COURT v. LOEWS PHILADELPHIA HOTEL, INC. et al

Filing 40

MEMORANDUM AND/OR OPINION DENYING GYM DEFENDANTS' MOTION TO DISMISS (DOCKET NO. 29). AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE GENE E.K. PRATTER ON 2/10/17. 2/13/17 ENTERED AND COPIES E-MAILED.(rab, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ELENA MYERS COURT,
Plaintiff,
v.
LOEWS PHILADELPHIA
HOTEL, INC. et al.,
Defendants.

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CIVIL ACTION

No. 16-4848

PRATTER, J.

FEBRUARY 10, 2017
MEMORANDUM

Elena Myers Court sued (i) Loews Philadelphia Hotel, Inc.; Twelfth Street Hotel
Associates; LPH Partner, Inc.; and Loews Hotel Holding Company (the “Loews Defendants”);
and (ii) LLB Gym, LLC; 12FIT LLC; and Frank Baer (the “Gym Defendants”), for negligence
(Count 3) and negligent infliction of emotional distress (“NIED”) (Count 4) arising out of an
alleged sexual assault perpetrated by a massage therapist at a Loews’ in-house spa operated by
the Gym Defendants. 1 The Gym Defendants have moved to dismiss the claims against them on
the basis that provisions of the Pennsylvania Criminal History Record Information Act absolve
them from all liability arising out of their hiring of Jerome McNeill, the massage therapist who
allegedly assaulted Ms. Court. 2 Because Ms. Court has stated a plausible claim for negligence,
the Court will deny the Gym Defendants’ Motion to Dismiss.

1

The Complaint also names Jerome McNeill, the alleged perpetrator, as a defendant,
asserting causes of action against him for assault and battery (Count 1) and negligence and
negligence per se (Count 2). Mr. McNeill, however, has not appeared in this action.
2

The Loews Defendants have not moved to dismiss the claims asserted against them.
1

I.

ALLEGATIONS IN THE COMPLAINT
Ms. Court, while a guest at the Loews Philadelphia Hotel in September 2014, scheduled a

sports massage at the 12Fit Spa & Gym, the Hotel’s in-house spa. 3 12Fit assigned Ms. Court a
male masseuse, Jerome McNeill. The massage began like many others—Ms. Court undressed to
just her underwear and lay face down on a massage table, covering herself with sheets and a
blanket. The massage quickly escalated, however, to a massage unlike any other Ms. Court had
ever experienced. When Mr. McNeill began to massage Ms. Court's legs, he pulled the sheets
covering Ms. Court up to a point where Ms. Court’s private areas were exposed. Mr. McNeill
proceeded to massage up Ms. Court’s legs until his hands were touching her underwear and
rubbing against her genitals. Ms. Court experienced complete shock as Mr. McNeill continued
to massage her buttocks in a groping manner, which included repeated touching of her
underwear and genitals. Mr. McNeill then instructed Ms. Court to turn onto her back and
continued to massage Ms. Court’s upper legs in a similar fashion, with his hands repeatedly
touching Ms. Court’s underwear and genitals. Ms. Court did not consent to the overtly sexual
nature of the physical contact Mr. McNeill repeatedly made to her private areas. Ms. Court, at 5’
4”, who was undressed and alone in a room with the 6’ 1” Mr. McNeill, was too afraid to speak
while Mr. McNeill was groping at her body.
Immediately after the massage, Ms. Court informed 12Fit’s manager that Mr. McNeill
had assaulted her. The manager did little to follow up on Ms. Court’s allegation, merely leaving
a note for his superior that Ms. Court was “uncomfortable” during her massage and “hinted to
3

