                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 17-1383
                                   ______________

                                 ELIZABETH NACE,
                                            Appellant

                                           v.

  PENNRIDGE SCHOOL DISTRICT; ERIC ROMIG, Individually and in his Official
   Capacity as Coach for Pennridge School District; JACQUELINE RATTIGAN, Dr.,
Individually and in Her Official Capacity as Superintendent of Pennridge School District;
     THOMAS CREEDEN, Individually and in His Official Capacity as Principal of
  Pennridge High School; DAVID BABB, Individually and in His Official Capacity as
 Athletic Director of Pennridge High School; FAITH CHRISTIAN ACADEMY; RYAN
  CLYMER, Individually and in His Official Capacity as Headmaster of Faith Christian
 Academy; AND RUSSELL HOLLENBACH, Individually and in His Official Capacity
                     as Athletic Director of Faith Christian Academy

                                   ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                             (D.C. No. 2:15-cv-00333)
                     District Judge: Hon. Wendy Beetlestone
                                 ______________

                     Submitted under Third Circuit L.A.R. 34.1(a)
                                  January 25, 2018
                                  ______________

         Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges.

                                (Filed: August 6, 2018)
                                     ______________

                                        OPINION *
                                     ______________

SHWARTZ, Circuit Judge.

       Former Pennridge High School student Elizabeth Nace filed this lawsuit against

Faith Christian Academy (“FCA”), FCA employees Ryan Clymer and Russell

Hollenbach (collectively “FCA Defendants”), Pennridge School District (“Pennridge”),

and Pennridge employees David Babb and Thomas Creeden (collectively “Pennridge

Defendants”), seeking damages arising from the sexual abuse she experienced at the

hands of Defendant Eric Romig, who was a coach at both FCA and Pennridge High

School. The District Court granted summary judgment to Pennridge and FCA

Defendants. Because there exists a genuine dispute of material fact on at least the duty

element of Nace’s negligence per se claim under Pennsylvania’s abuse-reporting statute,

we will vacate the District Court’s ruling on that claim and remand for further

proceedings. However, because the common law imposes no greater duty upon FCA

Defendants to Nace to report Romig’s conduct beyond what the statute already requires,

the District Court properly granted summary judgment to FCA Defendants on Nace’s

common law negligence claim. In addition, because Nace’s federal-law claims against

Pennridge Defendants lack merit, and Creeden and Babb are protected by Pennsylvania

statutory tort immunity, we will affirm the District Court’s grant of summary judgment to



       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
                                             2
the FCA and Pennridge Defendants on Nace’s remaining claims.

                                            I

      Romig was FCA’s girls’ basketball coach from at least 2008 through January 5,

2010. During that time, Clymer was FCA’s principal, and Hollenbach was FCA’s

athletic director. Both Clymer and Hollenbach knew Romig since his childhood. Romig

was also the girls’ softball coach at Quakertown Community High School

(“Quakertown”) from 2007 through January 5, 2010. Babb was Romig’s direct

supervisor at Quakertown until 2009, when Babb left to become the athletic director at

Pennridge High School.

      While he was an FCA basketball coach, Romig sent over 3,200 text messages over

a three-month period to then seventeen-year-old FCA student Emily Mayer, who was a

member of the girls’ basketball team. Mayer informed Clymer in late December 2009

that she had received inappropriate texts from Romig. By that point, she had deleted all

of the text messages from her phone, but she provided Clymer with descriptions of some

of the text messages, including one in which Romig allegedly texted Mayer, “I want to be

in you,” App. 412-13, and others stating that Romig loved her, did not want her to be

with her boyfriend, and wanted to marry her. In addition, Mayer suggested that Clymer

speak with Lauren Fretz, a former FCA student.

      Romig denied that the texts with Mayer contained any sexual content.

Nevertheless, Clymer asked Romig to step aside from his coaching duties while Clymer

conducted an investigation, in which he relayed at least some information about the



                                            3
accusations to Hollenbach, 1 and spoke to a friend who was a local police chief, the

assistant coach of the girls’ basketball team, the school’s attorneys, and Mayer’s parents.

Mayer’s parents were unable to obtain the content of the text messages, but provided

phone logs showing that Mayer and Romig exchanged thousands of texts in the last few

months of 2009.

