source: Caselaw Access Project

author: TURGEON, J,

license: Public Domain

text:
    Miller v. Miller

      C.P. of Dauphin County,
    no. 1049 DR 1998.

      Melissa Peel Greevy, for obligee.

      Andrew C. Spears, for obligor.
    November 10, 2004
   TURGEON, J,

Currently before the court is obligee Stacy Miller’s de novo appeal from an April 20, 2004 child support order. She argues that her ex-husband, the obligor Joel Miller, should be (1) required to contribute to her mortgage payment through his child support obligation, as required under Rule 1910.16-6(e) of the Pennsylvania Support Guidelines and Isralsky v. Isralsky, 824 A.2d 1178 (Pa. Super. 2003). Alternatively, she argues she is otherwise entitled to the adjustment (2) under the terms of the parties’ marital settlement agreement or (3) because she is entitled to an upward deviation in the support award due to the unusual circumstances of this case. Obligor argues that obligee is not entitled to the mortgage adjustment through the support order because the support guidelines permit such an adjustment only for a mortgage on a “marital residence” and the parties are no longer married. For the reasons set forth below, this court grants obligee’s request for a mortgage adjustment/deviation to the child support order.

BACKGROUND

The parties were married in 1994 and separated in 1998. At the time of their separation, they had one daughter bom in 1996. Obligee sought, and obtained, an original order of child support effective April 1998, but the order was suspended in October 1998. The parties reconciled and later had a son, born in 2002. However, in March 2003, obligee sought support for both children. At the time, obligee had primary custody of both children and resided in the former marital residence, paying first and second mortgages on the home. A recommended order was thereafter entered May 14, 2003, effective March 13,2003, requiring that obligee pay $277 per week for the support of two children. A second order, also entered May 14, 2003, effective August 25, 2003, reflecting the fact that obligee would be reentering the workforce, modified the child support award to $243 per week. The calculations made by the hearing officer indicate that the $277 order included $136 per week in child support plus an additional $141 per week as an upward adjustment reflecting obligor’s one-half obligation for that portion of obligee’s mortgage payment on the marital residence that exceeded 25 percent of her net income, pursuant to Rule 1910.16-6(e). Pa.R.C.R 1910.16-6(e). The $243 order consisted of $173 per week for child support plus an additional $70 per week upward adjustment toward the obligee’s mortgage payment on the marital residence.

On January 27, 2004, the parties were divorced by decree, the terms of which incorporated but did not merge their marital settlement agreement. Miller v. Miller, no. 2003 CV 1317. On February 26, 2004, obligor filed a petition to decrease the child support order, seeking a reduction of $70 per week, representing the mortgage adjustment because the parties were now divorced. Following a domestic relations office conference, this court issued an order, upon the recommendation of the hearing officer, dated April 20, 2004, effective as of the date of divorce, reducing the child support to $173 per week, thereby deleting obligor’s $70 per week mortgage contribution therefrom. Obligee filed a timely request for de novo review. The de novo hearing was held July 28, 2004, following which I took this interesting issue under advisement.

LEGAL DISCUSSION

The main issue raised is whether the obligor’s child support obligation should include a mortgage adjustment under Pa.R.C.P. 1910.16-6(e) requiring that he pay a portion of obligee’s monthly mortgage payment where the home is no longer a marital residence. The law governing child and spousal support is set forth in the Domestic Relations Code, as well as the support guidelines promulgated by general rule of the Pennsylvania Supreme Court. 23 Pa.C.S. §4322(a); Pa.R.C.P. 1910.16-1 through 1910.16-7. The purpose of the support guidelines as set forth under section 4322 of the Domestic Relations Code, is as follows:

“(a) Statewide Guideline. — Child and spousal support shall be awarded pursuant to a statewide guideline as established by general rule by the Supreme Court, so that persons similarly situated shall be treated similarly. The guideline shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention. The guideline so developed shall be reviewed at least once every four years.” 23 Pa.C.S. §4322(a). (emphasis added)

The support guideline(s) promulgated under the authority of section 4322, have the force of statute. Maddas v. Dehaas, 816 A.2d 234 (Pa. Super. 2003). The specific rule in question, relating to the mortgage adjustment, is as follows:

“Rule 1910.16-6. Support guidelines. Adjustments to the basic support obligation ...

