SUBER-APONTE v. BOROUGH OF POTTSTOWN et al

Filing 87

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE WENDY BEETLESTONE ON 9/23/16. 9/23/16 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHANICQUA SUBER-APONTE,
Plaintiff,

CIVIL ACTION

v.
BOROUGH OF POTTSTOWN, MARK
FLANDERS, JAMES YOST, CHARLES
WELLER, RICHARD DRUMHELLER,
Defendants.

NO. 15-1314

MEMORANDUM
Plaintiff Shanicqua Suber-Aponte has asserted several constitutional, statutory, and statecommon-law tort claims against the Borough of Pottstown (the “Borough”), Pottstown Borough
Manager Mark Flanders (“Flanders”), Pottstown Police Officer James Yost (“Yost”), Pottstown
code officer Charles Weller (“Weller”), and Pottstown Police Chief Richard Drumheller
(“Drumheller”).1 Defendants have filed a motion to dismiss all of Plaintiff’s claims.2 That
motion shall be granted in part and denied in part.
I.

BACKGROUND
As the Court writes only for the parties, this background concerns only the facts asserted

by Plaintiff that are necessary to resolve the current motion. Although neither the SAC nor the
TAC is a model of clarity, the Court has endeavored to identify all potential claims against
Defendants that can be gleaned from the language of the pleadings.

1

Plaintiff initially named her landlord, William Heuer (“Heuer”) as a Defendant, but later voluntarily dismissed the
claims against him. See ECF No. 62.
2

Although Plaintiff has filed a Third Amended Complaint (“TAC”), that document explicitly incorporates her
Second Amended Complaint (“SAC”). Accordingly, in their motion to dismiss the TAC, Defendants incorporated
their motion to dismiss the SAC. The Court shall therefore consider all claims that appear in either the SAC or the
TAC, and will construe Defendants’ current motion as seeking to dismiss all such claims.

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A. Allegations Against Yost
Plaintiff’s claims against Yost arise from two separate incidents at Plaintiff’s home. The
first occurred on November 23, 2013 after Plaintiff, who is African-American, called the police
to report a trespasser. When Yost responded to the call, Plaintiff alleges that he directed racial
slurs at her. He then allegedly refused to take any action against the Caucasian trespasser, and
told Plaintiff to “shut up” and go inside her home. When Plaintiff objected to these instructions,
Yost allegedly threatened Plaintiff with a disorderly conduct charge; told her “if you people
don’t like it just move”; and reiterated that he would not be arresting the trespasser, but told
plaintiff, “if you keep it up you will be arrested.” Plaintiff asserts that Yost then ran her name
for arrests and warrants, but did not conduct a similar check on any other persons present at the
time, and that he told Plaintiff to stop speaking on the phone with a friend to whom she was
describing Yost’s conduct. SAC at 2.
The second incident between Yost and Plaintiff occurred on August 19, 2014, when Yost
responded to a call by Plaintiff’s landlord, William Heuer (“Heuer”), who claimed that Plaintiff
would not allow him to enter the residence. Plaintiff alleges that Yost again directed racial slurs
at her when he arrived. After Plaintiff attempted to explain that Heuer had, in fact, been
permitted to enter, Plaintiff alleges that Yost again told her to “shut up” and go inside the
residence. Plaintiff claims that Heuer, who is Caucasian, admitted to Yost that he had been
allowed inside, but that Yost nonetheless wrote a police report stating that Plaintiff was causing a
disturbance, which caused her to lose her housing assistance from the housing authority. Based
on these factual allegations, Plaintiff has asserted claims against Yost under 18 U.S.C. §§ 241,
242, and 245 (criminal civil rights statutes), 18 U.S.C. § 1001 (criminal fraud statute), 42 U.S.C.
§ 3789d(c) (the anti-discrimination provision of the Safe Streets Act), and 42 U.S.C. § 14141