The 12Fit Spa & Gym operated the Hotel’s in-house spa and gym pursuant to a
December 2013 lease agreement. The lease included provisions that 12Fit would: (i) operate its
facilities in accordance with the standards maintained by the exercise facilities of other high
quality convention hotels in Philadelphia; (ii) operate its facilities in accordance with the Hotel’s
standards and policies; (iii) provide all employees necessary to operate the facilities and that all
employees would be 12Fit employees only; and (iv) not employ any person whose conduct was
determined to be improper. See Compl. ¶ 33 (Doc. No. 1).
2

being personally violated” by Mr. McNeill. Compl. ¶ 64. Ms. Court also spoke with Frank
Baer, the president of LLB Gym and 12Fit, informing him that Mr. McNeill touched her “in a
way she didn’t feel comfortable with.” Compl. ¶ 65. Mr. Baer acted “abrasively and
dismissively” towards Ms. Court, Compl. ¶ 66, and did not encourage her to report her
allegations to Hotel personnel or the police. Mr. Baer and the 12Fit manager also did not report
the allegations to Hotel personnel or the police. Mr. McNeill denied Ms. Court’s allegations
when approached by Mr. Baer.
Mr. Baer also received a phone call from Ms. Court’s mother the day of the alleged
assault. During their phone call, Ms. Court’s mother provided details of the incident, including
that during the massage Mr. McNeill was “rubbing his hands up and down [Ms. Court’s] leg
from foot [sic] up to her butt and crack and crotch,” which caused Ms. Court to feel “personally
violated.” Compl. ¶ 69. Even after this phone call, Mr. Baer did not inform Hotel personnel or
the police of the reported sexual assault. Hotel management only learned about the incident after
receiving a voicemail from Ms. Court’s mother concerning the allegations.
After receiving Ms. Court’s mother’s message, and before speaking to Ms. Court’s
mother, the Managing Director of the Hotel approached Mr. Baer to learn more details about the
allegations. Mr. Baer provided the Managing Director with Mr. McNeill’s professional licenses
and insurance information, as well as his notes from his conversations with Ms. Court and her
mother. In conversations with Ms. Court and her mother, the Managing Director sought to
deflect blame away from the Loews and Gym Defendants and onto Mr. McNeill. The Managing
Director also worked to persuade Ms. Court and her mother not to file a police report or
otherwise contact law enforcement. The Managing Director ultimately succeeded in persuading
Ms. Court not to file charges, informing Mr. Baer that he considered “the matter closed” after

3

comping Ms. Court the cost of a night’s stay at the hotel. Compl. ¶ 78. Neither the Loews
Defendants nor the Gym Defendants took any action with respect to Mr. McNeill as a result of
Ms. Court’s allegations.
The Gym Defendants had employed Mr. McNeill for less than two months at the time of
the incident. Mr. McNeill came to the Gym Defendants’ attention in mid-July 2014 through
another of its massage therapists, who had previously worked with Mr. McNeill at a Hand &
Stone Massage and Facial Spa location. Unbeknownst to the Gym Defendants, Hand & Stone
had fired Mr. McNeill on July 15, 2014 after a customer complained that Mr. McNeill had
grabbed his genitals during a massage. This occurred two days before Mr. McNeill applied for a
job with the Gym Defendants. The Gym Defendants were unaware of Mr. McNeill’s past
employment at Hand & Stone because Mr. McNeill did not list Hand & Stone as a past employer
on the employment history portion of his application. In fact, the job application’s employment
history section was completely blank. A short resume Mr. McNeill provided contained
employment information only through July 2013, a year before Mr. McNeill’s employment by
the Gym Defendants. The job application also required Mr. McNeill to address whether he had
ever been convicted of a crime. Mr. McNeill answered affirmatively, informing the Gym
Defendants that he had been convicted for “Fleeing and [sic] officer on a motorcycle.” Compl.
¶ 42. As part of his job application, Mr. McNeill authorized the Gym Defendants to conduct
checks of his criminal and employment histories. After the Gym Defendants hired Mr. McNeill,
he informed them of his past employment at Hand & Stone, but did not mention why he was no
longer employed by Hand & Stone.
The Gym Defendants never conducted a criminal history check and failed to verify Mr.
McNeill’s employment history. Nor did the Gym Defendants contact Hand & Stone after Mr.

