SCHUTT et al v. MELMARK, INC. et al

Filing 13

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 5/9/16. 5/9/16 ENTERED AND COPIES EMAILED.(rf, )

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

ALEXANDER SCHUTT, et al.,
Plaintiffs,
v.
MELMARK, INC., et al.,
Defendants.

CIVIL ACTION

No. 15-2731

Goldberg, J.

May 9, 2015
MEMORANDUM OPINION

Alexander Schutt (“Schutt”) and his parents Clarence and Barbara Schutt have brought
suit against Melmark, Inc. (“Melmark”), a residential facility for individuals with intellectual
disabilities, and several Melmark employees.1 The case centers on Defendants’ decision to cease
providing care for Schutt and their alleged malfeasance in transporting Schutt to a crisis
intervention center.
The Complaint consists of the following claims: deprivation of Fifth and Fourteenth
Amendment rights pursuant to 42 U.S.C. § 1983 (Count 1); conspiracy to deprive civil rights
pursuant to 42 U.S.C. § 1985 (Count 2); negligence (Count 3); negligence per se (Count 4);
intentional infliction of emotional distress (“IIED”) on behalf of Clarence and Barbara Schutt
(Count 5); intentional infliction of emotional distress on behalf of Schutt (Count 6); and
professional malpractice (Count 7).

1

The individual defendants are Dr. Joanne Gillis-Donovan, President and CEO, Dr. George P.
Linke, Jr., Vice President and Chief Operating Officer, and Dr. Jessica Woods, Executive
Director of Programs. (Compl. ¶¶ 6-11.)
1

Defendants have moved to dismiss all claims except for the negligence claim (Count 3).
For the reasons that follow, Defendants’ motion to dismiss will be granted in part and denied in
part.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The Complaint alleges the following facts:2 Schutt is a twenty-nine year old autistic man

from New Jersey. From 2001 until May 15, 2013, Schutt resided at Melmark’s residential care
facility, where he received twenty-four hour care for his “severe intellectual and physical
disabilities,” “maladaptive behaviors including aggression, noncompliance, elopement and
PICA,” and “grand mal seizures.” (Compl. ¶¶ 16–17.) Schutt was initially placed at Melmark by
his home school district, Princeton Regional School District, which funded Schutt’s care until he
“aged out of his educational entitlements” when he turned 21 years old in 2007. (Compl. ¶ 18.)
Thereafter, the New Jersey Department of Developmental Disabilities (“NJ DDD”) assumed
“full” responsibility for funding Schutt’s care at Melmark pursuant to an annual contract NJ
DDD had with Melmark. (Compl. ¶ 19.)
Schutt alleges that in the spring of 2011, NJ DDD began to dispute the rates it paid for
housing New Jersey residents at Melmark. During this time, NJ DDD negotiated several contract
extensions to continue Schutt’s care while NJ DDD searched for an alternative placement for
Schutt. (Compl. ¶ 23.) Despite failing to secure a suitable alternative placement, NJ DDD ceased
paying Melmark in April 2012. (Id.)
Schutt, however, continued to reside at Melmark even after his NJ DDD funding was
discontinued. (Id. at ¶ 25.) Melmark subsequently filed a petition for involuntary commitment in
2

When deciding a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), a district court must assume the veracity of all well-pleaded facts found in
the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). I assume that all facts found in the
Complaint are true.
2