2

(provision allowing the Attorney General to file civil suits to obtain relief for deprivation of
rights within the juvenile justice system), as well as a constitutional claim under 42 U.S.C. §
1983 alleging “deprivation of rights,” and a claim for intentional infliction of emotional distress
(IIED). SAC at 2.
B. Allegations Against Drumheller
Plaintiff reported Yost’s racial slurs and other conduct to Drumheller on numerous
occasions, and also complained that Yost’s report regarding the August 19, 2014 altercation had
impacted her housing situation. She alleges that Drumheller refused to look into her complaints,
and eventually told her to never call the police department again. Arising from these factual
allegations, she has alleged claims under 18 U.S.C. §§ 241 and 242, 42 U.S.C. § 14141, 42
U.S.C. § 3789d(c), as well as a claim under 42 U.S.C. § 1983 alleging a failure to intervene in
the violation of her constitutional rights (which rights she does not identify with specificity), and
a claim for IIED. SAC at 1-2.
C. Allegations Against Weller
Plaintiff alleges that Weller falsified inspection documents, which allowed rental of the
property that Heuer leased to Plaintiff, despite knowing that Heuer had not corrected code
violations that Weller had previously identified and ordered Heuer to fix. When Plaintiff
complained to Weller about the allegedly improper inspection approval, Weller allegedly
responded that “it is what [it] is and if you don’t like it then sue the Borough.” Based on these
factual allegations, Plaintiff has alleged a violation of her Fourteenth Amendment rights (which
shall be construed as a claim under 42 U.S.C. § 1983), as well as a claim for IIED. SAC at 2-3.

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D. Allegations Against Flanders
Plaintiff alleges that Flanders has done nothing to address her complaints about Yost’s
alleged conduct, Weller’s alleged conduct, and the ongoing damage that Plaintiff experienced as
a result of Yost’s police report and Heuer’s refusal to fix her property. She further asserts that
her phone calls and e-mails to the Borough are constantly ignored, which she alleges is
retaliation for her speaking out against the Borough at public meetings. Based on these factual
allegations against Flanders, she has asserted a First Amendment retaliation claim and a
Fourteenth Amendment claim (which shall be construed as claims under 42 U.S.C. § 1983), a
claim under 42 U.S.C. § 1983 for failing to intervene in a violation of Plaintiff’s constitutional
rights (which rights she does not identify with specificity), claims under 18 U.S.C. § 1001 and 42
U.S.C. 3789d(c), and a claim for IIED. SAC at 3.
E. Allegations Against the Borough
Plaintiff has alleged that she and her son have sustained physical injuries from faulty
windows, a hole in the floor, fleas, a leaking roof and sink, and severe mold in her residence.
Plaintiff has asserted a claim against the Borough for negligence and a violation of her Ninth
Amendment rights, based on the Borough allowing Heuer to rent the unit to her. SAC at 3-4.
In the process of gathering evidence for her landlord-tenant dispute with Heuer in 2015,
Plaintiff requested documents from the Borough concerning its inspection of Heuer’s properties.
The Borough denied these Right-to-Know (RTK) requests in June 2015. Initially, the Borough
claimed that the reason for denial was that the records were part of an ongoing criminal or noncriminal investigation. The following week, the Borough reiterated its denial of Plaintiff’s
requests and added a new justification: Plaintiff’s lawsuit against the Borough in federal court.
Later the same day, after Plaintiff complained that this new reason violated her civil rights, the

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Borough “clarified” its position and noted that the ongoing federal litigation would not preclude
any further RTK requests – although the existing requests remained denied. In all, Plaintiff
received at least four letters from the Borough regarding the denial of her requests. Plaintiff
alleges that the Borough has granted similar RTK requests by Heuer. Plaintiff appealed the
denial to the Pennsylvania Office of Open Records (“OOR”), which granted Plaintiff’s appeal
and found that the Borough had produced “no evidence” to support its denial of Plaintiff’s
requests. Plaintiff alleges that the Borough’s denial of her RTK requests was in retaliation for
her repeated public grievances against the Borough, and she has asserted a First Amendment
retaliation claim against the Borough based on this allegation. TAC at 2-3.
II.