4

McNeill informed them of his past employment to verify his employment or inquire into why
Mr. McNeill no longer worked there. Had the Gym Defendants conducted a criminal history
check, they would have learned that Mr. McNeill (i) had been arrested three times for traffic
offenses involving fleeing or evading the police and (ii) was arrested and charged in 2007 with
the alleged rape of a minor. 4 Had the Gym Defendants taken steps to verify Mr. McNeill’s past
employment history, they would have discovered that Mr. McNeill had recently been fired from
a position as a massage therapist for touching a male customer’s genitals.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes testing the legal sufficiency of a

complaint. Although Federal Rule of Civil Procedure 8 requires only “a short and plain
statement of the claim showing that the pleader is entitled to relief,” in order to “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal quotation marks omitted)
(alteration in original), the plaintiff must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. (citation omitted).
To survive a motion to dismiss, the plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Specifically, “[f]actual allegations must be enough
to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations
omitted). The question is not whether the claimant will ultimately prevail, but whether the
complaint is “sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521,
529-30 (2011).
4

Mr. McNeill pleaded guilty to the traffic offenses. The charges related to the alleged rape
were withdrawn or nolle prossed.
5

To decide a Rule 12(b)(6) motion to dismiss, the Court may look only to the facts alleged
in the complaint and its attachments. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d
1250, 1261 (3d Cir. 1994). The Court may also consider documents that are “integral to or
explicitly relied upon in the complaint . . . without converting the motion [to dismiss] into one
for summary judgment.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997) (citation omitted). The Court must accept as true all well-pleaded allegations in the
complaint and view them in the light most favorable to the plaintiff. Angelastro v. PrudentialBache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). Likewise, the Court must accept as true all
reasonable inferences that may be drawn from the allegations, and view those facts and
inferences in the light most favorable to the non-moving party. See Rocks v. City of Phila., 868
F.2d 644, 645 (3d Cir. 1989).
III.

DISCUSSION
Ms. Court’s claims against the Gym Defendants are Pennsylvania state law claims

sounding in negligence. The Gym Defendants argue that they had no duty to conduct a more
thorough pre-employment investigation into Mr. McNeill because the Pennsylvania Criminal
History Record Information Act (“CHRIA”) 5 would have legally prohibited them from
considering any of the information they could have discovered about Mr. McNeill’s past.
5

Section 9125 of the CHRIA provides, in pertinent part:
(a) General Rule.--Whenever an employer is in receipt of information which is
part of an employment applicant's criminal history record information file, it
may use that information for the purpose of deciding whether or not to hire the
applicant, only in accordance with this section.
(b) Use of information.--Felony and misdemeanor convictions may be
considered by the employer only to the extent to which they relate to the
applicant's suitability for employment in the position for which he has applied.

18 Pa.C.S. § 9125. “Criminal history record information” includes “dates and notations of
arrests.” 18 Pa.C.S. § 9102.
6

Essentially, the Gym Defendants argue that Ms. Court’s negligence claims can succeed only if
the Court determines that the Gym Defendants should have violated the CHRIA during Mr.
McNeill’s application process. This argument, however, relies on a counterfactual analysis of
what might have happened based on hypothetical facts that are not in the Complaint. At this
stage, on a motion to dismiss, the Court’s role is to analyze the sufficiency of the allegations in
the complaint. The question, then, is whether Ms. Court has stated plausible claims for
negligence and NIED. She has.
A.

Negligence (Count 3)

