnrding Cumberland County Children and Youth Services' handling of reported abuse of Shawn. Seth and/or Stephen Fitzgerald including. but limited to, 11. TillS ('OUIU SIIOIII.I) 1I1tANT TIll': IlI'.PAlnMENT'S ItEQUEST FOR A PIWTE('TIVI' ORIl1'lt I'IHlllIlIlllNli IllsmVFIW OF ('ONFIIlENTlAL INFORMATION UNDElt TIlE ('PSI.. Acconllng tOPII.lt1 ',P. 0\012(11), "ITI hc court IllIlY Illnke IIny ordcr which justice requires to protcct n pllrty or pcrNllll frlllll unreusollllhlc 1lllllllYlll1CC, emhnrrnssment, oppression, burden or expense."," /.11. Onc llfthe uVlIlIlIhle rcmedles is "tllllt the discllvcry",bc prohibited[.]" Pa.R,CI'. 4012(11)( \), Ordcrilll! prodll<~tl"lIof cOlllhlclltlll1 documents under the CPSL would cause unrcusonllhlc hurdcn IIl1d opprcsslollOIl thc Ilcpllrtmcnl. A~ dlscuN~ed .l/IfI'lI. plllilltlffs hllvc IIlrclldy hccn given all documents in the Department's posscsslon which lire public rccords or thut rellltc 10 Scth Fitzgerald Robbins as a subject of the report, All other rcqucstcd docull1cnts were prepared in conlidcncc under the CPSL and relate to other persons as subjccts, Disclosure of this Inlilmlation would destroy the privacy of the indivldunls to wholl1thc docull1cnts rdllte, In nddition.the eventual disclosure of reports to non- suhject persons would influcncc reporters und hamper thc neccssary datu collection and Investiglltion of child uhusc hy the Dcpllrtl11enl. Perlimnunce cvululltions of ('ounty ugcncies. especially relative to a child fatality, must be completed in un IItl110sphere which assures conlidentiality, These evaluations, which examine the circumstances surrounding II child's dcnth and inquire illto every aspect of the County opera led children und youth services to prevent such tragedies, would suffer if the reports were subject to puhlic disclosure, Thc calldor necessary to investigate and improve State and/or County child protective services to prevent child abuse and fatalities would be absent if the documents were suhject to public scrutiny and could serve as the basis for financial liability, Th(' Department's interest in detecting and halting child abuse and in preventing child 4 documents will depend on the ultimate disposition of that motion, S, I would like to toke this opportunity to remind you that the enclosed chUd abuse reports remain confidential except as to your client. Any further disclosure of the documents or their contents to unauthorized persons is a violation of the CPSL and liS regulations. 23 Pa,C,S, fi 6349(b), SS Pa,Code fi 3490.102. If you have any questions, or would like to discuss this malter, please do not hesitate to cal1 me. Sincerely, Daniel Fellin Assistant CoUnsel , , Enclosure , ' , ' , ' '" " j" " , CERTIFICATE OF SEItVlCE I hereby certify that I am this day serving thc forcgoing Memorllndum of Lllw, upon the pllJ1les in this case by mailing a true and correct copy to either the pnrties directly, or to their counsel of record at the addrcsscs shown below by first c1nss mail, postage prepuid: Cumberland County Childrell and Youth Services c/o Gary 1 Shuey Suite 200, Human Services Buildillg 16 West High Street Clll'lisle, PA 17103 Gary L Shuey, Agency Administrator Cumberland County Childrell and Youth Services Suite 200. Human Services Building 16 West High Street Clll'lisle, PA 17t03 Christina Runyon, Case Worker Cumberland County Children and Youth Services Suite 200, Human Services Building 16 West High Street Clll'lisle, PA t7103 Dlll'lene Orr, Program Director Cumberland County Children and Youth Services Suite 200, Human Services Building 16 West High Street Clll'lisle, PA 17103 date: (./l"l/f? County of Cumberland c/o Nallcy A. Besch, Chnilman Cumberland County Commissioners Cumberland County Courthouse One Courthouse Square Carlisle, PA 17103 Diane Rupp. Case Work Supervisor Cumberland County