Opinion
Civil Action No. 19-1326
12-15-2020
H.B., by and through PATRICIA F., as her Parent and legal guardian, and PATRICIA F., individually, Plaintiffs, v. PITTSBURGH PUBLIC SCHOOLS, DISTRICT, Defendant/Third-Party Plaintiff, THE CHILDREN'S INSTITUTE of PITTSBURGH, and LAVALLE TUCKER, Defendants, v. PAUL K. BROWN, t/d/b/a PROFESSIONAL LIMOUSINE SERVICE, Third-Party Defendant.
District Judge Cercone ECF Nos. 89, 93
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by Defendant The Children's Institute of Pittsburgh (ECF No. 89) be granted and that the Children's Institute of Pittsburgh be terminated as a party defendant. It is further recommended that the Motion to Dismiss filed by Third-Party Defendant Paul K. Brown, Inc. t/d/b/a Professional Limousine Service (ECF No. 93) be denied. II. REPORT
A. Factual Allegations and Procedural Background
1. Allegations relating to the Second Amended Complaint (ECF No. 78)
This civil action arises from the sexual molestation of severely disabled Minor Plaintiff H.B. by Defendant Lavalle Tucker ("Tucker") while Tucker was transporting H.B. to The Children's Institute of Pittsburgh ("Institute"). Defendant Institute and Defendant Paul K. Brown, t/d/b/a Pittsburgh Limousine Service ("PLS") were terminated as party defendants when District Judge Cercone granted the Institute's and PLS's Motions to Dismiss and adopted this Court's Report and Recommendation (ECF No. 55) as the Opinion of the Court (ECF No. 58). This Court granted Plaintiffs' Motion for Leave to Amend (ECF Nos. 76 & 77) and Plaintiffs filed their Second Amended Complaint against Pittsburgh Public Schools ("PPS"), the Institute and Tucker (ECF No. 78). PLS is not named as a defendant in the Second Amended Complaint.
In the Second Amended Complaint, Plaintiffs attempt to make out a breach of contract claim on behalf of Minor Plaintiff H.B. against the Institute.
Plaintiff H.B. ("Minor Plaintiff") by and through Patricia F. ("Plaintiff Mother"), as her parent and legal guardian, and Patricia F., individually (collectively "Plaintiffs"), filed this civil action against Defendants PPS, the Institute, Paul K. Brown, Inc., t/d/b/a Professional Limousine Service ("PLS"), and Tucker. Second Amended Complaint, ECF No. 78 ¶ 2. Minor Plaintiff suffers from a rare genetic disorder and as a result, is severely disabled, both physically and intellectually. ECF No. 78 ¶ 11. Minor Plaintiff is generally unable to communicate without the use of technological assistance in the form of a specially formatted iPad. ECF No. 78 ¶ 12.
Since 2009, Minor Plaintiff has attended Defendant Institute's Day School. ECF No. 78 ¶ 13. Defendant Institute's Day School is an approved private school ("APS") that provides special education services to students with complex disabilities. Defendant Institute's students attend its programs with the knowledge of and/or assistance from their home school districts, in accordance with state and federal law. ECF No. 78 ¶ 14. Pursuant to Defendant Institute's 2017- 2018 Parent Handbook ("Handbook"), Defendant Institute is "dedicated to enhancing the quality of life for [its] students and their families within a safe, nurturing and supportive school environment." ECF No. 78 ¶ 15. As part of her curriculum at Defendant Institute, Minor Plaintiff is enrolled in an individualized education program ("IEP") designed to meet her specific needs as a disabled student. Minor Plaintiff's IEP is implemented and managed by members of Defendant Institute's staff, as well as a representative from Minor Plaintiff's home district, Defendant PPS. ECF No. 78 ¶ 16.