       Clymer also contacted Lauren Fretz to investigate whether Romig had an

inappropriate relationship with her. Fretz denied having a physical relationship with

Romig, but she suggested that Clymer speak with Kristen Kennedy, another former FCA

student. Kennedy stated that Romig sent her inappropriate internet messages before and

after her FCA graduation, asking about her sexual relations with her boyfriend. She

denied having an inappropriate physical relationship with Romig and testified that Romig

never suggested that he wanted to be intimate with her.

       Based on the investigation and on the advice of school counsel, Clymer asked

Romig to resign due to the large volume of texts with Mayer. Romig resigned from both

his FCA and Quakertown positions on January 5, 2010, citing health reasons. No one at

FCA reported Romig’s texting conduct to law enforcement or the Pennsylvania child

protective services agencies.

       Around that time, Pennridge School District posted an opening for a girls’ softball

coach for the 2011-2012 school year but did not receive any applications. Given the lack

of applications for the position, Babb, now Pennridge’s athletic director, contacted


       1
         The parties dispute the scope of Hollenbach’s knowledge of both Mayer’s
allegations and Clymer’s findings resulting from the investigation.
                                             4
Romig, who had worked under Babb as a girls’ softball coach at Quakertown, and spoke

with Quakertown’s athletic director, who reported no concerns about Romig and said that

Romig resigned from Quakertown due to heart issues. Notably, Romig’s February 2012

application for the Pennridge softball position contained no reference to FCA or

Quakertown but listed Hollenbach as a personal reference. Although Babb did not call

any of the listed personal references, Pennridge obtained all required background and

criminal history checks, and all background checks cleared. Romig was hired as a

softball coach.

       After being hired as the girls’ softball coach, Romig applied to be Pennridge’s

girls’ basketball coach. He submitted a resume for that position that identified his

previous basketball coaching position at FCA. Creeden, Pennridge’s principal, and Babb

interviewed Romig for the position. When asked why he left FCA, Romig responded that

there was a “difference of opinion” or “philosophy” and also noted his heart issues. App.

254.

       According to Babb, before the basketball coaching position was filled, he had a

conversation with Hollenbach about Romig. Babb asked Hollenbach about Romig’s time

at FCA, and Hollenbach responded that Romig was a good coach. Hollenbach further

disclosed that Romig had left his coaching position at FCA due to an “issue with . . .

texting,” which was inconsistent with the reasons Romig had given Babb and Creeden for

his departure. App. 255. The parties dispute whether any details of the texting issue or

Romig’s departure were asked for or provided as part of that alleged conversation

between Babb and Hollenbach. Babb testified that he told Creeden about the texting

                                             5
issue, and Creeden instructed Babb to “[k]eep an eye on it” and “watch, see if you see

anything.” App. 256, 258. However, neither Creeden nor Hollenbach recalled the

conversations that Babb described. Pennridge ultimately hired a different candidate for

basketball coach.

       During the 2011-2012 school year, there were no complaints from any students or

parents about Romig, and Romig received a positive performance evaluation and returned

the following season.

       Nace was on Romig’s softball team during the 2011-2012 and 2012-2013 school

years. She did not report any problems with him during her freshman season. Starting in

April 2013, during Nace’s sophomore season, Romig began sending Nace text messages

in which he commented on her looks, and by June 2013, the texts became sexual. During

the summer of 2013, the pair engaged in sexual relations. Nace took steps to hide the

relationship, but in late September 2013, her parents discovered her sexual relationship

with Romig and contacted the police.

       Romig was arrested on October 1, 2013. As part of the police investigation into

Romig’s conduct with Nace, Bucks County detectives investigated Mayer’s allegations.

No charges were brought against Romig based on his conduct with Mayer at FCA, but he

was charged with and pleaded guilty to child pornography and sexual abuse of a minor

offenses for his actions with Nace.

       Nace never attended FCA and was not a member of the church affiliated with

FCA, but she sued FCA, Clymer, and Hollenbach for negligence and negligence per se,

alleging that these defendants failed to report Romig’s purported misconduct with Mayer

                                            6
to authorities, and that this failure caused her injury. She also sued Pennridge, Babb, and

Creeden, asserting a claim under 42 U.S.C. § 1983 for a violation of her substantive due

process rights based on a state-created danger theory, and she sued Babb and Creeden,

asserting that they engaged in willful misconduct. 2 The District Court granted summary

judgment in favor of FCA Defendants and Pennridge Defendants because (1) FCA

Defendants did not owe Nace a legal duty, (2) Pennridge Defendants’ conduct did not

shock the conscience as required for the state-created danger claim, and (3) Babb and

Creeden were protected by Pennsylvania statutory immunity. Nace appeals.