“(e) Mortgage payment. The guidelines assume that the spouse occupying the marital residence will be solely responsible for the mortgage payment, real estate taxes, and homeowners’ insurance. Similarly, the court will assume that the party occupying the marital residence will be paying the items listed unless the recommendation specifically provides otherwise. If the obligee is living in the marital residence and the mortgage payment exceeds 25 percent of the obligee’s net income (including amounts of spousal support, APL and child support), the court may direct the obligor to assume up to 50 percent of the excess amount as part of the total support award. For purposes of this subdivision, the term ‘mortgage’ shall include first mortgages, real estate taxes and homeowners’ insurance and may include any subsequent mortgages, home equity loans and any other obligations incurred during the marriage which are secured by the marital residence.

“Explanatory comment — 1998 ...

“New subdivision (e) substantially incorporates former Rule 1910.16(g) and has been modified to provide some uniformity and certainty as to what constitutes an unusually high mortgage payment that may justify an upward adjustment to the basic support obligation. The change is intended for the benefit of the obligee in the marital residence. There is no adjustment if the obligor is living there.

“Explanatory comment — 2000 ...

“Subdivision (e) has been amended to correct a drafting error in the definition of ‘mortgage.’ It always was the intention of the committee to include in the definition the real estate taxes and homeowners’ insurance referenced in the first sentence of the rule. In addition, while real estate taxes and homeowners’ insurance must now be included if the trier of fact applies the provisions of this subdivision, the inclusion of second mortgages, home equity loans and other obligations secured by the marital residence is within the discretion of the trier of fact based upon the circumstances of the case.” Pa.R.C.P. 1910.16-6(e). (emphasis added)

The language of this rule arguably indicates it should only apply in cases where the parties are married, employing, as it does, language seemingly limiting its application to “a spouse occupying the marital residence.” Upon a divorce, parties are no longer spouses and the home is no longer a “marital residence.” However, the Superior Court in Isralsky v. Isralsky, supra, approved of the application of this rule following divorce. In Isralsky, husband appealed from comprehensive findings of alimony, child support, modification of child support, alimony pendente lite and equitable distribution issued by the esteemed Honorable Eugene F. Scanlon Jr. One issue raised by husband was that the trial court had erred by ordering him to pay an extra $400 per month toward child support as a mortgage adjustment under Rule 1910.16-6(e). In making the award, Judge Scanlon reasoned as follows: “[T]he hope was to keep the children in the residence and in the same school district for as long as possible. Accordingly, we either could have increased the alimony order to accommodate [wife’s] needs, or apply the mortgage deviation [to the child support order]. We chose the latter as the most equitable under all the circumstances of this case.” Id. at 1187. On appeal, husband had argued that the mortgage adjustment rule could not be applied after entry of a divorce decree. Id. The Superior Court panel disagreed and wisely held the trial court exercised reasonable discretion in applying Rule 1910.16-6(e) post-divorce. The Superior Court reasoned as follows:

“The Pennsylvania Supreme Court is required by statute to develop guidelines for child and spousal support. 23 Pa.C.S. §4322(a). The statute clearly indicates that the guidelines are applicable to both child and spousal support. Id. Rules of Civil Procedure 1910.16-1 through 1910.16-7, set forth the guidelines as promulgated by our Supreme Court. Rule 1910.16-6(e) simply provides, ‘some uniformity and certainty as to what constitutes an unusually high mortgage payment that may justify an upward adjustment to the basic support obligation.’ Pa.R.C.P. 1910.16-6(e), explanatory comment — 1998. It is well established in Pennsylvania that mortgage payments are to be included when calculating child support. Shutter v. Reilly, 372 Pa. Super. 251, 539 A.2d 424 (1988) (‘Among the bare necessities of a child’s life is a home’); Shapera v. Levitt, 260 Pa. Super. 447, 394 A.2d 1011 (1978) (reasonable household expenses are necessarily included in a support order). Our court reaffirmed this position in Lampa v. Lampa, 371 Pa. Super. 1, 537 A.2d 350 (1988), when it stated, ‘that in reaching the determination as to the inclusion of mortgage payments and household utilities in calculating support, the court is to be cognizant of the fact that a child’s station in life is dependent at least in part upon where the child lives.’ Id. at 353.” Id.

Isralsky thus seems to interpret Rule 1910.16-6(e) as simply defining and setting a uniform policy as to when an “unusually high mortgage payment” exists so as to justify an upward adjustment in a child support obligation. The Superior Court otherwise dismisses the idea that this rule can limit the mortgage adjustment to pre-divorce situations, recognizing that the law in Pennsylvania has been for some time that (high) mortgage payments are always a consideration in calculating support, regardless of whether the mortgage payments are made prior to or after a divorce. Id. The logical extension of Isralsky, reflected in its quotation of Lampa — “that a child’s station in life is dependent at least in part upon where the child lives” — is that the “25 percent rule” for adjusting a mortgage should be equally available to any party concerning any housing and related expenses, including rental properties and regardless of whether the parents were ever married, or could have ever married under the law.

A proposed amendment to support guidelines Rule 1910.16-6(e) proposes language clarifying that the mortgage contribution may be ordered only “until such time as an order of equitable distribution is entered,” specifically to overrule Isralsky. The Pennsylvania Supreme Court has not yet determined whether it will adopt the proposed changes, and therefore, until such time, Isralsky is the polestar for resolution of the issue before this court.

The interpretation of Isralsky argued by obligor, that the mortgage adjustment can apply only through the date of divorce, implies that the reason for this rule is the preservation of the marital home/asset through the date of divorce. It is suggested, thus, that the marital home no longer needs to be preserved following equitable distribution and divorce and that the issue of high mortgage payments can be addressed in the equitable distribution scheme. As was borne out by Isralsky, however, the equitable distribution judge might not choose to address the high mortgage payment situation in the equitable distribution scheme and as such, the support judge must retain the discretion to address this issue in a post-divorce support order. Thus, Isralsky clearly gives this court the right to award a mortgage (housing) adjustment post-divorce. Nevertheless, such an award is clearly discretionary under the language of Rule 1910.16-6(e) and must ultimately be based upon the needs of the children. The facts of this case reveal obligee’s valid need for the mortgage adjustment: Obligee is responsible for paying both first and second mortgages on the former marital residence and as acknowledged by the marital settlement agreement, she will unlikely be able to refinance for some time due to the large encumbrances against the home.

Additionally, in this case, the language in the parties’ marital settlement agreement supports obligee’s position that the mortgage adjustment should not have been removed from the child support order. With regard to the marital residence, the marital settlement agreement reflects that it was appraised at $86,000 and was subject to a $75,800 first mortgage and a $31,600 second mortgage. It provides, in relevant part, as follows:

“In consideration of Husband’s waiver of his interest in Wife’s PSERS retirement plan..., and as part of the overall plan of equitable distribution, Wife will assume and pay the second mortgage,... and Husband will execute a deed conveying all of this right, title and interest in the marital home to Wife.

“The parties stipulate and agree that due to the amount of the debt against the home, Wife will not be likely able to qualify to refinance the marital home in her name alone in the near future. The parties further stipulate and agree that Wife will assume and pay the first and second mortgages until such time as she is able to refinance and that the regular payment of the full amount of the child support obligation from Husband to Wife is necessary for her to be able to maintain the home for herself and for the parties’ children....” (Obligee’s exhibit 1.)