Children and Youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17103 Wendy B. Hoverter, Program Director Cumberland County Children and Youth Services Suite 200, Human Services Building 16 West High Street Carlisle, PA 17103 Richard B, Druby, Esq. Metzger, Wickersham, Knauss & Erb, P,C, 3211 North Front Street P,O. Box 5300 Harrisburg, P A 17110.0300 Attomey for plaintiffs DanIel Fellin, Assistant Counsel Department of Public Welfare Office of Legal Counsel Room 305, Health and Welfare Building Harrisburg, PA 17105.2675 Supreme Court ID # 76621 phone: (717) 783-2800 . ~ , , , , , , , ' . ,I, " , ' , , , " Ii! , , , I t , , " It; " , , , ' , , , ' , , I~ t~1 ~ .uf g ~'~ ' ," ~ ' i!t ~~ 'U ~~"" ~ ~ ' ~l> ~ iCl .~ ~ ~> i i~' ~ f~ ~~ ~ :>- > ~ '.~ '~ i '0 i ~ ~ i ~ ~ ~~ ~ 8 ~!I~ o~ol<! JI~~JI~~J ~ J e ! ~ ::;8 '~~ I:i S~ 1~111 1~lllliill.;lli;II;;JI. ~~ ! 8B iil:!l~ri 'iQ ~ iQ ~~iQ .i::'iQ ]~iQij ~ ~~ ~~l~i ~~~JJulfJSil!llltlll!ii ~! $Ii~ :>- i I:>-i 1:>-1 :>-i~~> u:>- I 'I ,I ." " I',. ;' ' , , , , , ' " I,' I , , '" '-.1' I 'I; " ' , ' ,I,. t I, '. I, " I" , , IllUrteen e~eeptions to lis genernl contidentlnllly provisions: /lone lire lIppllcnble hcre, ~ 23 Pa.C.S, ~6340(u). 55 PII Code ~3490 91, In IIdditlon, subjects ufrepurlS mny receive (i) rep1ll1K by mandated reporlerK IUld continnlltions prepllred under 2.1PIICS ~().11 3; nnd (il) child nbuKe Information contained in the Stlltewide eenlrulre[(isler, liS 10n[(lIs thc idcntily oflhe rep1ll1er is redllctcd, 23 l'nCS, ~6J40(b), (c): 55 I'll Codc ~~J.\90l) I (11)( 12), 341)0,104 The Stlltewidc centrul register consists of reports reccived and c1l1ssilied liS eithcr llmnded 01' indiclltcd 23 I'IICS ~IJJJ 1 .. Plaintitl's lire not cnlitled 10 reports or report summllries under 23 Pa,C.S, ~631J or inlormlltion in the Statcwide celllmlrcgister where the subject is anyune uthcr Seth Fitzgerald Robbins--includillg thuse where the subjecl is one of his siblings The CCC&YS recognizes that the Cl'St and its regulations allow the release of cunlidential inturmlltion tu n court of competent jurisdiction pursullnt to a court ordcr, 23 Pa.c.S, ~1J340(a)(5). 55 I'll Code ~3490,c)I(a)(5). and docs not dispute lhatthe Cumberland County Court of Common Pleas has jurisdiclion to do so in this case, Howevcr, for the reasons stated below, the CCC& YS believes that a Protective Order prohibiting discovery of the conlidential infonnation is appropriate here, Courts in Pennsylvania have also recognized that statutory provisions will prohibil discovery of contidential intormation; especially information concerning non-parties to the lawsuit. See. e.g. Leonard v, Latrobe Area Hospital. 379Pa, Super. 243, 549 A2d 997 (1988), The Third Circuit Court of Appeals, interpreting Pennsylvania law, has found that conlidenlial documenls should not even be produced lor ill mil/era inspection Hahnemann Univcrsity Hosp, v, Edga[, 74 FJd 456 (Jrd Cir, 1996), The Pennsylvania Commonwealth Court has held that conlidential documents under the CPSL are privileged and undiscoverable under I'a R,C I' 400ll, even when the documents relate 10 a detendant, if the documents include intormation relating to any non-party, S,M. v, Children and Youtb Services of Delaware ('tv.. Pa Cmwlth, ---,686 A2d 872 (11)<J6) ,.-. =-......'r-;-.t.....- . Under I'A RuleK uf('lvill'roeel!ure 400] I and -10(1) IInl! 42 I'll C S, (1,107 IInd 2] l'aC S 6]40(b) pllrtieK to IIn uetionlllllY receive dueulIlenh rel\ue~led n-Ulll Cuunty A!lencle~ when the requesters arc subj~'Cts ufthe repur1s being reque~led "Subjects of the repurt"Is dellned In 2] l'aCS 6303 a~ any child, parent,guordinn or other per~onre~pon~ible lor the weltitre ufthe child ~ in the report, "1'erBon re~pontilble lor tbe child'~ weltitre"ls delllled In 6]0] as a person providing permanent or temporary care of the child In lieu ofparenlul control No dellnltions lor these terms were lbund In the PA Rules of Civil Procedure. Rules 400ll, 40(1), nnd 42 l'a,('S 6307 reter to parties In a suit or action. 