LEGAL STANDARD
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “In light
of Twombly, it is no longer sufficient to allege mere elements of a cause of action; instead a
complaint must allege facts suggestive of the proscribed conduct.” Great W. Mining & Mineral
Co. v. Fox Rothschild LLP, 615 F.3d 159, 177 (3d Cir. 2010) (internal quotation marks and
brackets omitted). A plaintiff need not show that success on his or her claims is probable, but
must assert “‘enough facts to raise a reasonable expectation that discovery will reveal evidence
of’” each necessary element in a claim. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008) (quoting Twombly, 550 U.S. at 556). However, “‘[w]here a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.’” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.
2012) (quoting Iqbal, 556 U.S. at 678). The question is not whether the claimant “will ultimately

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prevail . . . but whether his complaint [is] sufficient to cross the federal court’s threshold.”
Skinner v. Switzer, 562 U.S. 521, 529-30 (2011) (internal quotation marks and citations omitted).
In considering a plaintiff’s claims, the Court must construe the facts alleged in the
Complaint drawing all reasonable inferences in the light most favorable to the plaintiff.
Santomenno ex rel. John Hancock Trust v. John Hancock Life Ins. Co. (U.S.A.), 768 F.3d 284,
290 (3d Cir. 2014). In doing so, the Court may look to documents that are attached to the
complaint and on which a plaintiff relies to determine if the documents support or contradict the
legal or factual claims in the complaint. S. Cross Overseas Agencies, Inc. v. Wah Kwong
Shipping Grp. Ltd., 181 F.3d 410, 427 (3d Cir. 1999).
III.

DISCUSSION
A. Federal Statutory Claims
Plaintiff has asserted claims under several federal criminal statutes: 18 U.S.C. §§ 241,

242, 245, and 1001. None of these statutes provide for a private right of action, and Defendants’
motion to dismiss these claims shall be granted. See Mathis v. Phila. Elec. Co., 644 F. App’x
113, 116 (3d Cir. 2016) (“[T]he District Court properly determined that the criminal statutes that
Mathis invoked [including 18 U.S.C. § 1001] do not create a private right of action.”); Chaney v.
Races and Aces, 590 F. App’x 327, 330 (3d Cir. 2014) (“Sections 241 and 242 are criminal
statutes that ‘do not provide for a private right of action.’”) (quoting Ali v. Shabazz, 8 F.3d 22, 22
(5th Cir. 1993)); Barr v. Camelot Forest Conservation Ass’n, 153 F. App’x 860, 862 (3d Cir.
2005) (affirming dismissal of claims under 18 U.S.C. § 245 because such claims were based on
“criminal offenses for which there is no civil remedy”).
Additionally, Plaintiff has asserted claims under the Omnibus Crime Control and Safe
Streets Act of 1968 (the “Safe Streets Act”), 42 U.S.C. § 3789d(c), which prohibits

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discrimination in the allocation of benefits, participation, and employment by any program
funded by certain Department of Justice grants authorized by the Act. See Sims v. Montgomery
Cnty. Comm’n, 873 F. Supp. 585, 608 (N.D. Ala. 1994). Since Plaintiff has not identified any
program funded by the Safe Streets Act connected to the discrimination she has alleged, there is
no plausible basis for claims under this statute and these claims shall be dismissed.
Finally, Plaintiff has asserted claims under 42 U.S.C. § 14141, which allows the Attorney
General of the United States to initiate a civil action to remediate violations of constitutional
rights within the juvenile justice system. Since the statute specifically provides that “[a] claim
under 42 U.S.C. § 14141 may only be brought by ‘the Attorney General, for or in the name of
the United States,’” Suber-Aponte is not a proper plaintiff for a claim under this provision.
Chaney, 590 F. App’x at 330, and these claims must be dismissed.
Since the criminal statutes do not create a private right of action, Plaintiff does not assert
discrimination in relation to a program funded by the Safe Streets Act, and only the Attorney
General may assert a claim under 42 U.S.C. § 14141, amendment of the claims under these
statutes would be futile, and these claims shall be dismissed with prejudice.
B. Constitutional Claims under 42 U.S.C. § 1983
I turn now to the claims that Plaintiff has asserted under 42 U.S.C. § 1983 alleging that
Defendants violated several of her constitutional rights.
1. Fourteenth Amendment Due Process (Weller and Flanders)
Plaintiff has asserted Fourteenth Amendment Due Process claims against Weller and
Flanders arising from their alleged failure to enforce the housing code against Heuer, which
Plaintiff states deprived her of either her property right in the residence or the protection of the
Borough’s housing laws. However, as the Supreme Court noted in DeShaney v. Winnebago