As set forth above, obligee assumed payment of both first and second mortgages until she could refinance because she would be receiving “the regular payment of the full amount of the child support obligation . . . for her to be able to maintain the home for herself and for the parties ’ children. ” At the time she and the obligor entered into the marital settlement agreement, the then-current order of support required that obligor pay $243 per week for the support of two children.

Finally, even were this court to decide against granting a mortgage adjustment under Rule 1910.16-6(e) or under the terms of the marital settlement agreement, obli-gee would be entitled to an upward deviation of the basic child support amount set forth in the support guidelines schedule to take into account her unusual needs and the standard of living of her children. Deviation of a support order is permitted as follows:

“Rule 1910.16-5. Support guidelines. Deviation ...

“(b) In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider:

“(1) unusual needs and unusual fixed obligations;

“(2) other support obligations of the parties;

“(3) other income in the household;

“(4) ages of the children;

“(5) assets of the parties;

“(6) medical expenses not covered by insurance;

“(7) standard of living of the parties and their children;

“(8) in a spousal support or alimony pendente lite case, the period of time during which the parties lived together from the date of marriage to the date of final separation; and

“(9) other relevant and appropriate factors, including the best interests of the child or children.” Pa.R.C.P. 1910.16-5. (emphasis added)

Obligee is entitled to a deviation for the reasons she established at the de novo hearing: she is responsible for paying unusually high fixed obligations upon the former marital residence, i.e., the standard of living for the parties and their children; obligor does not pay any summer child day care costs since obligee is a teacher and cares for the children all summer; obligor does not have any financial obligation toward the children’s health insurance cost; and under the parties’ custody agreement, the obligor, who lives in Florida, has partial custody only 14 days per year, or only about 4 percent of the time, thus increasing obligee’s sole financial responsibilities to her children.

Accordingly, we enter the following:

ORDER

And now, November 10, 2004, following a de novo hearing, this court finds that the obligor Joel Miller is obligated to pay a mortgage adjustment of $52 per week in child support, in addition to the guideline amount. The domestic relations section is hereby directed to enter an order so reflecting, retroactive to February 26, 2004.

      . Both May 14, 2003 orders indicated that they provided support for the obligee as well as the children. However, a review of the support calculations shows that the orders did not include spousal support.

      . This order should not have been effective to a date prior to the filing of the modification petition. Kelleher v. Bush, 832 A.2d 483, 485 (Pa. Super. 2003) (modification of a support order is retroactive to the date when modification was initially sought unless the court sets forth reasons for failing to do so on the record).

      . The parties agreed at the hearing that the mortgage adjustment, if permitted under current calculations, would be reduced from $70 to $52 per week.

      . Were the rule interpreted otherwise, that is by limiting housing adjustments only to pre-divorce mortgage payments on marital residences, this rule would raise serious equal protection issues. For instance, the rule would thus treat differently children who live in the former marital residence upon which an unusually high mortgage payment is made and whose parents are now separated, from children of unmarried partners, now separated, who had similarly lived in the jointly-owned family residence and upon which an unusually high mortgage payment is made. In the latter case, the children of the unmarried couple will be deprived of housing assistance support otherwise afforded to children of a married couple. In addition, a literal interpretation ofthe rule would treat differently an obligee spouse and/ or children who, following separation, live in the marital residence upon which an unusually high mortgage payment is owed, from an obligee spouse and/or children who continued to rent the marital residence following separation, upon which unusually high rental payments are owed. In the latter case, the obligee spouse and/or children who rent will be deprived of extra support in the form of housing assistance otherwise afforded a spouse and children who owned their home.
      Although the issue is not currently before the court, it is hard for this court to imagine what rational relationship there exists between these discriminations and any policy the state might have in making them. Furthermore, these distinctions seem violative of the policy statement language set forth by the legislature in creating the support guidelines, which were established “so that persons similarly situated shall be treated similarly.” 23 Pa.C.S. §4322.