the Delaware County Court of Common Pleas requesting that the Delaware County Department
of Mental Health and the Pennsylvania Department of Welfare provide residential programming
for Schutt. (Id.) The petition was “unsuccessful leading [Defendants] to engage in a conspiracy
to remove [Schutt] from Melmark’s care.” (Id. at ¶ 26.)
This “conspiracy” allegedly began in December 2012, when Woods notified Schutt’s
parents that, due to the lack of funding, Melmark would no longer take Schutt to any off-campus
activities. (Id. at ¶ 33.) Woods allegedly “conceded” that “the decision to terminate all of
[Schutt’s] off-campus activities represented a concerted effort by Melmark to encourage
[Schutt’s parents to remove Schutt] from Melmark’s care.” (Id. at ¶ 37.) In November 2012,
Woods refused to transport Schutt to his parents’ home to celebrate Thanksgiving, despite
previously agreeing to do so. (Id. at ¶¶ 38, 41.)
Nonetheless, Schutt continued to reside at Melmark into the spring of 2013. (Id. at ¶ 44.)
In an email exchange between Donovan-Gillis, Linke and Woods, Woods “indicated that she
wanted to do anything possible to accelerate [a] final discharge because [Schutt’s] family had a
lack of concern for Melmark.” (Id. at ¶ 45.) Woods further stated “[t]hey raise millions of dollars
for research of a debunked intervention, but have not offered one dollar to the agency taking care
of their son for the past 12 years.” (Id.)
Sometime thereafter, Woods indicated to another employee that Melmark would likely
transfer Schutt to a crisis care facility and refuse to readmit him in the near future, and,
accordingly, Woods would need to review Schutt’s behavioral records. (Id. at ¶ 46.) After her
review, Woods emailed the Melmark employee to change the percentage based assessments in
his behavioral records, stating “the percents are so low, it’s hard to make him sound ‘dangerous’
with that type of measurement.” (Id. at ¶ 47.)

3

Then, on May 15, 2013, Defendants determined Schutt was behaving aggressively,
despite there being no reported aggression during a routine dentist appointment Schutt attended
and no staff incident and or restraint reports being generated for Schutt that day. (Id. at ¶¶ 50, 51
n.3.) Later that day, without observing Schutt, Woods determined his “behavior was escalating
and he was in need of a higher level of care.” (Id. at ¶ 53.) Under the direction of Linke, who
also did not observe Schutt’s behaviors, Melmark employees transported Schutt to a crisis center
at Kenney Hospital located in Cherry Hill, New Jersey. (Id. at ¶¶ 52, 54–55.) Despite receiving
express directions from Kennedy Hospital staff to remain with Schutt until he could be seen by a
physician, Melmark employees “abandoned” Schutt at the crisis center. (Id. at ¶ 57 n.6.)
Defendants failed to provide Schutt’s medical records to Kennedy Hospital. As a result,
the staff at Kennedy Hospital was unaware of the daily dosages of medicine Schutt required to
control his seizures. (Id. at ¶ 58.) Due to Defendants’ actions, Schutt “remained sedated in a
windowless, padded room for eight (8) days” and “was not provided any opportunity to bathe
himself.” (Id. at ¶¶ 59, 60.) During this time, employees of Kennedy Hospital requested that
Melmark return for Schutt but Melmark refused. (Id. at ¶ 61.)
On May 22, 2013, Schutt was declared homeless by the State of New Jersey, and after
approval from NJ DDD, was transferred the following day to a temporary facility in Franklin
Township, NJ where he suffered two grand mal seizures. (Id. at ¶ 65.) The seizures were the
result of Schutt’s removal from Melmark and Defendants’ subsequent failure to provide proper
documentation to the staff at Kennedy Hospital. (Id. at ¶ 65.)
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action

for failure to state a claim upon which relief can be granted. When deciding a Rule 12(b)(6)

4

motion, the court must accept the facts pled in the complaint as true and construe them in the
light most favorable to the plaintiff. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir.
2000). A plaintiff must provide more than a formulaic recitation of a claim’s elements that
amounts to mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“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) (citing Twombly, 550 U.S. at 570).
To determine the sufficiency of a complaint under Twombly and Iqbal, a court must take
the following three steps: (1) the court must “tak[e] note of the elements a plaintiff must plead to
state a claim”; (2) the court should identify allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth”; and (3) “where there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.” Burtch v. Milberg Factors, Inc., 662 F.3d 212,
221 (3d Cir. 2011) (citations omitted).
III.