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County Department of Social Services, the Due Process Clause “generally confer[s] no
affirmative right to governmental aid, even where such aid may be necessary to secure life,
liberty, or property interests of which the government itself may not deprive the individual.” 489
U.S. 189, 196 (1989). Thus, Weller and Flanders had no constitutional obligation to intervene in
Heuer’s alleged failure to provide a habitable environment or to enforce the Borough’s housing
code to protect Plaintiff from substandard living conditions. Plaintiff’s Due Process claims
against Weller and Flanders must therefore be dismissed. Since the alleged condition of
Plaintiff’s housing was caused by Heuer, and not by the Borough or its employees, any
amendment to this claim would be futile in light of DeShaney, and this claim shall be dismissed
with prejudice.
2. Fourteenth Amendment Equal Protection (Yost)
Plaintiff has asserted a section 1983 claim against Yost asserting “deprivation of rights.”
Although Plaintiff does not specify which right Yost allegedly violated and Defendants’ motion
to dismiss does not specifically address the constitutional claim against Yost, the factual
assertions against Yost describe an allegation of racial profiling. While Defendants do not
specifically respond to the constitutional claim against Yost, their motion contains an argument
that all of the individual Defendants, including Yost, are entitled to qualified immunity with
respect to the constitutional claims against them. “Qualified immunity shields government
officials from civil damages liability unless the official violated a statutory or constitutional right
that was clearly established at the time of the challenged conduct.” Reichle v. Howards, 132 S.
Ct. 2088, 2093 (2012). A qualified immunity analysis thus consists of two questions, which may
be addressed in either order: (1) Whether plaintiff has presented facts that would establish that a
defendant’s conduct has violated a constitutional right; and (2) “whether that right was ‘clearly

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established’ at the time of the challenged conduct.” Dougherty v. Sch. Dist. of Phila., 772 F.3d
979, 986 (3d Cir. 2014).
Turning first to whether Plaintiff has pled facts which establish a constitutional violation,
to state a racial profiling claim under the Equal Protection Clause, a plaintiff must show that an
officer’s actions “(1) had a discriminatory effect and (2) were motivated by a discriminatory
purpose.” Bradley v. United States, 299 F.3d 197, 205 (3d Cir. 2002). To show discriminatory
purpose, a plaintiff must provide facts to show that “she is a member of a protected class and that
she was treated differently from similarly situated individuals in an unprotected class.” Id. at
206.
Plaintiff is African-American and has alleged that when Yost came to her residence in
response to her call regarding a trespasser on November 23, 2013, he treated her differently than
the similarly situated Caucasian bystanders present at the time – including the alleged trespasser
about whom Plaintiff had contacted the police. Taken as a whole, Plaintiff’s allegations that
Yost directed racial slurs at her; threatened to arrest her, but not the Caucasian alleged trespasser;
told her that “you people . . . should just move”; and checked Plaintiff, but not any of the
Caucasian persons present, for arrests or warrants are sufficient to plausibly support the
allegation that Yost treated Plaintiff differently than other similarly situated individuals based on
her race.
Since Plaintiff has pled facts that, if true, would plausibly support a constitutional
violation, it is necessary to determine if the right at issue here was clearly established at the time
the alleged violation occurred. Clearly established rights are those which are sufficiently clear
such “that every reasonable official would have understood that what he is doing violates that
right.” Reichle, 132 S. Ct. at 2093 (internal quotations omitted). Put another way, an official