      . Proposed Rule 1910.16-6. Support guidelines. Adjustments to the basic support obligation.
      “(e) Mortgage payment. The guidelines assume that the spouse occupying the marital residence will be solely responsible for the mortgage payment, real estate taxes, and homeowners’ insurance. Similarly, the court will assume that the party occupying the marital residence will be paying the items listed unless the recommendation specifically provides otherwise. If the obligee is living in the marital residence and the mortgage payment exceeds 25 percent of the obligee’s net income (including amounts of spousal support, APL and child support), the court may direct the obligor to assume up to 50 percent of the excess amount as part of the total support award until such time as an order of equitable distribution is entered. For purposes of this subdivision, the term ‘mortgage’ shall include first mortgages, real estate taxes and homeowners’ insurance and may include any subsequent mortgages, home equity loans and any other obligations incurred during the marriage which are secured by the marital residence.
      “Explanatory comment — 2003 ...
      “Subdivision (e), relating to mortgages on the marital residence, has been amended to clarify that the rule cannot be applied after a final order of equitable distribution has been entered. To the extent that Isralsky v. Isralsky, 824 A.2d 1178 (Pa. Super. 2003), holds otherwise, it is overruled. At equitable distribution, the former marital residence will either have been awarded to one of the parties or otherwise addressed.” Pa. Bulletin, vol. 33, no. 29, p. 3491 (Recommendation 66 — Amendments to the Rules of Civil Procedure Relating to Domestic Relations Matters (July 19,2003)) (Proposed changes in bold).

      . This makes the most practical sense. If the custodial parent sells the property and moves, the child support order can easily be modified, eliminating the mortgage adjustment. However, not including it could result in the custodial parent having to move, for economic reasons, into less desirable living quarters.


author: BLACK, J.,

text:
    Venini v. BKU Inc.

      C.P. of Lehigh County,
    no. 2001-C-3275.

      Robert S. Robbins, for plaintiffs.

      Michael A. DeTommaso, for defendants.
    August 13, 2004
   BLACK, J.,

The plaintiffs seek to recover compensatory and punitive damages for personal injuries allegedly sustained by them as a result of an assault by “bouncers” at an establishment known as the Sterling Hotel. The plaintiffs claim that the bouncers were employed by the defendants and that the defendants sanctioned the assault and were negligent.

Before the court for disposition is the defendants’ motion for summary judgment. The individual defendants, Timothy Briody and Pamela Briody, who are the sole stockholders, directors and officers of the corporate defendant, BKU Inc., contend that they did not employ the security personnel at the Sterling Hotel and therefore are not responsible for their conduct. All defendants seek summary judgment on the ground that there is no evidence to support the plaintiffs’ claims against them.

The evidence submitted to the court for consideration consists of the pleadings, an affidavit of Timothy Briody, the depositions of the plaintiffs, and the depositions of two alleged witnesses to the incident referred to in the complaint.

For the reasons stated below, the defendants’ motion for summary judgment is granted on all claims against the individual defendants, Timothy J. Briody and Pamela Briody. The motion is granted in part and denied in part with respect to the claims against BKU.

FACTUAL AND PROCEDURAL BACKGROUND

When the present cause of action arose, the Sterling Hotel was owned and operated by BKU. The individual defendants, Timothy Briody and Pamela Briody, were the sole officers, directors and shareholders of BKU. On the evening of December 11,1999, the plaintiffs visited the Sterling Hotel for the purpose of purchasing food and drinks from approximately 9 p.m. until after 12 midnight. The plaintiffs allege that security personnel at the Sterling Hotel attacked them as they were preparing to leave, causing serious bodily injuries. Plaintiff Anthony Venini claims to have sustained injuries that included a gouged eye, contusions, a laceration to his head, the displacement of the septum in his nose, and bruises. Injuries to plaintiff Franklin P. Stoltz allegedly consisted of an injury to his right shoulder, throat bruises, and post-traumatic stress.