DISCUSSION
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants have moved to dismiss

Counts 1, 2, 4, 5, 6 and 7 as well as the request for punitive damages in Plaintiffs’ Complaint.
i.

Count 1 - 42 U.S.C. § 1983

Defendants urge that Plaintiffs’ section 1983 claims must be dismissed because the
Complaint fails to allege facts to demonstrate that Defendants acted under the color of state law.
Under section 1983, a plaintiff must demonstrate that his or her federal constitutional or statutory
rights were violated by a person acting “under the color of state law.” Kost v. Kozakiewitz, 1
F.3d 176, 184 (3d Cir. 1993). The essential question is whether the challenged activity “may be

5

fairly treated as that of the State itself[.]” Jackson v. Metro. Edison Co., 419 U.S. 345, 351
(1974)). Although this is a “fact-specific inquiry[,]” it may be addressed on a motion to dismiss.
Schneider v. Arc of Montgomery Cty., 497 F. Supp. 2d 651, 660 (E.D. Pa. 2007) (collecting
cases).
A private party may be regarded as a “a federal actor . . . under one of three interrelated
theories of government action: (i) the ‘public function’ test, (ii) the ‘close nexus’ test and (iii) the
‘symbiotic relationship’ test.” Brown v. Philip Morris Inc., 250 F.3d 789, 801 (3d Cir. 2001). In
deciding whether there has been state action, the court must remain focused on the central
purpose of the state action inquiry – to “assure that constitutional standards are invoked when ‘it
can be said that the state is responsible for the specific conduct of which plaintiff complains.’”
Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)
(emphasis in original).
Plaintiffs contend that the Complaint contains sufficient factual allegations to
demonstrate that Defendants are state actors under either the public function test or symbiotic
relationship test. I first will consider the parties’ arguments regarding the public function test.
The requirements of the public function test are “rigorous” and “rarely . . . satisfied.”
Robert S. v. Stetson School, Inc., 256 F.3d 159, 165 (3d Cir. 2001) (quoting Mark v. Borough of
Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995)). It requires the court to determine whether the
defendant was performing a function that is “traditionally and exclusively” the province of the
state. Leshko v. Servis, 423 F.3d 337, 343 (3d Cir. 2005).
In their response in opposition to the motion to dismiss, Plaintiffs urge that “Melmark
and the individually named defendants perform a function that has traditionally been the
exclusive domain of the government . . . the obligation to care for intellectually disabled

6

residents.” (Pls.’ Resp. p. 7.) However, the Complaint does not make this assertion nor does it
contain any supporting factual allegations to suggest providing custody and care services to
intellectually disabled citizens is a traditional and exclusive government function in
Pennsylvania or New Jersey.3 (See Compl. ¶¶ 69-75.) As such, the Complaint fails to adequately
allege state action under the public function test.
“In civil rights cases, district courts must offer amendment – irrespective of whether it is
requested – when dismissing a case for failure to state a claim unless doing so would be
inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,
251 (3d Cir. 2007). As such, I will consider whether allowing Plaintiffs an opportunity to amend
the Complaint with respect to the public function test would be futile in light of the history of
how New Jersey and Pennsylvania have approached the care and custody of intellectually
disabled individuals.
I previously considered whether the care and custody of intellectually disabled
individuals has been a traditional and exclusive government function in Pennsylvania. See
Zarebicki v. Devereux Found., 2011 WL 2582140, at *5-6 (E.D. Pa. June 30, 2011). In
Zarebicki, I explained:
In Pennsylvania (and in the United States more broadly), the care of individuals
with developmental disabilities was seen as a “family and local concern” until the
1840s. Schneider v. Arc of Montgomery County, et al., 497 F. Supp. 2d 651, 655–
56 (E.D. Pa. 2007) (citing James W. Trent, Inventing the Feeble Mind: A History
of Mental Retardation in the United States 2, 15 (1994)). In Pennsylvania, private
citizens have and continue to provide care for developmentally disabled members
3