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violates a clearly established right when “the unlawfulness of the action is apparent in light of
pre-existing law.” Dougherty, 772 F.3d at 993.
The right to be free from intentional discrimination based on race was clearly established
when Yost’s actions occurred. Even if it were unclear in the Third Circuit prior to Bradley, that
decision established that the Equal Protection Clause is violated when an officer intentionally
treats a member of a protected class differently than a similarly situated member of an
unprotected class. Bradley, 299 F.3d at 206. Race has long been established as a protected class
under the Equal Protection Clause. See id. Thus, by 2013, when the first incident occurred, a
reasonable police officer would have understood that it was unconstitutional to intentionally treat
Plaintiff more harshly based on her race. Since Plaintiff has alleged facts which plausibly
support her allegations that Yost violated her constitutional rights, and the right to be free from
intentionally discriminatory treatment by an officer based on race was clearly established at the
time the alleged conduct occurred, Yost is not entitled to qualified immunity based on the facts
presented in the SAC and TAC, and Defendants’ motion to dismiss shall be denied with respect
Plaintiff’s section 1983 claim against Yost.
3. Failure to Intervene
Plaintiff has alleged claims under 42 U.S.C. § 1983 against Drumheller and Flanders
asserting that they failed to intervene in constitutional violations by other officials. The Third
Circuit has held that a failure-to-intervene claim may arise when an officer, “whether supervisory
or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating
takes place in his presence.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002) (emphasis
added). The Third Circuit has emphasized that “an officer is liable only if there is a realistic and
reasonable opportunity to intervene.” Id.

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a.

Drumheller

The failure-to-intervene claim against Drumheller arises from his alleged failure to look
into Plaintiff’s complaints about Yost’s alleged racial slurs and racial profiling. But there is no
allegation that any of Yost’s alleged violations of Plaintiff’s constitutional rights occurred in
Drumheller’s presence, and Plaintiff’s assertion that Drumheller ignored her complaints after the
fact does not demonstrate that Drumheller had a “realistic and reasonable opportunity” to
intervene in Yost’s alleged violation of Plaintiff’s rights. Defendants’ motion to dismiss shall
therefore be granted with respect to the failure-to-intervene claim against Drumheller.
b. Flanders
Similarly, Plaintiff’s failure-to-intervene claim against Flanders – which arises from
Flanders’s alleged ignoring of Plaintiff’s grievances concerning police discrimination, housing
code violations, false police reports, and negligence on the part of the Borough – is
unsustainable. As noted above, however, a failure-to-intervene claim requires that the Defendant
had “a realistic and reasonable opportunity to intervene.” Smith, 293 F.3d at 651 (emphasis
added). Failure to take affirmative steps in response to grievances about past conduct is not the
same as failure to intervene in an immediate constitutional violation, and Plaintiff’s allegations
against Flanders therefore do not support a failure-to-intervene claim. Additionally, as discussed
above, Weller’s alleged failure to enforce the housing code against Heuer was not a
constitutional violation in the first place, so it cannot give rise to a constitutional duty to
intervene. Defendants’ motion to dismiss shall therefore be granted with respect to the failureto-intervene claim against Flanders.
Since Plaintiff has had four opportunities to state her claims, and the facts asserted in the
SAC establish that neither Drumheller nor Flanders had a realistic opportunity to intervene as the

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alleged constitutional violations occurred, amendment of Plaintiff’s failure-to-intervene claims
would be futile, and these claims shall be dismissed with prejudice.
4. First Amendment Retaliation
Plaintiff has asserted First Amendment retaliation claims against Flanders and the
Borough. To plead a First Amendment retaliation claim, “a plaintiff must allege: (1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights, and (3) a causal link between the
constitutionally protected conduct and the retaliatory action.” Thomas v. Independence Twp.,
463 F.3d 285, 296 (3d Cir. 2006). The Third Circuit has held that speaking out against local
government officials, “even if concerned with private grievances, is entitled to First Amendment
protection.” Eichenlaub v. Twp. of Ind., 385 F.3d 274, 284 (3d Cir. 2004).
a.