In accordance with Defendant PPS' statutory obligations, Minor Plaintiff was transported to and from her classes at Defendant Institute by an agent of Defendant PLS, including, but not limited to, Defendant Tucker. PPS maintained a contract with PLS for pupil transportation services to and from various facilities within Defendant PPS' district. ECF No. 78 ¶ 17. The vehicle used to transport Minor Plaintiff was not equipped with a surveillance camera comparable to those typically found on school buses. ECF No. 78 ¶ 18. Plaintiffs believe, and therefore allege, that vehicles provided by Defendant PPS used to transport non-disabled students are, and were, equipped with surveillance cameras as a safety measure. ECF No. 78 ¶ 19.
In September 2017, Defendant Tucker was assigned as Minor Plaintiff's bus driver for the 2017-2018 school year. At that time, Defendant Tucker had been employed by Defendant PLS for approximately eighteen (18) years. ECF No. 78 ¶ 21. Defendant Tucker transported both Minor Plaintiff and one (1) other severely disabled student, J.B., to and from their classes at Defendant Institute daily. Like the Minor Plaintiff, J.B. is generally unable to communicate with others because of his disability. ECF No. 78 ¶ 22.
Pursuant to Defendant Institute's policies and procedures, after collecting Minor Plaintiff and J.B. from their respective homes at the designated pick-up times, Defendant Tucker transported Minor Plaintiff and J.B. to Defendant Institute, where they were required to remain in Defendant PLS' vehicle for approximately thirty (30) minutes until the official school day began. ECF No. 78 ¶ 23. Pursuant to Defendant Institute's Handbook, "[a]lthough The Day School is not directly accountable for the student's issues on the buses, we work closely with the school district, bus company personnel and you to resolve transportation problems." ECF No. 78 ¶ 24.
From September 2017 to December 2017, Plaintiff Mother made several complaints to representatives of Defendant institute which included identifying safety issues created and/or compounded by Defendant Institute's drop off policy and procedure. ECF No. 78 ¶ 25. Defendant institute failed to take any action, remedial or otherwise, in response to Plaintiff Mother's complaints regarding Minor Plaintiff's safety during transportation to and from Defendant Institute, in violation of the Institute's Handbook policies and procedures. ECF No. 78 ¶ 26.
On or about November 17, 2017, J.B. grabbed Minor Plaintiff's glasses and threw them towards the back of the bus. Plaintiffs aver that J.B. is prone to emotionally and/or physically violent outbursts as a direct result of his disability. ECF No. 78 ¶ 27. In addition, no aid was assigned to the school bus during the transport of the two (2) children, nor was the bus equipped with any video surveillance equipment. ECF No. 78 ¶ 28. Plaintiff Mother made several complaints to representatives of both Defendant PLS and Defendant Institute which included identifying safety issues created and/or compounded by the lack of an aid assigned to Minor Plaintiff's route. ECF No. 78 ¶ 29. No remedial measures were taken by any of the moving Defendants to prevent discrimination against Minor Plaintiff because of her disability. ECF No. 78 ¶ 30. Plaintiffs further allege that Defendants PPS, the Institute, and PLS knew of the relationship between Plaintiff Mother and Minor Plaintiff and yet discriminated against Plaintiff Mother by ignoring or disregarding Plaintiffs Mother's pleas to "take the same, reasonable safety measures afforded to non-disabled individuals for [Minor Plaintiff]." ECF No. 78 ¶ 31. Plaintiffs further allege that Defendant Institute failed to take any action in response to Plaintiff Mother's complaints regarding Minor Plaintiff's safety during transportation to and from the Institute, in violation of the Handbook. ECF No. 78 ¶ 32.
After the conclusion of Minor Plaintiff's regular school day, Defendant Tucker normally returned Minor Plaintiff to her residence at approximately 3:15 p.m. On or about December 6, 2017, however, Defendant Tucker informed Minor Plaintiff's home aid, Elizabeth Nowell ("Nowell"), that he would be returning Minor Plaintiff to her residence later than usual the next day as the result of an additional minor passenger assigned to his route on that date. ECF No. 78 ¶¶ 33-34. The next day, at approximately 4:30 p.m., Plaintiff Mother called Nowell and informed her that she had been notified by an agent of Defendant PLS that Minor Plaintiff's bus was stopped somewhere along Washington Boulevard in Pittsburgh, allegedly as a result of actions taken by J.B. ECF No. 78 ¶ 35. Minor Plaintiff's normal bus route does not include Washington Boulevard. ECF No. 78 ¶ 36. Thereafter, Nowell travelled to Washington Boulevard to collect Minor Plaintiff. Upon arrival, Nowell observed that the bus was parked in an isolated lot, away from any residential or commercial properties; Minor Plaintiff and J.B. were the only students on the bus; the bus was equipped with only two (2) seats for passengers and was therefore unable to accommodate a third student; and Minor Plaintiff was crying hysterically, breathing erratically and exhibiting other signs of extreme emotional distress. ECF No. 78 ¶ 37.