The Complaint’s central allegations are based on a theory that the Gym Defendants were
negligent in hiring and/or supervising Mr. McNeill. A claim for negligent hiring or supervision
under Pennsylvania law requires a plaintiff to demonstrate the four elements of a common law
negligence claim: duty, breach, causation, and damages. Belmont v. MB Inv. Partners, Inc., 708
F.3d 470, 487-88 (3d Cir. 2013) (citing Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 42
(Pa. Super. 2000)). A claim for negligent hiring under Pennsylvania law requires a plaintiff to
demonstrate that (i) an employer knew or should have known of an employee’s propensity for
violence, and (ii) the employment created a situation where the violence could harm a third
party. Coath v. Jones, 419 A.2d 1249, 1250 (Pa. Super. 1980); see also Rios v. Marv Loves 1,
No. 13-1619, 2015 WL 5161314, at *13 (E.D. Pa. Sept. 2, 2015). To recover for a claim of
negligent supervision, a plaintiff must demonstrate that an employer failed to exercise ordinary
care to prevent intentional harm to a third party when that harm was (i) committed on the
employer’s premises, (ii) committed by an employee acting outside the scope of his or her
employment, and (iii) was reasonably foreseeable. Belmont, 708 F.3d at 487-88. Harm is
reasonably foreseeable when “it is part of a general type of injury that has a reasonable

7

likelihood of occurring.” Id. at 491. An employer can only be liable for negligent supervision if
it knew, or should have known, that “the employee ha[d] dangerous propensities that might cause
harm to a third party.” Id.
At issue here is whether (i) Ms. Court sufficiently alleged that the Gym Defendants had a
duty to investigate Mr. McNeill’s criminal and employment histories such that they should have
known of his alleged propensity for sexual violence, (ii) Ms. Court sufficiently alleged that the
Gym Defendants breached that duty, and (iii) the CHRIA operates to absolve the Gym
Defendants from any liability arising out of their hiring of Mr. McNeill.
1.

Duty to Conduct Pre-employment Investigation

Employers have a duty under Pennsylvania law “to exercise reasonable care in selecting,
supervising and controlling employees.” R.A. ex rel. N.A. v. First Church of Christ, 748 A.2d
692, 697 (Pa. Super. 2000); see also Belmont, 708 F.3d at 488. Pennsylvania appellate courts
have looked toward § 213 of the Restatement (Second) of Agency and § 317 of the Restatement
(Second) of Torts when determining an employer’s liability in negligent hiring and supervision
cases. See Dempsey v. Walso Bureau, Inc., 246 A.2d 418, 421 (Pa. 1968) (noting Pennsylvania’s
adoption of § 317 of the Restatement (Second) of Torts); Brezenski, 755 A.2d at 42 (explaining
that § 213 and § 317 do “no more than restate the existing tort law of Pennsylvania” (quoting
First Church of Christ, 748 A.2d at 697)); Heller v. Patwil Homes, Inc., 713 A.2d 105, 107 (Pa.
Super. 1998) (“Our recognition of direct employer liability for its negligence is consistent with
Section 213 of the Restatement (Second) of Agency . . . .”).
Section 213 provides that “[a] person conducting an activity through servants or other
agents is subject to liability for harm resulting from his conduct if he is negligent or reckless . . .
in the employment of improper persons or instrumentalities in work involving risk of harm to

8

others . . . .” Restatement (Second) of Agency § 213 (1958). Comment d to § 213 explains that
an employer’s direct liability for the action of its employee can stem from an employer’s failure
to take “the care which a prudent man would take in selecting the person for the business in
hand.” Restatement (Second) of Agency § 213 cmt. d. Where a prospective employee’s work
will subject third parties to the risk of harm, “there is a special duty of investigation.”
Restatement (Second) of Agency § 213 cmt. d.; cf. Welsh Mfg., Div. of Textron, Inc. v.
Pinerkton’s, Inc., 474 A.2d 436, 440-41 (R.I. 1984) (explaining that the scope of an employer’s
pre-employment investigation is correlated with the degree of risk posed by the potential
employment); Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 913 (Minn. 1983) (“The scope of the
[pre-employment] investigation is directly related to the severity of risk third parties are
subjected to by an incompetent employee.”). 6 Section 317, meanwhile, imposes liability on an
employer when the employer “knew or, in the exercise of ordinary care, should have known of
the necessity for exercising control of [its] employee.” Dempsey, 246 A.2d at 422; accord
Restatement (Second) or Torts § 317 (1965).
The job of a massage therapist is highly sensitive and carries a significant amount of risk
to third parties. Massage therapists come into contact with the public on a daily basis. Massage
therapists’ jobs place them in a position of power over potentially vulnerable clients, who are
frequently nude or semi-nude. There is always a risk that a massage therapist will abuse his or
her power and act inappropriately towards a vulnerable client. Ms. Court’s allegations are an
example of what can transpire if an employer places its trust in the wrong massage therapist.
6