The Borough

Plaintiff has asserted that the Borough retaliated against her for speaking at the borough
council meetings by denying her Right to Know (“RTK”) requests for information about the
Borough’s inspection of Heuer’s properties.
In light of Eichenlaub, Plaintiff’s speech at numerous public council meetings about the
Borough’s code enforcement is protected speech, regardless of whether the grievances are
considered matters of public concern or concerned only Suber-Aponte. She has thus satisfied the
first element of a First Amendment retaliation claim against the Borough. The Borough argues
that she has not met the second element because she ultimately was able to obtain the documents
she requested after she successfully appealed to the Pennsylvania Office of Open Records
(“OOR”). But for the time-sensitive purpose that Plaintiff sought the documents – to fight
eviction by her landlord – the several-month delay created by the OOR appeal process could be

12

viewed as a sufficiently harsh consequence to deter a person of ordinary firmness from
exercising her constitutional rights. See McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)
(holding that the impact of a retaliatory action “need not be great in order to be actionable, but it
must be more than de minimis”) (internal quotation marks omitted). Finally, Defendants argue
that Plaintiff cannot show a causal relationship between her protected activity and the alleged
retaliation because their letters denying her requests cite lawful reasons for the denials. But
given that the OOR found “no evidence” to support the Borough’s cited justifications for
denying the requests, and that the Borough sent Plaintiff various letters changing its justification
for the denial at least twice (including at least one plainly improper justification which the
Borough “clarified” within hours), it would be plausible to infer that the Borough’s actual reason
for denying Plaintiff’s request was retaliation for her frequent public critiques of the Borough
and its officials. Since Plaintiff has pled facts to plausibly support all three elements of her First
Amendment retaliation claim against the Borough, Defendants’ motion to dismiss that claim
shall be denied.
b. Flanders
Plaintiff’s First Amendment retaliation claim against Flanders is based on his alleged
failure to respond to her complaints about Yost’s and Weller’s conduct. Setting aside whether
the failure to respond to these complaints is a sufficiently harsh action to constitute First
Amendment retaliation, Plaintiff has asserted no facts in the SAC or TAC which connect her
protected activity to the alleged retaliation. She has alleged only that Flanders heard her
complaints and did not act to correct the violations. Any causal link between her protected
activity and the alleged failure to enforce the housing code is speculative in that neither the SAC
nor the TAC contain any facts “suggestive of the proscribed conduct.” Great W. Mining, 615 F.

13

3d at 177. Accordingly, Defendants’ motion to dismiss the First Amendment retaliation claim
against Flanders shall be granted.
5. Ninth Amendment
Plaintiff has alleged that “[t]he borough as a whole is also in violation of Ninth
Amendment Right. [sic]” SAC at 4. While the factual predicate of this claim is unclear, the
claim cannot not survive because “the Ninth Amendment does not independently provide a
source of individual constitutional rights.” Perry v. Lackawanna Cnty. Children & Youth Servs.,
345 F. App’x 723, 726 (3d Cir. 2009). Defendants’ motion to dismiss Plaintiff’s Ninth
Amendment claim shall be granted, and, since the Ninth Amendment does not provide for an
independent source of constitutional rights, the claim will be dismissed with prejudice because
amendment would be futile.
C. Intentional Infliction of Emotion Distress (IIED)
A claim for intentional infliction of emotional distress (IIED) seeks to impose liability on
a defendant “who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another.” Hoy v. Angelone, 720 A.2d 745, 753 (Pa. 1998) (quoting
Restatement (Second) of Torts § 46(1) (1965)). The claim requires an allegation of conduct “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Id.
(internal quotation marks omitted). Defendants have argued that an IIED claim requires physical
injury, but this argument is misplaced: the physical injury requirement applies only to IIED
claims based on the emotional effects of harm to third parties (i.e., a claim by the bystander to an
extreme injury). See Restatement (Second) of Torts § 46(2) (1965). When a defendant’s actions
are directed at a plaintiff herself, an IIED claim does not require physical injury; rather, proof of