After this incident, Defendant Tucker continued to return Minor Plaintiff to her residence after the designated 3:15 p.m. drop-off time. ECF No. 78 ¶ 39. Plaintiff Mother made several complaints to all moving Defendants about the safety issues related to Minor Plaintiff's late drop-offs. No action was taken by any of the Defendants. ECF No. 78 ¶¶ 40-41. Plaintiffs further allege that the failure to take any action in response to Plaintiff Mother's complaints was in violation of the Handbook. ECF No. 78 ¶ 42.
On December 12, 2017 Plaintiff Mother met with members of Defendant Institute's staff and a representative from PPS to discuss Minor Plaintiff's IEP. At this meeting Plaintiff Mother again complained of safety issues related to Minor Plaintiff's transportation to and from the Institute. Again, no action was taken by any of the Defendants to prevent discrimination against Minor Plaintiff because of her disability and against Plaintiff Mother because of her relationship with disabled Minor Plaintiff, and in violation of the Handbook regarding transportation policies. ECF No. 78 ¶¶ 43-47.
On the morning of December 19, 2017, Defendant Tucker transported Minor Plaintiff to the Institute for her regularly scheduled classes. At approximately 8:52 a.m., Alexis Galanter ("Galanter") observed Minor Plaintiff's bus parked on Dennis[t]on Street near the rear entry of Defendant Institute. At that time, Defendant PLS's van was not located at the designated Drop-off point for the Institute's students. As she approached the vehicle, Galanter clearly observed Defendant Tucker touching Minor Plaintiff in a sexual manner. ECF No. 78 ¶¶ 48-52. Plaintiffs further allege that this location is monitored and clearly observable by video surveillance equipment operated and maintained by the Institute, and that the Institute's staff had a duty to monitor the location to protect supervise and ensure the safety of students. ECF No. 78 ¶¶ 54-55. Plaintiffs allege that the failure to monitor the area observable by the video surveillance equipment maintained by the Institute was a violation of the Institute's Handbook in that it failed to provide Minor Plaintiff with a "safe, nurturing and supportive school environment." ECF No. 78 ¶ 56.
Thereafter, Defendant Tucker was arrested and charged with various misdemeanors and felonies. On or about May 8, 2019, Defendant Tucker pleaded guilty to indent assault of a person with mental disabilities, indecent assault through forcible compulsion, corruption of minor and endangering the welfare of children, students and employees. ECF No. 78 ¶¶ 57-58.
The Second Amended Complaint contains the following counts: Count I for violation of Plaintiffs' rights under the Americans with Disabilities Act and the Fourteenth Amendment to the United States Constitution as against PPS; Count II for breach of contract against the Institute; Count III on behalf of Minor Plaintiff for assault and battery against Tucker; and finally on behalf of Minor Plaintiff, a claim for intentional infliction of emotional distress against Tucker.
As to Count II against the Institute for breach of contract, Plaintiffs allege that pursuant to its 2017-2018 Parent Handbook, the Institute had a duty to provide Minor Plaintiff and her family with "a safe, nurturing and supportive school environment." ECF No. 78 ¶ 74. Plaintiffs further aver that pursuant to the Handbook, the Institute had a duty to "work closely with the school district, bus company personnel and [the student's parent and/or guardian]to solve transportation problems." ECF No. 78 ¶ 75. Plaintiffs continue that the Institute breached those duties when it failed to take any action in response to Plaintiff Mother's complaints regarding Minor Plaintiff's safety while being transported to and from the Institute. ECF No. 78 ¶ 76.