The plaintiffs contend that the security personnel responsible for their injuries were employed by the defendants and were acting on their behalf. The complaint also alleges that the defendants were on notice that their security personnel were dangerous because these individuals were not properly trained and had a reputation in the community for violence. The plaintiffs additionally claim that the defendants failed to warn them of the danger and did not intervene in order to stop the infliction of harm upon them.

The plaintiffs were arrested on the evening in question and cited for public drunkenness and disorderly conduct. The plaintiffs subsequently pled guilty to the public drunkenness and disorderly conduct charges.

This case was submitted to compulsory arbitration by court order of August 20, 2003, pursuant to Leh. R.C.P. 1301 et seq. An arbitration hearing before three arbitrators was held on March 8,2004. The arbitrators found in favor of plaintiff Anthony Venini in the amount of $8,500 and in favor of plaintiff Franklin P. Stoltz in the amount of $6,000 against all defendants. The plaintiffs filed a notice of appeal of the arbitration award, after which the defendants filed the motion for summary judgment now before the court.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is warranted after the relevant pleadings are closed under the following circumstances:

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

Summary judgment is to be granted only in a case that is clear and free from doubt. Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 736 (1998).

II. The Claims Against Defendants Timothy J. Briody and Pamela Briody

Under Pennsylvania Rule of Civil Procedure 1035.2, the party responding to a summary judgment motion has a significant burden. If the record on which the motion is submitted does not contain sufficient evidence of facts essential to the non-moving party’s cause of action or defense, the non-moving party must produce evidence by way of affidavit, admissions, answers to interrogatories or depositions. As the Pennsylvania Supreme Court stated in Ertel v. Patriot-News Co., 544 Pa. 93, 100, 101-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996),

“Allowing non-moving parties to avoid summary judgment where they have no evidence to support an issue on which they bear the burden of proof runs contrary to the spirit of Rule 1035....

“Thus, we hold that a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”

Accordingly, it is not sufficient to argue, as the plaintiffs have in their brief, that there are possible theories of recovery against the individual defendants, such as piercing the corporate veil. The mere propounding of legal theories, without any supporting evidence, does not sustain the plaintiffs’ burden. Rule 1035.2 places an affirmative duty on the plaintiffs to produce evidence on those issues on which the plaintiffs have the burden of proof.

The plaintiffs assert that Timothy J. Briody and Pamela Briody were negligent in their supervision and control of the security personnel. The plaintiffs have the burden of proving this allegation. See Schmoyer v. Mexico Forge Inc., 437 Pa. Super. 159, 163, 649 A.2d 705, 707 (1994) (claimant has the burden of proving negligence). Therefore, in response to the motion for summaiy judgment, the plaintiffs were required to produce competent evidence sufficient to take its claim of negligence on the part of the individual defendants to a jury.

An examination of the record indicates that the plaintiffs have failed to meet this burden. The plaintiffs erroneously rely on the Pennsylvania Supreme Court holding in Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), in their response to the summary judgment motion. The court cannot grant summary judgment where the movingparty relies exclusively upon oral testimony, affidavits, or depositions to establish the absence of a genuine issue of material fact. Note to Pa.R.C.P. 1035.2; Valles v. Albert Einstein Medical Center, 569 Pa. 542, 555, 805 A.2d 1232, 1239 (2002); Nanty-Glo Boro., 309 Pa. at 238, 163 A.2d at 524. The rationale behind this rule is that even if such evidence is uncontradicted, the determination of credibility lies with the jury. Only where there are no issues of credibility can summary judgment be entered in a case where the moving party has the burden of proof.

