A.T.S. v. Boy Scouts of America

13 Pa. D. & C.4th 499, 1992 Pa. Dist. & Cnty. Dec. LEXIS 369
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedFebruary 10, 1992
Docketno. 91-09048
StatusPublished
Cited by1 cases

This text of 13 Pa. D. & C.4th 499 (A.T.S. v. Boy Scouts of America) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.T.S. v. Boy Scouts of America, 13 Pa. D. & C.4th 499, 1992 Pa. Dist. & Cnty. Dec. LEXIS 369 (Pa. Super. Ct. 1992).

Opinion

DAVENPORT, S.J.,

The plaintiffs, A.T.S. and his parents, T.S. and M.S., have appealed from two orders sustaining preliminary objections of defendants, Boy Scouts of America (BSOA) and the American Red Cross (ARC). The plaintiffs’ complaint stems from the alleged sexual molestation of plaintiff A.T.S. by defendant Douglas Vemey while A.T.S. was a member of the Boy Scouts and the American Red Cross, and while Vemey was a volunteer in both organizations. Vemey had been convicted of child molestation in Massachusetts prior to his joining the BSOA and ARC. Plaintiffs’ nine count complaint names BSOA as a defendant in Counts IV, VI, VII, VIII and IX. The court’s orders sustained the BSOA’s objections to Counts VIII and IX, and dismissed their objections to Counts IV, VI and VII, and sustained all objections of ARC relating to each count in which it was named [500]*500as a defendant. Plaintiffs argue that the court erred in regard to each objection sustained.

THE COUNTS

Count IV alleges that the BSOA was negligent in failing to safeguard the health and welfare of A.T.S. The alleged breach of care is based on the failure of BSOA to actively supervise its volunteers, and to administer a thorough criminal background check of each volunteer who they know will have supervisory contact with young children. Count V makes the identical claim against ARC.

Count VI claims that defendants BSOA and ARC are liable to the plaintiff A.T.S. for the actions of defendant Douglas Verney under the doctrine of respondeat superior. The complaint alleges that both BSOA and ARC knew or should have known of Verney’s misconduct prior to and during his participation as a volunteer. Count VI is similar to Counts IV and V in that plaintiffs’ claim that the defendants should have known of Verney’s misconduct prior to his participation in this state with the defendants is obviously based on their contention that the defendants should have conducted a criminal background check. Plaintiffs’ claim that they should have discovered Verney’s alleged misconduct with plaintiff A.T.S. is obviously based on their contention that the defendants should have more closely supervised their volunteers.

Count VII claims that BSOA and ARC are liable to plaintiff A.T.S. for punitive damages. The complaint alleges that the organizations’ employment or recruitment policies which fail to require a criminal background check on prospective volunteers are so outrageous as to subject the defendants to punitive damages.

[501]*501Count VII claims that both BSOA and ARC are liable to the plaintiff parents, T.S. and M.S., for the intentional or negligent infliction of emotional distress, and Count IX claims that both defendants are liable to the parents for punitive damages.

DISCUSSION

The court will first address the defendants’ preliminary objections to Counts VIII and IX brought on behalf of plaintiff parents, T.S. and M.S. Count VIII alleges that defendants BSOA and ARC are liable to the parents for the intentional or negligent infliction of emotional distress for their failure to conduct criminal background checks, and more closely supervise their volunteers. The court properly sustained the defendants’ objections.

The preliminary objections sustained by the court are in the nature of a demurrer. A preliminary objection in the nature of a demurrer is not to be sustained unless the law says with certainty that no recovery is possible. Cianfranni v. Commonwealth State Employees Retirement Board, 505 Pa. 294, 297, 479 A.2d 468, 469 (1984). Thus, as plaintiffs correctly assert in their memorandum, if any theory of law will support the plaintiffs’ claim, a dismissal would be improper.

The theory of law supporting plaintiffs’ claim, however, must be one that is recognized by the Pennsylvania courts. The plaintiffs have failed to point out one instance in which the courts of this Commonwealth have recognized the tort of intentional infliction of emotional distress. On the other hand, the defendants have provided numerous instances in which our courts have expressly held that no such tort exists. Kazatsky v. King David Memorial Park Inc., 515 Pa. 183, 527 A.2d 988 (1987); Daughen v. Fox, 372 Pa. Super. 405, 409, 539 A.2d 858, 861 (1988) (citing Kazatsky) alloc, de[502]*502nied, 520 Pa. 605, 553 A.2d 967 (1989); Buczek v. First National Bank of Mifflintown, 366 Pa. Super. 551, 531 A.2d 1122 (1987); Ford v. Isdaner, 374 Pa. Super. 40, 44, 542 A.2d 137, 139 (1988).

The plaintiffs note that the Pennsylvania Supreme Court in Kazatsky stated in dicta that it might recognize the tort of intentional infliction of emotional distress in situations where the conduct is “so outrageous and extreme as to go beyond all possible bounds of decency. ” Kazatsky, at 191, 527 A.2d at 991. This dicta along with the historical reluctance of Pennsylvania courts to recognize this tort, combine to place a great burden upon the plaintiffs in order to establish the intentional infliction of emotional distress. As mentioned earlier, this burden has never before been satisfied, and the lower court shares in the Supreme Court’s apparent discomfort with this tort of intentional infliction absent the most extreme circumstances.

The plaintiffs’ Count VIII also alleges that the defendants BSOA and ARC are liable to the parents for negligent infliction of emotional distress. In Pennsylvania, where a claim for negligent infliction of emotional distress is derived from physical injury to another, the plaintiff must have witnessed the negligent conduct which resulted in the injury to the third person. Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). The plaintiff parents do not claim to have observed either the BSOA or ARC inflicting injury upon their son. Instead, plaintiffs claim that it was impossible for them to observe defendants behavior because the conduct complained of is actually a failure to act (i.e. failure to conduct criminal background check and supervise more closely), and that therefore they must be [503]*503excused from satisfying the criteria of contemporaneous obsérvance.

The Superior Court, however, recently held that the claim for negligent infliction of emotional distress is not sufficiently pled where the plaintiffs do not allege that they observed the negligence of the defendants, which consisted of a failure to act, but merely alleges that they witnessed the injurious results of defendants negligence. See Bloom v. DuBois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671 (1991).

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Bluebook (online)
13 Pa. D. & C.4th 499, 1992 Pa. Dist. & Cnty. Dec. LEXIS 369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ats-v-boy-scouts-of-america-pactcomplmontgo-1992.