The Pennsylvania Supreme Court has never directly addressed § 213. Accordingly, the
Court has looked to Welsh and Ponticas, decisions from other state supreme courts analyzing
§ 213, for guidance. See Koppers Co., Inc. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1445 (3d
Cir. 1996) (“In the absence of guidance from the state's highest court, we must look to decisions
of state intermediate appellate courts, of federal courts interpreting that state's law, and of other
state supreme courts that have addressed the issue.”).
9

Accordingly, the Court finds that Ms. Court has sufficiently pleaded that the Gym Defendants
had a duty to, at a minimum, conduct a more thorough pre-employment investigation into Mr.
McNeill’s prior employment history.
2.

Breach of Duty to Conduct Pre-employment Investigation

Pennsylvania courts have suggested that an employer can be held responsible for the
intentional acts of employees where a reasonable investigation into an employee’s background
would have revealed prior criminal or violent propensities related to the employee’s position.
See, e.g., Dempsey, 246 A.2d at 423 (employer not liable for negligent hiring or supervision
because (i) the employer’s investigation into the employee’s employment and criminal history
revealed no wrongdoing and (ii) there was no evidence that a more thorough investigation would
have revealed any prior misconduct by the employee); Heller, 713 A.2d at 106-09 (employer not
liable for negligent hiring because the misconduct that would have been revealed by a more
thorough investigation was unrelated to the job for which the employee was hired).
Here, in contrast to the employer in Dempsey, Ms. Court has alleged that the Gym
Defendants failed to conduct any investigation into Mr. McNeill’s past before hiring him, let
alone a reasonable investigation. 7 The Complaint alleges that the Gym Defendants did not
inquire into the one year gap in Mr. McNeill’s employment history prior to his employment and
that the Gym Defendants failed to contact Hand & Stone after Mr. McNeill informed them that
Hand & Stone was his most recent employer. It can also be reasonably inferred from the
7

At oral argument, counsel for the Gym Defendants suggested that the Court should infer
from the Complaint’s allegation that “12Fit first became aware of Mr. McNeill . . . after another
one of its massage therapists . . . indicated that she worked with Mr. McNeill at the Hand &
Stone Massage and Facial Spa,” Compl. ¶ 37, that the Gym Defendants took steps to verify Mr.
McNeill’s past employment at Hand & Stone. Not only does the Complaint fail to include any
indication that the Gym Defendants verified Mr. McNeill’s employment history, but the Court
must draw all reasonable inferences from the Complaint in Ms. Court’s favor, not in favor of the
Gym Defendants. See Rocks, 868 F.2d at 645.
10

Complaint that any type of investigation into Mr. McNeill’s prior employment would have
revealed the Hand & Stone incident prior to Mr. McNeill coming into contact with Ms. Court.
And, unlike in Heller, a reasonable investigation into Mr. McNeill’s past would have revealed
misconduct directly related to Mr. McNeill’s job as a massage therapist.
The Gym Defendants argue that they satisfied any duty owed to Ms. Court because they
justifiably relied on Mr. McNeill’s massage therapy license, which was in good standing at the
time the Gym Defendants hired Mr. McNeill. The Gym Defendants assert that the
Commonwealth of Pennsylvania regulates massage therapists and that Mr. McNeill’s massage
license indicated that he was of “good moral character.” See 63 P.S. §§ 627.5(a)(1), 627.5(b)(2).
This argument is unavailing. Pennsylvania’s massage therapy licensing board relies on massage
therapists to self-report “the filing of formal criminal charges.” 49 Pa. Code § 20.31(d)(2). The
Court is not convinced that, as a matter of law, an employer’s duty to conduct a pre-employment
investigation is met solely by relying on a license subject to self-reporting requirements.
Furthermore, the Court is not prepared to acknowledge a safe harbor from negligent hiring
and/or supervision actions for employers that rely on a prospective employee’s professional
license. The Gym Defendants have provided no case law to support such a proposition.
Accordingly, the Court finds that Ms. Court has sufficiently pleaded that that the Gym
Defendants breached a duty, which resulted in her injuries. See, e.g., Doe v. Schneider, 667 F.
Supp. 2d 524, 531-32 (E.D. Pa. 2009) (allowing negligent hiring claim to survive a motion to
dismiss where a plaintiff alleged that an employer “failed to properly investigate [an employee’s]
background before hiring him”).

