BUERHLE v. HAHN et al

Filing 18

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ANITA B. BRODY ON 1/14/2014. 1/14/2014 ENTERED AND COPIES VIA ECF.(mo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATHY J. BUERHLE,
Plaintiff.
v.
HAHN, et al.,
Defendants.

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CIVIL ACTION
No. 13-3474

January 14, 2014

Anita B. Brody, J.
MEMORANDUM

Plaintiff Kathy J. Buerhle (“Buerhle”), Administratrix of the Estate of Sean Buerhle,
brings suit against Defendants, Pennsylvania State Police Troopers, Trooper Hahn and Trooper
John Doe (collectively, the “Troopers”) under 42 U.S.C. § 1983, alleging a deprivation of
substantive due process under the Fourteenth Amendment. Additionally, Buerhle brings a
wrongful death claim, 42 Pa. Cons. Stat. Ann. § 8301, and a survival claim, 42 Pa. Cons. Stat.
Ann. § 8302. I exercise federal question jurisdiction over Buerhle’s § 1983 claim pursuant to 28
U.S.C. § 1331, and supplemental jurisdiction over Buerhle’s state law claims pursuant to 28
U.S.C. § 1367. Currently before me is Trooper Hahn’s motion to dismiss. As tragic as the facts
of this case may be, I am required under the law to grant Trooper Hahn’s motion to dismiss.
I. BACKGROUND1
At the age of 22 years old, Sean Buerhle (“Sean”) took his own life. Plaintiff Kathy J.
Buerhle is Sean’s mother and the administratrix of his estate. Prior to his suicide, Sean had a
history of mental health issues, including anxiety and debilitating panic attacks. Sean was under

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All facts are taken from the Complaint and construed in the light most favorable to Buerhle. See
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)

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the care of a mental health professional and was taking Cymbalta, a prescription drug intended
for the treatment of major depression disorders. Sean had a family history of depression and
suicide. Both Sean’s father and cousin had committed suicide. At the time of his death, Sean
was a student at Drexel University and an employee of Weis Supermarket (“Weis”). He was
living with his mother, Buerhle, and his stepfather.
On August 8, 2011, Sean left home to go to work the midnight shift at Weis. On August
9, 2011, Sean did not return home after work. Buerhle called Weis and learned that Sean never
arrived at work. Buerhle became concerned for Sean’s safety. She called his cellphone, but
Sean did not answer. Additionally, Buerhle contacted Sean’s friends, but none of them had seen
him. Sean’s stepfather then contacted the local State Police Department to file a missing
person’s report.
On the night of August 9, 2011, Pennsylvania State Police Troopers, Defendants Trooper
Hahn and Trooper John Doe arrived at Buerhle’s house to investigate Sean’s disappearance.
Buerhle informed the Troopers of Sean’s mental health issues, his family history of depression
and suicide, and that Sean’s entire bottle of Cymbalta was missing. The Troopers refused to ping
Sean’s cellphone, which is a method whereby a cellphone service provider can pinpoint a
subscriber’s last known location by determining the closest cellphone tower that was accessed by
the subscriber’s cellphone. The Troopers provided Buerhle with the case number K03-1796778,
and led Buerhle to believe that they had properly reported and submitted a missing person’s
report.
Following her discussion with the Troopers, Buerhle investigated Sean’s bank, cellphone,
and computer records, which reflected that Sean had not withdrawn any money or used his
cellphone after disappearing. Buerhle also contacted all local hospitals and posted numerous