In this case, however, the Nanty-Glo rule is not applicable because the non-moving parties, the plaintiffs, have the burden of proof. In such a case, the Pennsylvania Supreme Court holding in Manzetti v. Mercy Hospital of Pittsburgh, 565 Pa. 471, 776 A.2d 938 (2001), sets the standard. In Manzetti, the court held that if the non-moving party bears the burden of proof, he may not rely upon the pleadings alone to survive summary judgment. Yet this is precisely what the plaintiffs are attempting to do. In their answer to the complaint, the defendants did not admit any element of the plaintiffs’ claims; and the plaintiffs have failed to submit any evidence in the form of affidavits, depositions, or expert reports that would support their claims of negligence on the part of the individual defendants. The depositions of .the plaintiffs and their witnesses do not make any reference to Timothy J. Briody or Pamela Briody.

Thus, the evidence presented to the court is insufficient for a jury to conclude that the individual defendants were negligent or that they are responsible for the actions of the security personnel under a theory of vicarious liability. The plaintiffs have the burden of proof on these issues, and in the absence of any evidence supporting these claims, summary judgment must be granted in favor of the individual defendants.

III. The Claims Against BKU Inc. t/a Sterling Hotel

The plaintiffs have asserted claims against BKU based on allegations of corporate negligence and vicarious liability. No evidence has been submitted to support a cause of action against BKU for corporate negligence, and the motion for summary judgment must be granted in favor of BKU on that claim. However, the claim of vicarious liability remains viable, and on that claim the motion for summary judgment is denied.

In Pennsylvania, an employer is responsible for tor-tious misconduct by an employee that causes harm to a third party, so long as the employee’s misconduct occurred in the course of and within the scope of his employment. Costa v. Roxborough Memorial Hospital, 708 A.2d 490, 493 (Pa. Super. 1998).

“The conduct of an employee is considered ‘within the scope of employment’ for purposes of vicarious liability if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer.” Id. (citations omitted)

“The determination of whether a person was acting within the scope of his employment is typically a question for the jury.” Id.; see also, Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 106, 410 A.2d 1270, 1271 (1979).

The record in the present case is sufficient to support a jury finding that the elements of the Costa test are satisfied. BKU employed the security personnel at the Sterling Hotel as bouncers. Both plaintiffs testified in their depositions that they were assaulted by several of these bouncers during their visit to the hotel. It is reasonable to infer from the nature of their positions that the bouncers were authorized by BKU to exert some degree of force in the course of performing their jobs and that their use of force was not unexpected by BKU. The incident in question also occurred inside the Sterling Hotel during the time that the bouncers were present and working for BKU. Therefore, the summary judgment motion must be denied on the claim of vicarious liability against BKU for the actions of the bouncers under the doctrine of re-spondeat superior.

CONCLUSION

For the reasons stated, the defendants’ motion for summary judgment is granted in part and denied in part. The motion is granted with respect to all claims against the individual defendants, Timothy J. Briody and Pamela Briody. The motion is also granted with respect to the claims of corporate negligence against BKU. However, the motion is denied with respect to the claims against BKU based on vicarious liability for the actions of the bouncers.

ORDER

Now, August 13, 2004, upon consideration of the defendants’ motion for summary judgment and the plaintiffs’ response thereto, for the reasons set forth in the accompanying opinion, it is ordered that the motion is granted in part and denied in part, as follows:

(1) The motion is granted with respect to all claims against defendants Timothy J. Briody and Pamela Briody, and summary judgment is hereby entered in their favor.

(2) The motion is granted with respect to the claims of corporate negligence against defendant BKU Inc. t/a Sterling Hotel (excluding claims based on vicarious liability), and partial summary judgment is entered in favor of BKU Inc., on these claims.

(3) The motion is denied with respect to the claims against BKU Inc., based on vicarious liability.

      . Affidavit of Timothy Briody.

      . Deposition of Franklin P. Stoltz, 12/10/03 (Stoltz dep.), 61-62.


author: BLACK, J,

text:
    Pursel v. Parkland School District

      C.P. of Lehigh County,
    no. 2004-C-383.

      Anne K. Manley, for plaintiffs.