2. Allegations relating to the Third-Party Complaint by Pittsburgh Public Schools ("PPS") against Paul K. Brown, t/d/b/a Pittsburgh Limousine Service ("PLS") (ECF No. 91)
PPS and PLS entered into a written contract for PLS to transport certain PPS students to and from school ("the Contract"). ECF No. 91 ¶ 20. Minor Plaintiff was one of the students PLS contracted to transport. ECF No. 91 ¶ 21. Pursuant to the Contract, the PLS is an independent contractor and is not an agent, representative or employee under the control of PPS. ECF No. 91 ¶ 24. Plaintiffs allege that Minor Plaintiff suffered bodily injury while being transported by PLS in PLS's van, and there are no allegations that any PPS representative, agent or employee was on the van operated by PLS when Minor Plaintiff was assaulted. ECF No. 91 ¶¶ 25-26. Plaintiffs allege that PPS is responsible for PLS's failure to keep Minor Plaintiff safe and for PLS's failure to properly supervise its employee and students on the van. ECF No. 91 ¶ 27.
The Contract places the sole responsibility for the hiring, supervision, evaluation and retention of drivers upon PLS, as well as the safety of students being transported. ECF No. 91 ¶¶ 28-29. The below reference to "CARRIER" is PLS:
For the purpose and interpretation of this contract, CARRIER and SCHOOL DISTRICT agree that transportation of school students is an extraordinary and specialized function, the essence of which is that the students be transported to and from school regularly, safely, and promptly, without interruption or incident, and that the interests of the students take precedence over the interests of either the CARRIER and its drivers or of the DISTRICT. CARRIER understands and agrees that its primary obligation is to operate its affairs so that the DISTRICT will be assured of this continuous and reliable service. Recognizing that, for the protection of the students, drivers and all other persons coming in contact with students must be of stable personality and of the highest moral character, CARRIER agrees to accept the responsibility of assuring such qualities in personnel.Contract ¶ 2 (bold in original), ECF No. 91 ¶ 29.
Paragraph 23 of the Contract requires PLS to maintain specific insurance to respond to losses, i.e. bodily injury to students in the custody of PLS during transport, and to name PPS as an additional insured on the insurance policy. ECF No. 91 ¶ 30. Specifically, PLS "agrees to provide no later than July 1 of each year a certificate of insurance, naming [PPS] as additional insured, verifying coverage of $1,000,000 per accident and a $5,000,000 umbrella." Contract ¶ 23, ECF No. 94-1 at 4. PPS alleges that PLS failed to maintain insurance in accordance with the Contract. ECF No. 91 ¶ 31. In the alternative, PPS alleges that to the extent that PLS did maintain insurance in accordance with the contract, it failed to tender the claim on behalf of PPS to all potentially responsive policies of insurance despite repeated requests to do so. ECF No. 91 ¶ 32. Moreover, PLS failed to name PPS as a named additional insured on the relevant insurance policies as required by the Contract. ECF No. 91 ¶ 33. In the alternative, PPS alleges that to the extent that PLS did name PPS as a named additional insured, it failed to tender the claim on behalf of PPS to the insurers. ECF No. 91 ¶ 34. The Contract was intended by PPS and PLS to be an "insured contract" as that term is defined in PLS's insurance policy(ies). ECF No. 91 ¶ 35.
In Paragraph 11 of the Contract, PLS is to defend, indemnify, and hold harmless the district for any loss or damages incurred as a result of PLS's performance of its contractual duties as follows: "[PLS] agrees to indemnify, defend, and hold harmless SCHOOL DISTRICT, its directors, officers, agents and employees against any and all loss, damage, cost and expenses which the SCHOOL DISTRICT may hereafter suffer or incur arising from [PLS's] obligations under this Agreement." Contract ¶ 11, ECF No. 91 ¶ 43. Although PPS notified PLS of its duties under the Contract, PLS has failed to date, to provide a defense to PPS or to tender the claim to its insurers on behalf of PPS. ECF No. 91 ¶¶ 44-49. PPS received no denial or reservation of rights notification from the insurers or from PLS or anyone acting on its behalf. ECF No. 91 ¶ 50.