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missing person signs in her neighborhood.
On August 11, 2011, Buerhle went to the local State Police Department to obtain a copy
of Sean’s missing person report in order to notify local media about her son’s disappearance.
Buerhle gave the station dispatcher the case number provided by the Troopers. The dispatcher
informed Buerhle that that the Pennsylvania State Police Department had no information in its
system associated with case number K03-1796778. A trooper then interviewed Buerhle and filed
a missing person’s report. Shortly after leaving the station, Buerhle went to the Upper
Perkiomen Police Station and dropped off missing person fliers.
On the morning of August 12, 2011, various members of the Pennsylvania State Police
Department arrived at Buerhle’s home to search Sean’s room, and created a search team to locate
Sean. Around 11:30 p.m. on August 12, 2011, members of the search team notified Buerhle that
they found Sean’s body in the woods with a suicide note. Members of the team informed
Buerhle that they located Sean’s body after pinging his cellphone to ascertain his last known
location and then using K-9 units to ascertain his exact location. After performing an autopsy,
the Montgomery County Coroner’s Office concluded that Sean committed suicide sometime
between the night of August 11th and the early morning of August 12th.
The Pennsylvania State Police Department has a protocol known as the Missing
Endangered Person Advisory System (“MEPAS”), which rapidly disseminates information about
a missing person to the public and other law enforcement agencies. Sean’s disappearance met
the criteria under MEPAS for issuing a missing endangered person alert. Despite this, the
Troopers failed to request an issuance of a MEPAS alert, and failed to properly file a missing
person’s report.

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II. STANDARD OF REVIEW
In deciding a motion to dismiss under Rule 12(b)(6), a court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation
marks omitted).
To survive dismissal, a complaint must allege facts sufficient to “raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Id. (internal quotation marks omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
“As a general matter, a district court ruling on a motion to dismiss may not consider
matters extraneous to the pleadings. However, an exception to the general rule is that a
document integral to or explicitly relied upon in the complaint may be considered . . . .” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis omitted)
(citations omitted) (internal quotation marks omitted). Thus, a court may “consider matters of
public record, orders, exhibits attached to the complaint and items appearing in the record of the
case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).
Further, “a court may consider an undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.” Pension

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Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
III. DISCUSSION
A. Substantive Due Process Claim
To state a claim under § 1983, a plaintiff must allege a deprivation of a constitutional
right and that the constitutional deprivation was caused by a person acting under the color of
state law. Phillips, 515 F.3d at 235. Buerhle’s § 1983 claim rests on the Troopers’ alleged
deprivation of Sean’s right to substantive due process under the Fourteenth Amendment. Both
parties agree that Trooper Hahn was acting under the color of state law. Trooper Hahn argues
that Buerhle’s § 1983 claim should be dismissed because the Complaint fails to allege a
constitutional deprivation.2
The Due Process Clause provides that a state shall not “deprive any person of life, liberty,
or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The Due Process
Clause prevents the Government from abusing its power or using it as an instrument of
oppression.” Ye v. United States, 484 F.3d 634, 636 (3d Cir. 2007). Generally, however, the
Due Process Clause does not impose an affirmative duty on the state to protect its citizens. See
DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195-200 (1989). An exception
to this general rule is the state-created danger theory, which recognizes that “the Due Process
Clause can impose an affirmative duty to protect if the state’s own actions create the very danger
that causes the plaintiff's injury.” Morrow v. Balaski, 719 F.3d 160, 167 (3d Cir. 2013).
To prevail on a substantive due process claim under the state-created danger theory,3 a

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Trooper Hahn also argues that he is entitled to qualified immunity. It is unnecessary to address Trooper
Hahn’s qualified immunity argument because, as will be explained below, no constitutional deprivation
occurred. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (“If no constitutional right would have been
violated were the allegations established, there is no necessity for further inquiries concerning qualified
immunity.”)
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Buerhle argues that her substantive due process claim is viable even if it does not meet the requirements