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severe emotional distress suffices to meet the injury component of the claim. See Kazatsky v.
King David Mem’l Park, Inc., 527 A.2d 988, 995 (Pa. 1987). However, while physical injury is
not required, the Pennsylvania Supreme Court has emphasized that IIED claims arise only from
“the most clearly desperate and ultra extreme conduct,” such as burying a car accident victim’s
body in an abandoned field (instead of notifying authorities or seeking medical assistance),
intentionally framing a plaintiff for homicide, or intentionally releasing false information that a
famous plaintiff was suffering from a fatal disease. Id. at 152. In the context of employment,
courts applying Pennsylvania law have acknowledged IIED claims when severe harassment was
combined with harsh retaliation for refusing sexual advances. See Bowersox v. P.H. Glatfelter
Co., 677 F. Supp. 307, 311 (M.D. Pa. 1988) (recognizing claim for IIED in which employer
repeatedly harassed employee, withheld information she needed to perform her job, forbade her
from talking to co-workers or answering the phone, and followed her throughout the workplace).
1. Yost
Plaintiff’s IIED claim against Yost arises from her allegation that Yost directed racial
slurs against her, harassed her, threatened her with arrest without cause, and filed a knowingly
false police report that caused her to lose her housing assistance. Taken as true, these allegations
could plausibly support an inference that Yost acted with the intent to cause emotional harm to
Plaintiff and that his actions were sufficiently outrageous to meet the standard for an IIED claim.
Accordingly, Defendants’ motion to dismiss Plaintiff’s IIED claim against Yost shall be denied.
2. Drumheller
Plaintiff’s IIED claim against Drumheller arises from her allegation that he did not take
action in response to Plaintiff’s complaints about Yost’s conduct. Inaction in response to a
complaint is not the type of “desperate and ultra extreme conduct” necessary to support an IIED

15

claim, nor has Plaintiff provided any facts to suggest that Drumheller intended to cause severe
emotional distress to Plaintiff. Therefore, Defendants’ motion to dismiss the IIED claim against
Drumheller shall be granted.
3. Flanders
Plaintiff’s IIED claim against Flanders concerns his inaction in response to her
complaints about enforcement of the housing code. As with the claim against Drumheller, this
type of inaction in response to complaints is not the type of extreme conduct that courts have
found to support an IIED claim. Accordingly, Defendants’ motion to dismiss shall be granted
with respect to the IIED claim against Flanders.
4. Weller
Plaintiff’s IIED claim against Weller concerns Weller’s alleged failure to enforce the
housing code against Heuer. Although this behavior was not as passive as Drumheller’s or
Flanders’s, it also does not raise to the level of outrageousness required to support an IIED claim.
Furthermore, there are no facts to suggest that Weller’s alleged failure to enforce the code
against Heuer was directed at Plaintiff, let alone was motivated by an intent to cause Plaintiff
emotional harm. Plaintiff has thus failed to provide factual support for her IIED claim against
Weller, and Defendants’ motion to dismiss that claim shall be granted.
Given the limited scope of IIED as a cause of action in Pennsylvania and the fact that
Plaintiff’s most recent amended complaint contains no additional facts regarding her IIED
claims, the Court finds that amendment of the IIED claims against Drumheller, Flanders, and
Weller would be futile, and these claims will be dismissed with prejudice.

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D. Negligence
Plaintiff has asserted a claim for negligence against the Borough arising from injuries she
sustained from faulty windows, a hole in the floor, mold, fleas, and roof leaks in her residence.
However, a local government in Pennsylvania is immune from negligence claims except to the
extent those claims fall within any of the statutory exceptions set forth in 42 Pa. Cons. Stat. §
8542. The only exception relevant to torts involving real property provides that a local
government is liable only for negligence in relation to property that is in “the care, custody, or
control” of the government. 42 Pa. Cons. Stat. § 8542(b)(3). Since Plaintiff has pled that Heuer
was her landlord and neither the SAC nor the TAC contain any facts suggesting that the Borough
had care, custody, or control of the property, this exception does not apply and the Borough is
immune from any claims for negligence regarding the residence. Defendants’ motion to dismiss
this claim shall be granted, and, in light of the Borough’s immunity, amendment of this claim
would be futile so it shall be dismissed with prejudice.
An order follows.

Dated: September 23, 2016
BY THE COURT:

/S/WENDY BEETLESTONE, J.
_______________________________
WENDY BEETLESTONE, J.

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