Plaintiffs appear to assume that New Jersey, as the state that funded Schutt’s care, rather than
Pennsylvania, the state in which Melmark is located, forms the proper realm of inquiry. As the
Complaint is completely devoid of any allegations regarding whether providing residential care
to intellectually disabled individuals has traditionally been the exclusive domain of either New
Jersey or Pennsylvania, I need not resolve the question of which State should form the basis of
the inquiry at this stage. If Plaintiffs file an amended complaint, they should clarify whether they
contend New Jersey, Pennsylvania or both form the proper realm(s) of inquiry.
7

of their families. I, therefore, am unable to foresee how Plaintiff could plausibly
demonstrate that providing custody, care and habilitative services to the mentally
disabled is a traditional and exclusive prerogative of Pennsylvania. Cf. Sybalski v.
Independent Group Home Living Program, Inc., 2007 WL 1202864 at –––– 4–5
(E.D.N.Y. Apr. 24, 2007) (concluding that a private group home for mentally
disabled, certified and licensed under New York law, was not a state actor
because “care for the mentally disabled was neither traditionally nor exclusively
reserved to the state”); Karaahmetoglu v. Res–Care, Inc., 480 F. Supp. 2d 183,
188 (D.C. 2007) (granting of motion to dismiss, holding that “plaintiff has not
even established that the provision of residential and rehabilitative services for
voluntary commitments should be considered a traditional state function”).
This conclusion is bolstered by the Third Circuit’s decision in Leshko v. Servis,
423 F.3d 337 (3d Cir. 2005), which undertook an in-depth analysis of whether a
function is traditionally and exclusively reserved to the state. In Leshko, plaintiff
sustained serious burns when her foster mother allegedly left her alone next to a
pot of hot water, which she overturned onto herself. Plaintiff alleged that her
foster parents violated her Fourteenth Amendment right to be free from physical
harm, and that they were state actors because they were county “employees” and
Pennsylvania had placed her in their custody pursuant to its statutory foster care
system. Id. at 337–39.
The Third Circuit affirmed the district court’s dismissal of plaintiff’s complaint,
holding that the defendants were not state actors because the state had not
delegated a “traditional and exclusive” state function. The Court concluded that
no aspect of the foster care system had been the exclusive province of
Pennsylvania and distinguished the state’s care for foster children from its
provision of medical services to prisoners, which constituted state action under
West v. Atkins, 487 U.S. 42, 54-55, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). Id.
at 343–47.
In distinguishing West, the Court determined that, while “[c]onstitutional
obligations on a state are powerful evidence that the required functions are
traditionally governmental,” neither the “federal Constitution nor the
Pennsylvania Constitution requires that the state provide care for foster children.”
Id. at 344. Foster care in Pennsylvania, rather, “is a creature of statute, begun in
1981 under Pennsylvania’s Juvenile Act.” Id. The Leshko Court also determined
that, unlike the prisoner in West, plaintiff’s care was not delivered in an
institutional setting. Further, although only Pennsylvania could select plaintiff's
caregiver, as in the case in prison, “[i]t simply cannot be said that, historically,
foster children in Pennsylvania could only turn to caregivers authorized by the
Commonwealth.” Id. at 345–47.
Similarly, Pennsylvania’s provision of care, custody and habilitative services to
the mentally disabled is also a “creature of statute,” which is not mandated by the
federal Constitution or the Pennsylvania Constitution. Although Plaintiff was not