PPS further alleges that PLS failed to properly train Tucker to supervise students on his van so as to prevent the assault on Minor Plaintiff by J.B. PPS also avers that PLS failed to properly hire, evaluate, or monitor Tucker in order to prevent him from assaulting Minor Plaintiff. ECF No. 91 ¶¶ 52-55.
PPS further avers that Tucker was well known to PLS because he worked for PLS's owner for many years, including as a bartender for another of the owner's businesses. PPS alleges that PLS should have known of Tucker's "fascination and/or attraction to underage girls. ECF No. 91 ¶¶ 56-58. Despite this knowledge, PLS hired and continued to employ Tucker to drive a van with underage students, did not regularly evaluate his job performance, and failed to take corrective action when necessary. ECF No. 91 ¶¶ 61-67. PPS concludes that PLS failed to fulfill its obligations to PPS under the Contract which resulted in Minor Plaintiff's injuries. ECF No. 91 ¶¶ 69-70.
Third-Party Plaintiff PPS alleges the following claims against Third-Party Defendant PLS: Count I for Breach of Contract; Count II for Contractual Indemnity; and Count III for Common Law Indemnity.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F. Supp.2d 546, 551 (W.D. Pa. 2003) ("[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings 'in related or underlying cases which have a direct relation to the matters at issue.'") (citations omitted).
C. Analysis
1. Motion to Dismiss by The Children's Institute (ECF No. 89)
In support of its Motion to Dismiss, the Institute argues that the provisions of its 2017-2018 Parent Handbook do not impose a contractual duty on the Institute. Plaintiffs respond that statements in the Handbook created a contractual obligation between the Institute and Plaintiffs and that the Institute breached those duties resulting in the harm that befell Minor Plaintiff.
In order to make out a claim for breach of contract under Pennsylvania law, a plaintiff must allege the following: "'(1) the existence of a contract, including its essential terms; (2) a breach of duty imposed by the contract; and (3) resultant damages.'" MDB v. Punxsutawney Christian School, 386 F. Supp. 3d 565, 590 (W.D. Pa. 2019) (quoting CoreStates Bank v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999)).
The portions of the Handbook in issue provide as follows:
WELCOME TO THE DAY SCHOOL AT THE CHILDREN'S
INSTITUTE
We are pleased that you and your school district have chosen The Day School at the Children's Institute of Pittsburgh to participate in your child's educational program, and we look forward to a productive and collaborative school year.
We value the confidence that you have placed in us. The teachers, therapists, staff and administrators, as well as our PTO, are working together to make this an important year of learning for your child. It's important to remember that while your child is a student at The Day School, there are supports in place to create a positive experience for your child and your family.
Please use this Handbook as one of those supports, as well as a reference guide. This guide includes important information to assist your involvement in the educational processes for you and your child at The Day School.
MISSION STATEMENTS
The Children's Institute of Pittsburgh is dedicated to promoting the well being of children, young people and their families, and to providing services that meet their special needs.
The mission of The Day School is complementary of the entire organization's mission. As The Day School at the Children's Institute, we are actively dedicated to enhancing the quality of life for our students and their families within a safe, nurturing and supportive school environment. We strive to accomplish this by the following:
• Instructional strategies and interventions based in best practice in special education
• Transdisciplinary team approach
• Applied Behavior Analysis
• Academic and functional assessments
• Data-driven decision-making
• Current technologies
• Community partnerships
Excerpts from 2017-2018 Parent Handbook, ECF No. 90-1 at 4, 5-6.
. . .
Everyday Issues and Concerns
. . .
Transportation
Students usually come to and from school and home by school buses provided by their home school districts. The Day School at The Children's Institute of Pittsburgh does not operate or control vehicles that transport students.
Specialized transportation equipment, if needed, should be requested from your local school district.
If you have a problem with your child's bus, please call your home district. Ask to speak with someone in the transportation department. Although The Day School is not directly accountable for the student's issues on the buses, we work closely with the school district, bus company personnel and you to resolve transportation problems.