23 l'a,('S, 6140(b) docs not reter to an IIctlon being tiled, Here, althuugh now the Robbins arc the adoptive parellts of a child who is a party to tbis action, at the time of any CCC& YS Involvement with this case, they were llil1 parties to the juvenile procecding nor were they subjects of these reports, Rather, they were with parental agreement temporary relative caretakers of the then-dependent child. Admittedly, they are now the parents ofthe child, When discovery has been challenged, the Cumberland County Court of Common Pleas has required the challenger to prove any privilcge of protection, Grace Evan, Lutheran Ch, v Spiker, 32 Cumberland L.1, 517 (1981). The Pennsylvania Superior Court holds that the courts have final say over what infonnation is released to those requesting it, Comm, ofPA v, Hess, 270 Pa. Super. 501, 4t I A,2d 830 (1979). The United States Supreme Court held in a criminal case involving discovery requests information material to the requester and protect "the Commonwealth'G compelling interest in protecting its child-abuse intbrmation" the records of Children and Youth Services should be handed over to the court for in camera review and requested on an individual basis, Pennsvlvania v, ~.k, 480 U.S, 39,60; 107 S.c!. 989 (1987), For the same reasons, the Commonwealth Court of Pennsylvania held that infonnation would be released unly to the parties to the suit, a minor child and the taster parent accused of abusin~ ,..,u' u._ -~.......-~......- p :-.0-..... :_.~... .....';"'. ~mIIU\IlJ.ANIl....lmIm..,gm.pJU\/1 AND YO\T1'II SI!RVICI!S fllJJllY ~ CONPIDI!NTIALITf. I. CASE RECORDS All Asency case rRcordo, octivp and inective, sholl be confidontial pursuant to The Juvenile Act as Amended, The Child Protective Services Law, and Dapartmant of Public Welforl! Resulationll thuroto. All casl! notes ore confidential and AbAll rell\4in with the Asonc)', Case records shall not he romoved from the office without prior approval from supervisors/admini strator. Coso records ahol t not be turned over to an unsuthorized individual to review or read. II. RELEASING INPORMATION Any roprl!sentative of another esency, attorney, spokesperaon, or client 14 years of ase or older who has not been adjudicatad incompetent may request acceu to his/her own client rocord. Client is interpreted to mean enl parent or suardian of a child in custody or receivins Agency sorvices past and preaent. Access is dofined es physical examination of the record but does not include or imply physical possession of the records themselves or copies thereof. The reprosentative of another asency. attorney, spokesperson, or client must request access in writins. The request shall include the following: reasons tor the reouest, spocific information requested and names of the persons about whom the information is oought, t e ur oso or use which will be de of the information, the .isnature(s) of the person s rl!qul!st'ng t I! informatlon, t I! aisnature(s) of the client(s), and the date when thl! request was signed, Access ahall be denied to limited portiono of the record only -- (A) If it is determined that disclosure of specific information concerning treatment will constitute a substantial detriment to the client, (8) When disclosure of specific information will reveal the identity of persons or breach the trust or confidentiality of persons who have provided information upon an agreement to maintain their confidentiality, (C) If the request is to reveal the identity of a child abuse referral source or identity of the person(s) cooperating with a child abuse invastisation. (D) Access to child abuse records is controlled by 11 PS S 2201 et