11

3.

The Gym Defendants’ CHRIA Defense

The Gym Defendant’s Motion to Dismiss primarily argues that had the Gym Defendants
taken the steps Ms. Court alleges they were negligent in failing to do (e.g., investigating Mr.
McNeill’s criminal and employment histories), they would only have discovered information that
Pennsylvania law prohibits them from taking into consideration when making their hiring
decisions. The Gym Defendants argue that the law cannot impose a duty on an employer to
break the law. It is premature at this juncture, however, to analyze the hypothetical application
of the CHRIA based on information that the Gym Defendants might have accessed had they
conducted a more thorough pre-employment investigation into Mr. McNeill’s past.
Furthermore, the allegations in the Complaint do not, at least need not, necessarily
implicate the CHRIA. The CHRIA limits what information from an applicant’s criminal record
information file an employer can consider when making hiring decisions. Employers can
consider an applicant’s prior convictions to the extent they relate to the position sought;
employers cannot consider an applicant’s prior arrests. 18 Pa.C.S. § 9125; Foxworth v. Pa. State
Police, 228 F. App’x 151, 154-55 (3d Cir. 2007). The CHRIA does not shield an applicant’s
prior misconduct from an employer’s hiring determination when the employer learns about the
misconduct through a means other than the applicant’s criminal record information file. See
Foxworth, 228 F. App’x at 155. In Foxworth, the Third Circuit Court of Appeals noted that
§ 9125 did not apply to an employer’s consideration of an applicant’s “criminal misbehavior”
because the employer learned about the misconduct through the applicant’s own disclosure on an
application form, not through a criminal records check. Id.
Ms. Court does not allege that the Gym Defendants had access to Mr. McNeill’s criminal
record information file. And, while the Complaint does allege that the Gym Defendants were

12

negligent in not conducting a criminal background check, the Complaint also alleges that the
Gym Defendants were negligent in failing to verify Mr. McNeill’s employment history. Had the
Gym Defendants learned about the Hand & Stone incident through a more thorough
investigation into Mr. McNeill’s employment history, the CHRIA would not have prevented
them from taking that incident into consideration when making their employment
determination. 8
*

*

*

Ms. Court sufficiently pleaded that the Gym Defendants breached a duty to exercise
reasonable care in hiring and supervising Mr. McNeill, which resulted in Ms. Court’s injury.
Accordingly, the Court will deny the Gym Defendants’ motion to dismiss Ms. Court’s
negligence claim.
B.

Negligent Infliction of Emotional Distress (Count 4)

Pennsylvania law recognizes a claim for NIED in four factual scenarios: “(1) situations
where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was
subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably
experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to
8

Whether Mr. McNeill’s arrest in connection with the Hand & Stone incident would even
have appeared on a criminal background check at the time of Mr. McNeill’s July 17, 2014
application is not clear to the Court. While the Complaint indicates that Mr. McNeill was
arrested on July 30, 2014, Compl. ¶ 50, both parties’ briefs and Mr. McNeill’s criminal docket
sheet indicate Mr. McNeill was arrested on July 15, 2014. See Def. Br. in Supp. of Mot. to
Dismiss 3, Ex. C at 1 (Doc. No. 29); Pl. Br. in Opp. 11 (Doc. No. 34). To further complicate
matters, both parties represented at oral argument that Mr. McNeill was not arrested until after he
applied for employment with the Gym Defendants. The exact date of arrest, however, is not
relevant to the Court’s determination. Either the arrest occurred after Mr. McNeill’s application
process, in which case the CHRIA would not have prevented the Gym Defendants from
considering the Hand & Stone incident, or the arrest occurred before Mr. McNeill applied, in
which case the CHRIA would not have prevented the Gym Defendants from considering the
application had they learned about the Hand & Stone incident from a source other than Mr.
McNeill’s criminal record information file. See Foxworth, 228 F. App’x at 155.
13