The Court has quoted at length from the Handbook to place the relevant language into context. First, the words excised from the Handbook by Plaintiffs do not create a contractual duty on the part of the Institute to keep Minor Plaintiff safe from all unforeseeable dangers. Specifically, Plaintiffs direct the Court to the words "within a safe, nurturing and supportive school environment" and argues that because Minor Plaintiff suffered injuries at the hands of Defendant Tucker, that the Institute breached a duty created by this language to keep her safe. Read in context, this language is directed at providing a "safe, nurturing and supportive school environment" within the context of providing a special education to special needs students. The language immediately following this highlighted phrase describes the educational philosophies and techniques employed by the Institute to achieve these educational goals. Contrary to Plaintiffs' arguments, read in context, the language in issue does not create a duty to protect Plaintiff from all unforeseeable dangers, such as Defendant Tucker. Likewise, it does not create a duty on the part of the Institute to have an aid on the bus when that specific responsibility lies with PPS. Finally, it does not create a specific duty on the part of the Institute to monitor its surveillance camera capturing events occurring off campus.
Plaintiffs also rely on the provisions in the Handbook regarding transportation. These provisions, however, make clear that the Institute does not operate or control the vehicles used to transport students and that it "is not directly accountable for the student's issues on the buses." Instead, the Handbook directs parents to contact their school district if they have any problems relating to the transportation of their children to and from the Institute. The Handbook specifically directs parents to ask for the transportation department of their local districts. After emphasizing this point, the Handbook does state that it will work with parents, the bus company, and school districts to work through transportation issues. This language makes clear that it is the school districts that are charged with duties relating to transportation, not the Institute. Therefore, it is recommended that the Institute's Motion to Dismiss Plaintiffs' claim for breach of contract be granted.
2. Motion to Dismiss by Pittsburgh Limousine Service (ECF No. 93)
In support of its Motion to Dismiss the Third-Party Complaint, PLS argues that the Contract between it and PPS failed to mention the specific type of liability coverage that PLS was to secure under the Contract, namely insurance coverage for intentional torts. PLS contends that this omission in the Contract drafted by PPS renders the contract void. In support of its argument, PLS submits emails that evidence its inquiries to PPS regarding specific insurance requirements and to which PPS failed to respond. PLS further argues that PPS provided the ultimate approval of PLS' drivers even if the driver passed all legal clearances. PPS responds that it has made out plausible claims for breach of contract, contract indemnity and in the alternative, common law indemnity.
Here, the Court must deny PLS' Motion to Dismiss. PLS comes forward with facts that are not alleged in the Third-Party Complaint and that are not part of the Contract upon which the Third-Party Complaint relies. That is, PLS raises innumerable factual issues concerning the Contract between PPS and PLS, including but not limited to, PPS' insurance requirements, PLS' notice as to whether Tucker was a danger to children, whether PPS had the final decision making authority as to drivers who were hired by PLS, and whether the indemnity provisions are invalid because of PLS' claims that PPS was negligent. These issues go well beyond the allegations of the Third-Party Complaint and are not appropriate for the Court's consideration on a motion to dismiss. PLS' arguments must be explored in discovery. Thereafter, these issues will be appropriate for summary judgment. Therefore, it is respectfully recommended that PLS' Motion to Dismiss the Third-Party Complaint be denied. III. CONCLUSION
For the reasons discussed above, it is respectfully recommended that the Motion to Dismiss filed by Defendant the Children's Institute of Pittsburgh (ECF No. 89) be granted and that the Children's Institute of Pittsburgh be terminated as a party defendant. It is further recommended that the Motion to Dismiss filed by Third-Party Defendant Paul K. Brown, Inc., t/d/b/a/ Professional Limousine Service (ECF No. 93) be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights. Dated: December 15, 2020
BY THE COURT
/s/_________
LISA PUPO LENIHAN
United States Magistrate Judge cc: Lavalle Tucker
Inmate NV5335
P.O. Box 33028
St. Petersburg, FL 33733