                                            II 3

                                            A




       2
          The District Court dismissed other claims, but those rulings are not challenged.
       3
          The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. Our
Court has jurisdiction over the summary judgment order pursuant to 28 U.S.C. § 1291.
        Our review of the District Court’s order granting summary judgment is plenary.
McNelis v. Pa. Power & Light Co., 867 F.3d 411, 414 (3d Cir. 2017). We apply the same
standard as the District Court, viewing facts and drawing all reasonable inferences in the
non-movant’s favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 266-67 (3d Cir.
2005). Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute “is genuine only if there is a sufficient evidentiary basis on which a
reasonable jury could find for the non-moving party, and a factual dispute is material
only if it might affect the outcome of the suit under governing law.” Kaucher v. County
of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). The moving party is entitled to judgment as a matter of law if the
non-moving party fails to make “a sufficient showing on an essential element of her case
with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Because our review is plenary, we “may affirm the District Court on
any grounds supported by the record, even if the court did not rely on those grounds.”
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014) (internal quotation
marks omitted).
                                             7
       We first examine Nace’s state-law negligence per se and negligence claims against

FCA Defendants.

                                              i

       “The concept of negligence per se establishes both duty and the required breach of

duty where an individual violates an applicable statute, ordinance or regulation designed

to prevent a public harm[.]” J.E.J. v. Tri-Cty. Big Brothers/Big Sisters, Inc., 692 A.2d

582, 585 (Pa. Super. Ct. 1997) (alteration in original) (quoting Braxton v. Commw. Dep’t

of Transp., 634 A.2d 1150, 1157 (1993)). Nace’s negligence per se claim is based on an

alleged violation of Pennsylvania’s Child Protective Services Law (“CPSL”), which

requires school employees and school administrators to report suspected sexual abuse and

exploitation of students. Section 6352(a) addresses reporting by school employees and

provides:

       (1) Except as provided in paragraph (2), a school employee who has
       reasonable cause to suspect, on the basis of professional or other training and
       experience, that a student coming before the school employee in the
       employee’s professional or official capacity is a victim of serious bodily
       injury or sexual abuse or sexual exploitation 4 by a school employee shall
       immediately contact the administrator.

       (2) If the school employee accused of seriously injuring or sexually abusing
       or exploiting a student is the administrator, the school employee who has
       reasonable cause to suspect, on the basis of professional or other training and
       experience, that a student coming before the school employee in the
       employee’s professional or official capacity is a victim of serious bodily
       injury or sexual abuse or sexual exploitation shall immediately report to law
       enforcement officials and the district attorney under section 6353(a) . . . . If

       4
         “Sexual abuse or sexual exploitation” under this statute includes, inter alia, “[t]he
employment, use, persuasion, inducement, enticement or coercion of a child to engage in
or assist another individual to engage in sexually explicit conduct.” 23 Pa. Cons. Stat.
§ 6303.
                                              8
       an administrator is the school employee who suspects injury or abuse, the
       administrator shall make a report under section 6353(a).

23 Pa. Cons. Stat. § 6352(a). 5 Section 6353(a) addresses school administrators and

school employees and states:

       An administrator and a school employee governed by section 6352(a)(2)
       (relating to school employees) shall report immediately to law enforcement
       officials and the appropriate district attorney any report of serious bodily
       injury or sexual abuse or sexual exploitation alleged to have been committed
       by a school employee against a student.

Id. § 6353(a). Sections 6352 and 6353 therefore require schools to report to law

enforcement where there is “reasonable cause to suspect” “sexual abuse or sexual

exploitation” of a student. 6 See id. § 6353(a).

       Here, there is a genuine dispute of material fact as to whether FCA Defendants

had reasonable cause to suspect sexual abuse or sexual exploitation of a student that

would give rise to a reporting obligation under the CPSL. When Clymer learned of

Mayer’s texting allegations in December 2009, he investigated them by speaking to

Mayer, Mayer’s parents, the assistant basketball coach who worked with Romig, two

other female FCA students rumored to have experienced inappropriate behavior by

Romig, FCA’s attorneys, and a friend who was a police chief in another jurisdiction.