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plaintiff must prove the following four elements:
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the conscience;
(3) a relationship between the state and the plaintiff existed such that the plaintiff
was a foreseeable victim of the defendant's acts, or a member of a discrete
class of persons subjected to the potential harm brought about by the state's
actions, as opposed to a member of the public in general; and
(4) a state actor affirmatively used his or her authority in a way that created a
danger to the citizen or that rendered the citizen more vulnerable to danger
than had the state not acted at all.
Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (footnotes omitted) (internal
quotation marks omitted). Trooper Hahn argues that Buerhle cannot establish the first, second,
and fourth elements of the test. Buerhle’s claim cannot succeed if she fails to establish any
single element. Because Buerhle cannot establish the fourth element, the requirement of an
affirmative act, it is unnecessary to analyze any additional elements.
To satisfy the fourth element of a state-created danger claim, a plaintiff must allege that
“defendants acted affirmatively to create a risk of danger that would otherwise not have existed.”
Kaucher v. Cnty. of Bucks, 455 F.3d 418, 432 (3d Cir. 2008). “It is misuse of state authority,
rather than a failure to use it, that can violate the Due Process Clause.” Bright, 443 F.3d at 282.
Moreover, “[t]here must be a direct causal relationship between the affirmative act of the state
and plaintiff’s harm.” Kaucher, 455 F.3d at 432. “Accordingly, the fourth element is satisfied
where the state’s action was the ‘but for cause’ of the danger faced by the plaintiff.” Id.
Buerhle argues that the Troopers took affirmative acts that rendered Sean more
vulnerable to danger when they: (1) refused to ping Sean’s cellphone to try and locate Sean; (2)
of the state-created danger theory. However, a substantive due process claim under the state-created
danger theory is Buerhle’s only possible avenue for success because of the general rule that the Due
Process Clause does not impose an affirmative duty on the state to protect its citizens. See DeShaney, 489
U.S. at 195-200.

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failed to request issuance of a MEPAS alert; and (3) provided Buerhle with a case number and
assured her that they would actively search for Sean and file a missing person’s report.
However, the Court of Appeals for the Third Circuit has rejected similar claims in several cases.
In Bright v. Westmoreland County, Charles Koschalk was sentenced to 23 months of
probation for corrupting the morals of a twelve-year-old girl. 443 F.3d at 278. Although it was a
condition of his parole that Koschalk would have no contact with the twelve year-old-girl (the
“girl”), Koschalk continuously violated his parole by contacting the girl. Id. Even though the
probation officer personally witnessed Koschalk with the girl and confronted him, there was a
ten-week delay between the reported violation and the date scheduled for a parole revocation
hearing. Id. at 278-79. During this ten-week period, the girl’s father contacted a police officer
and requested that the officer arrest Koschalk. Id. at 279. Despite the officer’s assurance to the
father that immediate action would be taken, Koschalk was not detained. Id. Before Koschalk’s
parole revocation took place, Koschalk killed the girl’s eight-year-old sister (the “victim”) in
retaliation for the family’s efforts to keep him away from the girl. Id.
The father argued that the state-actor defendants had caused the victim’s death when: (1)
they inexplicably delayed the probation revocation hearing for ten weeks; (2) the police officer
assured the father that Koschalk would be taken into custody, which resulted in the father failing
to take his own steps to protect his family; and (3) the probation officer confronted Koschalk
while he was with the victim. Id. at 283. The Third Circuit rejected all of these arguments on
the basis that none of the allegations in the Complaint amounted to an affirmative act “of the
defendants that utilized their state authority in a manner that rendered [the victim] more
vulnerable to Koschalk than she would otherwise have been.” Id. at 284. Additionally, the Third
Circuit rejected the argument that the victim was rendered more vulnerable to harm by the police

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officer’s assurance that Koschalk would be arrested because the father “does not, and cannot,
claim that the state in any way restricted his freedom to act on his own family’s behalf.” Id.; see
also Sanford v. Stiles, 456 F.3d 298, 312 (3d Cir. 2006) (guidance counselor did not render boy
who committed suicide more vulnerable to harm by cutting him off from the aid of his mother
because she “did not in any way interfere with [the mother’s] parental relationship with her son .
. . [or] suggest that [the boy] not speak with his mother”).
In Ye v. United States, the Third Circuit similarly rejected the argument that a “mere
assurance” can be an affirmative act that satisfies the fourth element of a state-created danger
claim. 484 F.3d at 635. Ye visited Dr. Kim six times between February 6, 2001 and March 5,
2002 at Philadelphia’s District Health Care Center No. 10, a health center operated by the
Philadelphia Department of Public Health. Id. Dr. Kim diagnosed Ye with hypertension,
coronary artery disease, and angina. Id. at 635-36. On March 5, 2002, Ye visited Dr. Kim and
complained of shortness of breath, discomfort in his upper body area, and coughing. Id. Dr.
Kim told Ye that “there is nothing to worry about and that he is fine.” Id. (internal quotation
marks omitted). Dr. Kim told Ye to return in three months and gave him a prescription for cough
medicine. Id. Based on Dr. Kim’s assurance that he was fine, Ye went home and did not seek
emergency medical assistance. Id. Later that day, Ye’s son found him unconscious and he was
rushed to the hospital. Id. It was determined that Ye had experienced a myocardial infraction
and was suffering from congestive heart failure. Id. Two experts agreed that Dr. Kim’s conduct
was outrageous, and that Dr. Kim should have given Ye a complete cardiac workup and
immediately hospitalized Ye for emergency medical treatment. Id. at 636. Ye brought suit
under the state-created danger theory. Id. at 640. The Third Circuit held that Ye could not
succeed in his suit because an assurance is not an affirmative act within the meaning of the