8

cared for in a private residence, as the plaintiff in Leshko, he received treatment in
a private “group home.” See (Compl.¶¶ 10–28.) Plaintiff has not offered any
allegations to suggest that his experience in this setting was comparable to the
“tight security-based strictures of prison life,” such that “persuasive institutional
influences” render his situation analogous to that of a prisoner or an involuntary
civil commitment who is constrained by authority that is “quintessentially
governmental.” Leshko, 423 F.3d at 346. Further, as in Leshko, mentally disabled
citizens have not, historically, been required to turn to Pennsylvania or stateauthorized entities for care, custody and habilitative services. See id. at 345–47.
Zarebicki, 2011 WL 2582140, at *5-6.
The foregoing analysis appears to apply with equal force to the question of whether the
care and custody of individuals with intellectual disabilities has been a traditional and exclusive
government function in New Jersey. See, e.g., Deborah Spitalnik, Developmental Disabilities in
New Jersey: Where New Jersey Stands in Services to People with Developmental Disabilities
and National Policy Trends, The Elizabeth M. Boggs Center on Developmental Disabilities
(2010) (70% of the “caseload of the [New Jersey] Division of Developmental Disabilities, live at
home with their families”); New Jersey Ass’n for Retarded Citizens, Inc. v. New Jersey Dept. of
Human Services, 445 A.2d 704, 711-12 (N.J. 1982) (holding that New Jersey statutes grant
intellectually disabled individuals “the legal right to treatment, education, training, habilitation,
care and protection.”) Although, the foregoing casts significant doubt on Plaintiffs’ ability to
proceed under the public function theory, I am not prepared to conclude that any proposed
amendment in this regard would be futile.
Alternatively, Plaintiffs contend that they have sufficiently alleged that Defendants are
state actors under the symbiotic relationship test. In Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961), the Supreme Court held “that a coffee shop, which leased property located
in a government owned parking garage, was integrated with the parking facility as an organic
part of the government operation and was party to a mutually beneficial relationship with the

9

government.” Brown, 250 F.3d at 803. “Out of these facts arose the ‘symbiotic relationship test,’
which asks whether the government has ‘insinuated itself into a position of interdependence’
with the defendant.” Id. “While the exact contours of this state action inquiry are difficult to
delineate, the interdependence between the state and private actor must be pronounced before the
law will transform the private actor into a state actor.” Groman v. Township of Manalapan, 47
F.3d 628, 641 (3d Cir. 1995).
In support of their “symbiotic relationship” theory, Plaintiffs note that the Complaint
alleges that:
The federal funding structure (which includes Medicare, Medicaid and ICF/IID
[Intermediate Care Facilities for Individuals with Intellectual Disabilities]
funding) between various states including but not limited to Pennsylvania, New
Jersey and New York and Melmark creates a symbiotic relationship between the
two as the states derive substantial benefit by providing federal funding to
Melmark on behalf of their citizens who are Melmark residents.
(Compl. ¶ 73.) Plaintiffs cite to Children’s Hospital of Philadelphia v. Horizon NJ Health, 2008
WL 4330311 (E.D. Pa. Sept. 22, 2008) wherein the court held that allegations that the defendant
received approximately fifty percent of its funding from federal sources and that the state derived
a substantial benefit from such funding sufficient to allege a symbiotic relationship. Id. at *1.
Plaintiffs urge that under Horizon NJ Health, the Complaint contains sufficient allegations to
proceed under the symbiotic relationship test.
Contrary to Plaintiffs’ assertion and the holding in Childrens Hosp. v. Horizon NJ Health,
a private entity’s receipt of state funding does not transform it into a state actor. See Blum v.
Yaretsky, 457 U.S. 991, 1011 (1982) (rejecting argument that nursing homes were state actors in
light of “state subsidization of the operating and capital costs of the facilities, payment of the
medical expenses of more than 90% of the patients in the facilities, and the licensing of the
facilities by the State”); Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982) (school not a state

10

actor even though “virtually all of the school’s income was derived from government funding”);
Klavan v. Crozer-Chester Med. Ctr., 60 F. Supp. 2d 436, 443 (E.D. Pa. 1999) (“defendants’
receipt of government funding, even if combined with [extensive regulation], does not render
defendants state actors, regardless of which test we employ”); Edwards v. Lutheran Sr. Services
of Dover, Inc., 603 F. Supp. 315, 321 (D. Del. 1985) (“extensive state regulation and funding
are, by themselves, insufficient to establish a symbiotic relationship.”) Therefore, I conclude that
Plaintiffs have failed to allege facts sufficient to support their argument that Defendants are state
actors under the symbiotic relationship test.
Plaintiffs will be given an opportunity to amend their Complaint to attempt to cure, if
possible, the foregoing deficiencies.
ii.