       5
         Sections 6352 and 6353 were repealed on December 30, 2014, but were in effect
when FCA learned of Mayer’s allegations against Romig in 2009.
       6
         Although § 6353(a) requires reporting to law enforcement without explicitly
stating that allegations of sexual abuse or exploitation must be supported by “reasonable
cause to suspect” such conduct, § 6353(a) expressly incorporates § 6352(a). Thus, both
administrators and school employees are obligated to report only allegations supported by
“reasonable cause to suspect on the basis of professional or other training and
experience” that “sexual abuse or sexual exploitation” of a student has occurred.
                                              9
Clymer confirmed that Romig had sent Mayer over 3,000 texts between September and

December 2009, but the texts had since been deleted. The only remaining evidence of

their content was a written record, made by Mayer at her parents’ direction, of what the

most suggestive messages had said. Romig denied that the texts contained inappropriate

content, and Mayer did not assert that Romig had any inappropriate physical sexual

contact with her. 7 Clymer also followed up on Mayer’s statement that Romig had

inappropriate relationships with other FCA students, but these students also denied any

physical sexual involvement with Romig. 8 Thus, Clymer was able to confirm that Romig

sent Mayer a large number of texts but, on the evidence before him, could not

substantiate the “actual proven physical abuse” that he thought the CPSL required. See

App. 161.

       Even if there was no actual proof of physical abuse, a jury could find Mayer’s

account of Romig’s texts, which allegedly expressed Romig’s love and sexual desire for

Mayer, combined with the large volume of texts sent by Romig to Mayer and the rumors

concerning Romig and other female students, sufficient to provide “reasonable cause to

suspect . . . sexual abuse or sexual exploitation.” See 23 Pa. Cons. Stat. § 6352(a).


       7
          When Nace’s sexual relationship with Romig was reported to authorities, the
Bucks County Police Department investigated Mayer’s accusations against Romig as
well. Mayer disclosed that Romig had touched her inappropriately on at least one
occasion, but during her deposition, she testified that she did not believe that she told
Clymer or FCA about this, and Clymer denied having knowledge of any touching. The
police did not charge Romig for his conduct with Mayer.
        8
          Kennedy testified that she and Romig had had online discussions about intimate
details of her relationship with her boyfriend, but she denied that Romig’s
communications suggested that he wanted to be intimate with her. It is not clear whether
she told this to Clymer.
                                             10
Because a genuine dispute exists as to whether FCA Defendants were required to report

Romig’s conduct to authorities under the CPSL, we will vacate the District Court’s order

granting summary judgment to FCA Defendants on Nace’s negligence per se claim. On

remand, the District Court should proceed to assess whether there exists a genuine

dispute of material fact on the other required elements for a negligence per se claim.

                                              ii

       In addition to her negligence per se claim, Nace also advances a claim of ordinary

negligence. Complaint at 21-23 ¶¶ 122-30, Nace v. Pennridge Sch. Dist., 185 F. Supp. 3d

564 (E.D. Pa. 2016), ECF No. 1. To prove negligence under Pennsylvania law, a plaintiff

must establish, among other things, that “the defendant had a duty to conform to a certain

standard of conduct.” Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). Whether

the defendant owed a duty of care to the plaintiff “is a question of law” determined by the

court. Walters v. UPMC Presbyterian Shadyside, __ A.3d __, 2018 WL 3026989, at *3

(Pa. June 19, 2018). Unlike negligence per se, where the requirements of a statute like

the CPSL supply the standard of care that the defendant must meet, in ordinary

negligence the standard of care is derived from the common law. McCloud v.

McLaughlin, 837 A.2d 541, 545 (Pa. Super. Ct. 2003).

       Assessing whether a duty exists under the specific facts of a case requires

consideration of: “(1) the relationship between the parties; (2) the social utility of the

actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm

incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall

public interest in the proposed solution.” Althaus ex rel. Althaus v. Cohen, 756 A.2d

                                              11
1166, 1169 (Pa. 2000). No single factor is “alone determinative of the duty question,”

and the weight accorded to each factor depends on the facts of the case. Walters, 2018

WL 3026989, at *11 (quoting Seebold v. Prison Health Servs., Inc., 57 A.3d 1232, 1246

(Pa. 2012)).