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fourth element of a state-created danger claim. Id. at 640-41.
In this case, the Troopers refusal to ping Sean’s cellphone and failure to request issuance
of a MEPAS alert are failures to act that cannot be recast as affirmative acts that rendered Sean
more vulnerable to danger. Likewise, as held in Bright and Ye, the Troopers’ assurance that they
would actively search for Sean and file a missing person’s report also does not amount to an
affirmative act. Buerhle argues that the Troopers rendered Sean more vulnerable to harm by
providing her with a case number and assuring her that they would search for Sean because their
assurances caused her to refrain from actively searching for Sean. However, the Troopers never
restricted Buerhle’s ability to search for Sean. In fact, Buerhle continued to search for Sean after
she spoke with the Troopers by checking Sean’s cellphone, bank, and computer records;
contacting local hospitals; and posting numerous missing person signs. The Troopers’
assurances did not make Sean more vulnerable to harm because they did not prevent Buerhle or
anyone else from helping Sean. See Bright, 443 F.3d at 284; Sanford v. Stiles, 456 F.3d at 312.
“[A]n assurance, in this case an expression of intent to help, is not an affirmative act sufficient to
trigger constitutional obligations.” Ye, 484 F.3d at 641.
“[T]he requirement of an actual affirmative act is not intended to turn on semantics of act
and omission. Instead, the requirement serves . . . to distinguish cases where . . . officials might
have done more . . . from cases where . . . officials created or increased the risk itself.” Morrow,
719 F.3d at 179 (internal quotation marks omitted). Buerhle cannot meet the fourth element of
the state-created danger test because the Troopers did not take any affirmative acts nor were their
alleged “actions” the “‘but for cause’ of the danger faced by [Sean].” Kaucher, 455 F.3d at 432.
While the Troopers may have failed to prevent Sean’s death, they did not cause or increase the
risk that he would commit suicide. Therefore, I will grant Trooper Hahn’s motion to dismiss

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Buerhle’s substantive due process claim.
B. State Law Claims
Buerhle brings a wrongful death claim, 42 Pa. Cons. Stat. Ann. § 8301, and a survival
claim, 42 Pa. Cons. Stat. Ann. § 8302. Trooper Hahn argues that both claims should be
dismissed because he is an employee of the Commonwealth entitled to statutory sovereign
immunity.4
Pennsylvania’s sovereign immunity statute provides “that the Commonwealth, and its
officials and employees acting within the scope of their duties, shall continue to enjoy sovereign
immunity and official immunity and remain immune from suit except as the General Assembly
shall specifically waive the immunity.” 1 Pa. Cons. Stat. Ann. § 2310. The General Assembly
has waived sovereign immunity in nine narrow circumstances that both parties agree are not
applicable in this case.5 See 42 Pa. Cons. Stat. Ann. § 8522.
Buerhle first argues that Trooper Hahn is not entitled to immunity because he is being
sued in his individual capacity. However, “Sovereign immunity . . . applies to Commonwealth
employees in both their official and individual capacities, so long as the employees are ‘acting
with[in] the scope of their duties.’” Larsen v. State Employees' Ret. Sys., 553 F. Supp. 2d 403,
420 (M.D. Pa. 2008) (quoting Maute v. Frank, 657 A.2d 985, 986 (Pa. Super. Ct. 1995); see also
Robinson v. Beard, 2013 WL 6022124, at *8 (E.D. Pa. Nov. 13, 2013).
Buerhle next contends that Trooper Hahn is not entitled to sovereign immunity because