Count 2 – 42 U.S.C. § 1985(3)

Defendants have also moved to dismiss Plaintiffs’ section 1985 claim on the grounds that
the Complaint fails to allege that the purported conspiracy to deprive Schutt of his constitutional
rights was motivated by class based discriminatory animus.
“[I]n order to state a claim under section 1985(3), a plaintiff must allege: (1) a
conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive,
directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act
in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any
right or privilege of a citizen of the United States.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.
1997) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)). Regarding the second
element, a plaintiff must allege that “the conspiracy was motivated by discriminatory animus
against an identifiable class.” Farber v. City of Paterson, 440 F.3d 131, 135 (3d Cir. 2006).
Commercial and economic animus cannot form the basis of a section 1985 claim. Lake, 112 F.3d

11

at 685 (citing United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825
(1983)).
Defendants note that the Complaint fails to make any allegation that Defendants’ conduct
was motivated by class based animus. In their response, Plaintiffs fail to identify any allegations
in the Complaint to the contrary. Rather, Plaintiffs’ response is devoted to arguing that Schutt, as
an individual with intellectual disabilities, is a member of a protected class. However,
Defendants have not moved to dismiss the section 1985 claim on the grounds that Schutt is not a
member of a protected class. Instead, Defendants correctly note that the Complaint alleges that
Defendants’ actions were economically motivated as the decision to transport Schutt to Kennedy
Hospital was made in response to the fact that Melmark had not received any funding for
Schutt’s care for over a year. (See, e.g., Compl. ¶¶ 27, 31, 33 and 37.) These allegations do not
plausibly suggest that Defendants’ alleged conspiracy was motivated by animus towards Schutt’s
status as an individual with intellectual disabilities. As such, the Complaint fails to state a claim
under section 1985 and Defendants’ motion to dismiss Count 2 will be granted without
prejudice.
iii.

Count 4 – Negligence Per Se

Defendants have moved to dismiss the negligence per se claim Plaintiffs have brought
against all Defendants. Under the doctrine of negligence per se, a violation of a statute or
regulation may be grounds for finding that a defendant is per se liable. Mest v. Cabot Corp., 449
F.3d 502, 518 (3d Cir. 2006). To assert a claim for negligence per se, the plaintiff must
demonstrate that: “1) the statute or regulation clearly applies to the conduct of the defendant; 2)
the defendant violated the statute or regulation; 3) the violation of the statute proximately caused
the plaintiff’s injuries; and 4) the statute’s purpose is, at least in part, to protect the interest of the