aeq, and Child Abuae Regulationo 55 PA Code 3490.37; 3490,70; 3490,91; 3490,94; and 3490.104. Dependency records ore controlled by 42 PA CSA 6301 et, soq. and Poster Care Regulations 55 PA Code 3700, Access to adoption records is controlled by 23 PA CSA S 2101 et seq. (E) A parent I'Oquesting information can only receive information on self and their child(ren) snd not on the other parent unless that othor parent haa provided a written consent for release of information, Information in the casp. rl!cord will be reviewed by Agoncy staff and sny of the above information witl bl! deteted or withheld. a..tt ueA vne-t\ r J ,~ '';~~.._~ Pot lowing the receipt of a written request to hav~ acceDa to a record, the Agency Administrator or dulgnee shall talta action In a timely manner to grant access dependent upon the ~~igl.'"de5 "f the particular situation, i.e, such a., but 1I0t limited to, an emergency court hearing, Should it b~ decided that access will be denied in whate or part, notification to that p[fect will be provided to otl parties. Appeals of such 0 decision shalt be limited to a request for a Court Order from the Clmberland County Court of Common Plea., Juvenile Division, When access is granted, the appointment time to review the record. shall be hetd within two (2) normal working ,lays of the determination to grant acceDS, Appropriate staff will be available to answer any questions the representative of another agency, atto1'ney, spokesperson, or client may have regarding th.. record, Appropriate staff shall Include the ca.eworker and his/her superviou' and may a160 include the cumberland County Children and Youth Servicp' administrator or designee and/or the Cumberland County Childre" and Yout: Sorv ices I 801 i c i t.or. The ropresentat i 'Ie of another agency, attorney, spokesperson, or client may not t'emove any part of the record or make copie6 of anything in the record, Copioo .hall only bo provided by direction of an Order of Court or when the Agency'. records are subpoenaed and Agency i5 directed to turn over record. by an Order of Court, If the representative of the other agency, attorney, spokesperson, or client wishes to ente1' a written reaction qualifying or rebutting information in the record which they believe to be erroneous or misleading, they shall hove the right to prepare such a statement for inctusion as a part of the record, The representative of the other agency, attorney, spokesperson, or client's written reaction shall accompany all released records, Copying costs incurred by the Agency shall be assessed at 20 cellts a aingle page or such costs which shall be cletermined from time to time to compensate the Agency for coats of supplies and equipment in addition to the time of clerical employee, charged at the pro-rated hourly rate of employee. An indigent person may petition the Cumberland County Court of Common Pleas for an Order waiving such costs. III, REOl~STS POR DISCOVERY OP RECORDS 1~ CRI~I~AL PROCEEDINGS, DPW APPEJ.LS. OR OTHER COURT ~ATTERS 1. An attorney authoriled by a party or a party to an abuse report (includes, under present law. the child, either parent, a guardian or guardian ad litem of the child, or an alleged perpetrator of child abuse) may receive upon written request to Cumberland County Children and Youth Services a copy of the CY-I,?, Report of Susl'ectl'd Abuse, and CY-I,B, Report of Child Abuse Investigation, 8a well as a copy of any supplemental report filed with DPW, 2, Por any attorney for" party, ail)' part.y t.o .,n abuG" report, or "lleged perpetrator to receive any other information from the files, the procedure in Section 11 above muot. bl.' followed or an Order of Court obtained after appropriRu motion, response, and possible argument to the Court and appropriate expungement o! protected confidential information, " .