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Trooper Hahn also argues that Buerhle fails to state a wrongful death claim or survival act claim. It is
unnecessary to address this argument because, as will be explained below, Trooper Hahn is entitled to
sovereign immunity.
5
The nine narrow exceptions to sovereign immunity are: (1) Vehicle liability; (2) Medical-professional
liability; (3) Care, custody or control of personal property; (4) Commonwealth real estate, highways and
sidewalks; (5) Potholes or other dangerous conditions; (6) Care, custody or control of animals; (7) Liquor
store sales; (8) National Guard activities; and (9) Toxoids and vaccines. 42 Pa. Cons. Stat. Ann. §
8522(b).

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his actions were outside the scope of his employment. According to the Third Circuit,
Pennsylvania has accepted the Restatement (Second) of Agency’s definition of conduct within
the scope of employment. Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000). According to
the Restatement, conduct is within the scope of employment if:
(a) it is of the kind [the employee] is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is not
unexpectable by the master.
Restatement (Second) of Agency § 228.
Buerhle argues that Trooper Hahn acted outside of the scope of his employment when he
“failed to properly follow department procedure and/or protocol [and] failed to properly, and
timely, file a missing person’s report, or request the issuance of a MEPAS alert.” Pl.’s Resp. 17.
“Under Pennsylvania law, even unauthorized acts may be within the scope of employment if
they are clearly incidental to the master’s business.” Brumfield, 232 F.3d at 381 (internal
quotation marks omitted). Moreover, according to the Restatement (Second) of Agency:
If the master employs a servant to speak for him, he is subject to liability if the
servant makes a mistake as to the truth of the words spoken or as to the
justification for speaking them, or even if he speaks with an improper motive,
provided that he acts at least in part to serve his employer's purposes. The master
may be liable even though the servant knows the statement to be untrue . . . .
Restatement (Second) of Agency § 247 cmt. c.; See also, Brumfield, 232 F.3d at 381 (applying
Restatement § 247 to determine whether the defendants acted within the scope of their
employment); Aliota v. Graham, 984 F.2d 1350, 1359 (3d Cir. 1993) (predicting that the
Pennsylvania Supreme Court would adopt Restatement § 247).
The Complaint alleges that Trooper Hahn was sent to Buerhle’s house to investigate
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Sean’s disappearance after Sean’s stepfather contacted the local State Police Department to file a
missing person’s report. Trooper Hahn visited Buerhle’s house in the course of his duty as a
state trooper. During his visit, Trooper Hahn refused to ping Sean’s cellphone, provided Buerhle
with a case number for a case that did not exist, and led Buerhle to believe that he had properly
reported and submitted a missing person’s report. Additionally, Trooper Hahn never requested
issuance of a MEPAS alert. All of Trooper Hahn’s actions were of the type that he was
employed to perform, occurred within the authorized time and space limits of his position as a
trooper, and were calculated with the purpose to serve his employer, the local State Police
Department. Even if Trooper Hahn failed to follow department procedure and/or office protocol
when he refused to ping Sean’s cellphone or request issuance of a MEPAS alert, the purpose of
his investigation into Sean’s disappearance was to serve the local State Police Department, and
these unauthorized acts were incidental to that purpose. Additionally, when Trooper Hahn spoke
with Buerhle he did so at the behest of the local State Police Department. Thus, when he
provided Buerhle with a case number for a nonexistent case, he was still acting within the scope
of his employment. Trooper Hahn is entitled to statutory sovereign immunity because all of his
conduct was within the scope of his employment. Therefore, I will grant Trooper Hahn’s motion
to dismiss the wrongful death and survival claims.
IV. CONCLUSION
For the reasons set forth above, I will grant Trooper Hahn’s motion to dismiss.
s/Anita B. Brody
___________________________
ANITA B. BRODY, J.
Copies VIA ECF on _________ to:

Copies MAILED on _______ to:

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