12

plaintiff individually, as opposed to the public.” Id. (citing Wagner v. Anzon, Inc., 684 A.2d 570,
574 (Pa. Super. 1996)).
In support of the negligence per se claim, Plaintiffs allege that Defendants violated
multiple provisions of the Omnibus Budget Reconciliation Act (“OBRA”), including the
following:
a. 42 CFR §483.12(a)(3), when a facility transfers or discharges a resident under
any of the circumstances specified in paragraphs (a)(2)(i) through (5) of this
section, the resident’s clinical record must be documented.
b. 42 CFR §483.12(a)(4), before a facility transfers or discharges a resident, the
facility must (i) notify the resident and, if known, a family member or legal
representative of the resident of the transfer or discharge and the reasons for
the move must be in writing and in a language and manner they understand;
(ii) record the reasons in the resident’s clinical record; and (iii) include in the
notice the items described in paragraph (a)(6) of this section.
c. 42 CFR §483.12(a)(5), except as specified in paragraphs (a)(5)(ii) and (a)(8)
of this section, the notice of transfer or discharge required in paragraph (a)(4)
of this section must be made by the facility at least 30 days before the resident
is transferred or discharged.
d. 42 CFR §483.12(a)(6), the written notice specified in paragraph (a)(4) of this
section must include the following: (i) reason for discharge; (ii) effective date
of transfer or discharge; (iii) location to which the resident is transferred or
discharged; (iv) a statement that the resident has a right to appeal the action to
the state; (v) the name, address and telephone number of the State long term
care ombudsman; (vi) for nursing facility residents with developmental
disabilities, the mailing address and telephone number of the agency
responsible for the protection and advocacy of the developmentally disabled
individuals established under Part C of the Development Disabilities
Assistance and Bill of Rights Act; and (vii) for nursing facility residents who
are mentally ill, the mailing address and telephone number of the agency
responsible for the protection and advocacy of mentally ill individuals
established under the Protection and Advocacy for Mentally Ill Individuals
Act.
(Compl. ¶ 88.)

13

In their motion, Defendants argue that the Complaint does not include “any facts to
support the allegations that Defendants violated [these] provisions of the statute or that OBRA
would even apply to Melmark.” (Defs.’ Mot. p. 20.)
I agree with Defendants that the Complaint does not contain any allegations that
Melmark, as an institution, is subject to the aforementioned provisions of OBRA. Additionally,
even if the Complaint did so allege, those allegations may be inconsistent with the scope of
OBRA’s coverage. The provisions of OBRA on which Plaintiffs rely apply to “facilities,” a term
which:
means a skilled nursing facility (SNF) that meets the requirements of sections
1819(a), (b), (c), and (d) of the Act, or a nursing facility (NF) that meets the
requirements of sections 1919(a), (b), (c), and (d) of the Act. “Facility” may
include a distinct part of an institution (as defined in paragraph (b) of this section
and specified in § 440.40 and § 440.155 of this chapter), but does not include an
institution for individuals with intellectual disabilities or persons with related
conditions described in § 440.150 of this chapter.
42 C.F.R. § 483.5 (emphasis added).
Plaintiffs describe Melmark as “comprehensive multi-service long-term care provider of
residential, educational, vocational and therapeutic services for children and adults with
intellectual disabilities.” (Compl. ¶ 4 (emphasis added.)) As such, there appears to be an issue as
to whether the referenced provisions of OBRA apply to Melmark. Defendants’ motion to dismiss
Count 4 will be granted without prejudice and Plaintiffs will be given leave to attempt, if
possible, to cure these deficiencies.
iv.

Counts 5 and 6 – Intentional infliction of Emotional Distress

Defendants have also moved to dismiss the intentional infliction of emotional distress
(“IIED”) claims brought by Schutt (Count 5) as well as his parents (Count 6).
The tort of intentional infliction of emotional distress “requires, inter alia, intentional
extreme and outrageous conduct on the part of the tortfeasor, which causes severe emotional
14

distress to the plaintiff.” Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 216 (Pa. Super.
2012).4 “However, ‘where such conduct is directed at a third person’ the person claiming the
emotional distress must also establish that he is a member of the victim’s immediate family and
that he or she was ‘present at the time’ of the tortious conduct.” Id. (citing Restatement (Second)
Torts § 46(2)).
Defendants argue that the actions the Complaint alleges do not rise to the level of
“extreme and outrageous” conduct. Rather, Defendants urge that they continued to care for
Schutt for approximately thirteen months without receiving any funding and that when Schutt’s
“behaviors became too aggressive, he was transported to a well-known medical center.” (Defs.’
Mot. p. 23.)
Accepting Plaintiffs’ factual allegations as true, I conclude that the Complaint sets forth
conduct that could reasonably be described as extreme and outrageous. Plaintiffs allege that
Defendants left Schutt, a non-verbal individual with serious intellectual disabilities, at a facility
without providing the staff there with adequate information about his condition or medications.
Plaintiffs further allege that, as a result of Defendants’ conduct, Schutt was confined, sedated,
not permitted to bathe for eight days and, eventually had several seizures. Arguments disputing
Plaintiffs’ characterizations of Defendants’ intentions or what occurred at Kennedy Hospital are
not appropriate at this juncture and do not nullify the Complaint’s factual allegations.
Defendants’ motion to dismiss the Complaint’s IIED claims for failure to allege extreme and
outrageous conduct will be denied.

