Bowser v. Boguslawski

79 Pa. D. & C.4th 554
CourtPennsylvania Court of Common Pleas, Armstrong County
DecidedDecember 22, 2005
Docketno. 2001-0425-Civil
StatusPublished

This text of 79 Pa. D. & C.4th 554 (Bowser v. Boguslawski) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Armstrong County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowser v. Boguslawski, 79 Pa. D. & C.4th 554 (Pa. Super. Ct. 2005).

Opinion

NICKLEACH, P.J.,

This lawsuit by the parents of minor Tobias Bowser (Toby) alleges that Toby’s fourth grade teacher, Charles Boguslawski, sexually molested Toby during the 1998-1999 school year at West Hills Elementary School, a school in the Armstrong School District, and that Boguslawski individually and the Armstrong County School District are liable for Boguslawski’s actions. Before the court for disposition is defendant Armstrong County School District’s motion for summary judgment.1

The complaint as originally filed contained five counts. Count I against Boguslawski alleged a violation of Toby’s rights under 42 U.S.C. §1983. Count II alleged that the Armstrong County School District violated Toby’s rights in contravention of section 1983. Count III against Boguslawski alleged that he committed assault and battery upon Toby. Count IV against the District also alleged assault, and Count V against the District alleged negligence.

The District filed preliminary objections in the nature of a demurrer with respect to Counts II, IV and V. By memorandum and order of August 16, 2002, this court denied the District’s preliminary objections with respect to Count II and sustained the District’s preliminaty objections with respect to Counts IV and V, leaving the section 1983 claim the sole remaining count against the District.

[557]*557STATEMENT OF FACTS

The complaint alleges that Toby was sexually assaulted in his fourth grade classroom by Boguslawski during the 1998-1999 school year. It is the Bowsers’ position that the District failed to take any measures to prevent Boguslawski from molesting Toby despite having prior knowledge that Boguslawski had previously molested other male students within the District. The Bowsers further allege that the District failed to adopt and implement a policy whereby acts of sexual abuse by its faculty would be discovered and reported to the proper authorities. The pertinent facts are as follows.

On the evening of March 29,1999, Toby informed his mother that Boguslawski had molested him and a classmate, Cody Montgomery. After questioning Toby further, the next day the Bowsers contacted the state police and reported the alleged molestation. A state trooper went to West Hills that same day to interview Boguslawski, three girls who were students in his class, and two or three other teachers. Russell Carson depo. at 5-12. One of the girls said she observed Toby sitting on Boguslawski’s lap and that Boguslawski’s one hand was on Toby’s stomach inside his shirt. Id. at 11-16. Another girl said she observed Toby sitting on Boguslawski’s lap with Boguslawski’s hand on Toby outside Toby’s shirt. Id. Following a state police investigation, Boguslawski was criminally charged in connection with the incident. At trial, Boguslawski was acquitted of all charges and eventually returned to West Hills Elementary School to resume teaching there. Id. at 38-39.

As evidence that the District had prior knowledge that Boguslawski had previously molested male students, the [558]*558Bowsers offered the deposition testimony of Jay Toy. Toy testified that he had been a student of Boguslawski while attending Kittanning Township Elementary School in the mid- 1970s. Toy stated that when he was in fifth or sixth grade, he saw Boguslawski molest classmates Randy Woznak, Matt Smith and Jeff Smith in his classroom. Toy Depo. at 6, 17-19, 22, 24-31. Specifically, Toy said, when one of these boys would raise his hand for help, Boguslawski would kneel down beside the student’s desks, talk to the student, slide his hand up the person’s leg, place his hand on the boy’s genitals, and play with his penis and testicles. Id.

Toy said he reported this behavior to his mother, but not to anyone else. Id. at 17, 33-34. To his knowledge, his mother did not do anything but tell him to punch Boguslawski if he ever touched Toy. Id. at 19. Toy said the three students he observed being molested thought it was funny and would laugh about it. Id. at 19. Toy did not claim that he or anyone else ever informed the District of Boguslawski’s alleged behavior at the time it occurred.

Toy said that at least eight or nine years ago, he was looking at a West Hills Elementary School yearbook while his children were attending school there. Looking at the yearbook, he discovered that Boguslawski was a teacher at that school. Id. at 14. Toy said he became angry that Boguslawski was still teaching and also was concerned that his son, Matt, might be assigned to Boguslawski’s classroom the following year. Toy then went to the home of school secretary, Diane Bowser, a family friend, to talk to her about Boguslawski because he knew Diane was in charge of assigning children to teachers each school year at West Hills.

[559]*559Toy said he told Diane in no uncertain terms that he did not want his boys assigned to Boguslawski’s class because Boguslawski was a child molester, and that he would pull his boys out of school if any of them were assigned to Boguslawski’s classroom. Id. at 13-14, 20-22. Toy said Diane, who had her own boy in Boguslawski’s class that year, acted as if she didn’t believe Toy, but agreed that Toy’s son, Matt, would not be assigned to Boguslawski’s classroom the next school year. Id. at 22-23. He admitted that he might have called Boguslawski a faggot during the conversation he had with Diane. Id. at 14.

Toy also admitted that he never told the police, the school or other parents that Boguslawski was a child molester. Id. at 21-23,31-32. Asked if he was concerned that his two boys were still in the same building with a teacher he believed was a child molester, he said, “You know, this is probably going to be a stupid answer from a parent, but as long as my children didn’t have him, it didn’t bother me.” Id. at 23. He gave essentially the same answer when asked why he never told anyone about the molestation he allegedly saw as a child prior to finding out that Boguslawski was teaching at West Hills Elementary, stating, “Just like whenever I was answering his questions, probably going to be stupid as a parent, I guess just long as my kids didn’t have him I guess it didn’t bother me.” Id. at 33.

Diane Bowser testified that Toy told her he did not want his boys in Boguslawski’s classroom because Boguslawski was gay or a faggot, although she could not remember the exact words Toy had used. Diane Bowser depo. at 8-13,17. It is undisputed that Diane did not report her conversation with Toy concerning [560]*560Boguslawski to the building principal or to anyone else in the District. Diane Bowser depo. at 11. She explained her reasons for not reporting Toy’s allegation as follows:

“Q. His thoughts, did he seem to be upset?

“A. Well, he just said — I just don’t — he better not teach my kids, and I’ll come in there, and I’ll raise hell with the principal or whatever. Like I said, it was nine or 10 years. I don’t know the exact words. I’m just kind of — I just know he didn’t want them. So he didn’t have him. He never told me names of those students.

“Q. What students?

“A. On that, on that report [Toy’s signed statement to plaintiffs’ attorneys] that he said Mr. Boguslawski inappropriately touched. He never told me names of students.

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Bluebook (online)
79 Pa. D. & C.4th 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowser-v-boguslawski-pactcomplarmstr-2005.