       We need not examine each Althaus factor here because ultimately, “determining

whether to impose a duty of care in novel circumstances . . . requir[es] policy judgments

generally reserved for legislative action.” Id. at *4. As the Pennsylvania Supreme Court

explained in Walters, “we discern [FCA Defendants’] duty to arise primarily from the

expressions of public policy manifest in the governing . . . statutes and regulations, and

the priorities they reflect,” and “whatever form that duty takes must be traceable to those

expressions.” Id. at *20. Here, the Pennsylvania legislature’s imposition of a duty to

report under specific circumstances in the CPSL reflects the legislature’s judgment that

the burden of reporting is outweighed by its benefits only where there is reasonable cause

to suspect sexual abuse or sexual exploitation and where there are protections in place for

innocent accused employees. 9 See id. Under the circumstances, imposing a broader

common law duty to report may disrupt the careful balancing of interests that the

Pennsylvania legislature viewed to be proper. Moreover, given the Pennsylvania


       9
         The statutorily-imposed reporting duty under CPSL §§ 6352 and 6353 includes
protections for innocent accused employees because reports of abuse or exploitation are
kept in a non-public file while under investigation, and such reports do not appear in the
statewide database unless and until the report is deemed “founded” or “indicated,” which
requires a finding of abuse or exploitation by the investigating child welfare authorities or
a judicial determination of guilt. See 23 Pa. Cons. Stat. §§ 6303; 6331(1), (2); 6335.
Reports deemed unfounded after an investigation concludes are expunged. Id. at
§ 6331(3); 6337.
                                             12
Supreme Court’s “hesitat[ion]” and “reluctance” to impose a new duty in Walters, and

that court’s stated desire to limit both the scope of that duty and the reach of that

decision, see id. at *20-22—and mindful that our task is to “predict how [that court]

would resolve the issue” before us, Allstate Prop. & Cas. Ins. Co. v. Squires, 667 F.3d

388, 391 (3d Cir. 2012)—we cannot say that the Pennsylvania Supreme Court would

impose a duty on FCA Defendants to protect potential future victims from sexual abuse

or exploitation at the hands of third parties that is broader than what the CPSL already

requires. Thus, we decline to impose on FCA Defendants a common law duty to further

disclose Mayer’s unconfirmed allegations of Romig’s sexual texting beyond the duty

imposed by the CPSL. The District Court therefore did not err in granting summary

judgment to FCA Defendants on Nace’s common-law negligence claim.

                                              B

       We next review Nace’s state-created danger claim against Pennridge Defendants.

A state-created danger claim requires proof of four elements:

       (1) the harm caused was foreseeable and fairly direct; (2) the state official
       “acted with a degree of culpability that shocks the conscience”; (3) the state
       and the plaintiff had a relationship such that “the plaintiff was a foreseeable
       victim of the defendant’s acts”; and (4) the official affirmatively used his
       authority “in a way that created a danger to the citizen or that rendered the
       citizen more vulnerable to danger” than had he never acted.

Kedra v. Schroeter, 876 F.3d 424, 436 (3d Cir. 2017) (quoting Bright v. Westmoreland

County, 443 F.3d 276, 281 (3d Cir. 2006)). Nace has not demonstrated a genuine dispute

of material fact on at least the second element, which requires proof of government

conduct that is “so egregious, so outrageous, that it may fairly be said to shock the


                                              13
contemporary conscience.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 246 (3d Cir. 2017)

(quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). The degree of

culpability needed for conduct to shock the conscience depends on the context. Id. “[I]n

situations where deliberation is possible and officials have the time to make unhurried

judgments, deliberate indifference is sufficient” to establish conscience shocking

conduct. Id. (internal quotation marks omitted). Deliberate indifference demands a

“conscious disregard of a substantial risk of serious harm,” which “might exist without

actual knowledge of a risk of harm when the risk is so obvious that it should be known.”

Id.