4

The Pennsylvania Supreme Court has “noted that it has not had the occasion to adopt the tort of
IIED expressly, but the Court has acknowledged its existence and has analyzed its elements in
various respects.” Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 216 (Pa. Super. 2012)
(citing to Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998); Kazatsky v. King David Mem’l Park,
Inc., 527 A.2d 988, 988-89 (Pa. 1987)).
15

Defendants have also moved to dismiss the IIED claim brought on behalf of Schutt’s
parents on an additional ground. Defendants urge that the IIED claim fails to allege that Schutt’s
parents were “present” when the alleged tortious conduct occurred.
The Pennsylvania Supreme Court narrowly construed the presence requirement in Taylor
v. Albert Einstein Medical Center, 754 A.2d 650 (Pa. 2000). That case concerned the death of a
16–year–old child during a medical procedure. The Pennsylvania Supreme Court held that the
child’s mother could not recover for IIED because she was in the other room and, therefore, not
present when the procedure was performed. Id. at 652.
I conclude that Schutt’s parents have not pled a claim for IIED because the Complaint
does not allege that they were present when any of the supposedly tortious conduct occurred.
Specifically, the Complaint does not allege that they were present when Schutt was removed
from Melmark or any point during his eight day stay at Kennedy Hospital.5 Given that the
presence requirement is narrowly construed and the complete absence of any allegations to
suggest that they personally observed any of the allegedly tortious conduct, the Complaint fails
to state a claim for IIED on behalf of Schutt’s parents.
v.

Count 7 – Professional Malpractice

Plaintiffs have brought a professional malpractice claim against Woods and Melmark.
Defendants have moved to dismiss this claim on the grounds that Plaintiffs have failed to file a
Certificate of Merit as is required by Pennsylvania Rule of Civil Procedure 1042.6 In their

5

I note that, in their response to the motion to dismiss, Plaintiffs assert that Schutt’s parents were
present at Kennedy Hospital. Even assuming this allegation is sufficient to satisfy the “presence
requirement,” it does not appear in the Complaint.
6

Pennsylvania Rule of Civil Procedure 1042 requires that a plaintiff submit a Certificate of
Merit within sixty days of the filing of a Complaint which includes a professional liability claim.
“Pennsylvania Rule 1042.3, mandating a certificate of merit in professional negligence claims, is
16

response, Plaintiffs acknowledge that they did not file a Certificate of Merit and stipulate to the
dismissal of Count 7 without prejudice.
vi.

Damages

Lastly, Defendants have moved to dismiss Plaintiffs’ request for punitive damages on the
basis that the Complaint does not allege any conduct that could be considered willful, wanton or
in reckless disregard for a person’s welfare. For the reasons discussed above in the context of
Defendants’ motion to dismiss Count 5, the Complaint alleges conduct that could plausibly
evidence a reckless disregard for Schutt’s welfare. If accepted as true, the allegation that
Melmark “abandon[ed Schutt], a non-verbal, intellectually disabled and autistic individual, in a
New Jersey crisis center without medical administration records and without waiting for [him] to
be evaluated” might support a claim for punitive damages. (Pls.’ Resp. p. 14.)
IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss will be granted in part and

denied in part. An appropriate Order follows.

substantive law under the Erie Rule and must be applied as such by federal courts.” LiggonRedding v. Est. of Sugarman, 659 F.3d 258, 265 (3d Cir. 2011).

17