a close relative.” Toney v. Chester Cty. Hosp., 961 A.2d 192, 197-98 (Pa. Super. 2008), aff’d, 36
A.3d 83 (Pa. 2011) (citation omitted). A plaintiff seeking recovery for NIED must also make out
the traditional elements of a negligence claim. Id. at 198.
Here, the Gym Defendants argue that Ms. Court has not stated a plausible claim for
NIED because she has failed to make out the predicate claim for negligence. As discussed
above, the Court finds that Ms. Court sufficiently pleaded a claim for relief against the Gym
Defendants for negligence. Because the Gym Defendants’ alleged negligence resulted in Ms.
Court being subjected to a physical impact, Ms. Court has stated a plausible claim for NIED.
Accordingly, the Court will deny the Gym Defendants’ motion to dismiss Ms. Court’s NIED
claim.
C.

Punitive Damages

The Gym Defendants also argue that the Court should strike Ms. Court’s requests for
punitive damages because (i) a claim for negligent hiring cannot sustain an award for punitive
damages, and (ii) the Complaint’s allegations cannot support a finding that the Gym Defendants
acted willfully or with malicious intent.
A plaintiff can obtain punitive damages in Pennsylvania if he or she presents evidence
“sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to
which the plaintiff was exposed and that (2) [the defendant] acted, or failed to act, as the case
may be, in conscious disregard of that risk.” Hutchison ex rel. Hutchison v. Luddy, 870 A.2d
766, 772 (Pa. 2005). Pennsylvania courts only award punitive damages, however, “for
outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the
interests of others.” Chambers v. Montgomery, 192 A.2d 355, 358 (Pa. 1963) (citation omitted).

14

A punitive damages award is not justified where a “defendant’s mental state rises to no more
than gross negligence.” SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702, 705 (Pa. 1991).
As an initial matter, the Court notes that the Supreme Court of Pennsylvania has
explicitly held that punitive damages can be awarded in actions premised on negligent hiring
and/or supervision. Hutchison, 870 A.2d at 772 (“[There is nothing] in law or logic to prevent
the plaintiff in a case sounding in negligence from undertaking the additional burden of
attempting to prove . . . that the defendant's conduct not only was negligent but that the conduct
was also outrageous, and warrants a response in the form of punitive damages.”). Ms. Court is
therefore not precluded from asserting a claim for punitive damages merely because she has sued
the Gym Defendants under a negligence theory.
At this time, the Court is not willing to determine that, as a matter of law, the facts
contained in the Complaint could never support a punitive damages award. See Kane v. Chester
Cty. Dep’t of Children, Youth & Families, 10 F. Supp. 3d 671, 694 (E.D. Pa. 2014) (“[F]or the
purposes of a motion to dismiss, plaintiff has adequately pled facts which, if proven, could
support an award for punitive damages.”); DeRitis v. Mc Garrigle, No. 13-6212, 2014 WL
2892419, at *9 (E.D. Pa. June 25, 2014) (denying a pre-discovery motion to dismiss punitive
damages demand as premature); Papacoda v. A.I. Dupont Hosp. for Children of the Nemours
Foundation, No. 05-3003, 2006 WL 1789077, at *5 (E.D. Pa. June 26, 2006) (same). If, after
the completion of discovery, the Gym Defendants believe they have a good faith argument that
the facts of this case cannot support a punitive damages award, then the Court will entertain a
subsequent motion at that time.

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IV.

CONCLUSION
For the foregoing reasons, the Gym Defendants’ Motion to Dismiss is denied.

BY THE COURT:

S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE

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