       Nace does not dispute that Pennridge had time to evaluate applicants for the

basketball and softball coaching positions, but the record does not provide a basis for a

reasonable jury to find that Pennridge’s employment of Romig amounted to deliberate

indifference that shocks the conscience. Romig had cleared a background check, had

begun coaching at Pennridge without any complaints, and was reported to be a good

coach based on Babb’s prior experience supervising him at Quakertown. Romig had

been accused of improper sexual texting with Mayer over two years earlier while at FCA,

but Babb was told only that Romig had an “issue with texting.” App. 255. Babb did not

ask any follow-up questions, and he and Creeden decided not to investigate further.

Under these specific circumstances, Pennridge’s conduct does not amount to conscience-

shocking deliberate indifference. See, e.g., Shrum ex rel. Kelly v. Kluck, 249 F.3d 773,

775-80 (8th Cir. 2001) (affirming an order granting summary judgment to a school that

lacked “conclusive proof that [the teacher] actually molested students while employed at

                                            14
[the school]” and was only “aware of rumors, investigations, and student statements”);

Kobrick v. Stevens, Civ. No. 3:13-CV-2865, 2017 WL 3839946, at *8-9 (M.D. Pa. Sept.

1, 2017) (finding no deliberate indifference where (1) the school quickly investigated an

anonymous tip that the assistant marching band director had sexual contact with a

student, and (2) the plaintiff adduced insufficient evidence that the school knew that the

assistant marching band director posed a risk); E.R. v. Lopatcong Twp. Middle Sch., Civ.

No. 13-1550 (MAS)(DEA), 2015 WL 4619665, at *1-2, *6 (D.N.J. July 31, 2015)

(finding no deliberate indifference on the part of a school that (1) was aware that a

teacher texted a student, referring to her as “angel” and “babe”; (2) found a box from the

student to the teacher saying “I love you BFF”; and (3) received reports from other

teachers that the teacher in question was “too close to students” because there were no

factual allegations that the school “knew, or even impliedly knew, that [plaintiff] would

be harmed by [the teacher] or that . . . sexual abuse was foreseeable”).

       Nace has not adduced evidence upon which a reasonable juror could find that (1)

Pennridge disregarded actual knowledge that Romig would sexually assault a student or

(2) Romig posed a plainly obvious risk that should have been known. Accordingly, the

District Court correctly granted summary judgment to Pennridge Defendants on Nace’s

state-created danger claim.

                                             C

       Finally, we evaluate whether Creeden and Babb are entitled to immunity under the

Pennsylvania Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa. Cons. Stat.

§§ 8541-64, on Nace’s intentional tort claim.

                                             15
       The PSTCA grants municipal agencies and employees statutory immunity.

Section 8541 provides that “no local agency shall be liable for any damages on account

of any injury to a person or property caused by any act of the local agency or an

employee thereof or any other person.” 10 Id. § 8541. In addition, “[m]unicipal

employees, including school district employees, are generally immune from liability to

the same extent as their employing agency, so long as the act committed was within the

scope of the employee’s employment.” Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir.

2006) (citing 42 Pa. Cons. Stat. § 8545). However, an agency employee is “not immune

from liability under § 8545 where [the employee’s] conduct amounts to . . . ‘willful

misconduct.’” Id. (quoting 42 Pa. Cons. Stat. § 8550). “Willful misconduct . . . [is]

conduct whereby the actor desired to bring about the result that followed or at least was

aware that it was substantially certain to follow, so that such desire can be implied.” Id.

(internal quotation marks omitted).

       Drawing all reasonable inferences in Nace’s favor, no reasonable juror could find

that Creeden and Babb engaged in willful misconduct. The only confirmed conduct

about which Creeden and Babb may have been aware was that Romig sent many texts to

Mayer. Under these circumstances, no reasonable jury could find that Creeden and Babb

“desired” for Nace to be sexually abused by Romig, or that they were aware that such

abuse was “substantially certain” to occur. See Sanford, 456 F.3d at 315. Therefore,




       10
         There are eight exceptions to § 8541 immunity, but none applies here. 42 Pa.
Cons. Stat. § 8542.
                                             16
Creeden and Babb are immune from tort liability under the PSTCA, and the District

Court correctly granted summary judgment in their favor on Nace’s intentional tort claim.

                                           III

      For the foregoing reasons, we will vacate the District Court’s order granting

summary judgment to FCA Defendants on Nace’s negligence per se claim, affirm the

District Court’s grant of summary judgment to FCA and Pennridge Defendants on Nace’s

remaining claims, and remand for further proceedings.




                                           17