      Paul N. Lalley, for defendants.
    January 11, 2005
   BLACK, J,

The plaintiffs, David and Maria Pursel, seek to recover money damages for injuries to their minor son, Joshua Pursel, who was allegedly assaulted by his homeroom teacher at Parkland High School on September 23, 2003. Before the court are the defendants’ preliminary objections in the nature of a demurrer to the complaint on the ground that the defendants are immune from liability under the Political Subdivision Tort Claims Act (PSTCA), 42 Pa.C.S. §8501 et seq.

The plaintiffs have conceded in their memorandum of law that the PSTCA is a complete bar to recovery on their claims against the Parkland School District. Therefore, the Parkland School District is dismissed as a defendant from the present action. The plaintiffs have requested that the court retain jurisdiction over the school district on the ground that there may be a request by the individual defendants for indemnification from the school district in the event the individual defendants are found liable. However, no claim for indemnification has been made, and it is difficult to envision how such a claim could be asserted successfully on the facts alleged. Therefore, this is not a sufficient basis for retaining the Parkland School District as a defendant.

With respect to the individual defendants, based on the allegations in the complaint, we find that they are also immune from liability under the PSTCA. Therefore, the complaint is dismissed as to the individual defendants also. We have, however, given the plaintiffs an opportunity to further amend their complaint, if they are able to do so in good faith, to assert a claim for willful misconduct against the individual defendants. We find that the averments in the complaint, as presently pleaded, do not set forth a cognizable claim for willful misconduct.

FACTS

For purposes of a demurrer, we must accept as true all well-pleaded averments in the complaint together with all inferences reasonably deducible therefrom. Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976). These averments are as follows: The plaintiffs are the parents and natural guardians of Joshua Pursel, a minor child born on July 11,1986. Joshua was a student at Parkland Fligh School on September 23, 2003. At that time the individual defendants, Dr. Gary McCartney, Richard T. Sniscek and Michelle Minotti, were all employed by the defendant, the Parkland School District, at Parkland Fligh School as superintendent, principal and assistant principal respectively.

On September 23, 2003, while attending his homeroom class, Joshua was'physically assaulted by his homeroom teacher, Robert Greacen, an employee of the Parkland School District. Specifically, Greacen physically removed the child from the classroom and threw him up against a wall outside the classroom, causing severe injuries to the child’s right knee.

Greacen had engaged in similar conduct prior to this date involving other minor students at the Parkland Fligh School. Plaintiffs believe that the individual defendants, who were Greacen’s supervisors, “were aware of and on notice of said prior acts” as well as similar subsequent acts on the part of Greacen. Plaintiffs also believe that individual defendants “knew or, in the exercise of ordinary care, should have known of the prior similar acts” and of Greacen’s “propensity for such conduct.”

The defendants failed to report Greacen for his acts against the minor child pursuant to the Pennsylvania Child Protective Services Act, 23 Pa.C.S. §6302 et seq.; and retained Greacen as an employee of the school district after they “knew, or should have known” of his propensity to engage in similar conduct. The defendants agreed not to report the prior acts of Greacen in order to conceal this conduct.

DISCUSSION

I. The Political Subdivision Tort Claims Act

The PSTCA grants local government agencies abroad immunity from personal injury claims:

“Except as otherwise provided in this subchapter, 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.” 42 Pa.C.S. §8541.

The Parkland School District is a “local agency” for purposes of this statute. Petula v. Mellody, 158 Pa. Commw. 212, 217, 631 A.2d 762, 765 (1993).

There are exceptions to this general grant of immunity where the liability-creating conduct falls within one of eight categories enumerated at 42 Pa.C.S. §8542(b). These categories include liability arising from (1) the operation of motor vehicles, (2) the care, custody or control of personal property, (3) the care, custody or control of real property, (4) trees, traffic controls and street lighting, (5) utility service facilities, (6) streets, (7) sidewalks, and (8) the care, custody or control of animals. None of these exceptions applies to this case. Therefore, the general grant of immunity in section 8541 controls and insulates the Parkland School District from liability.

The individual defendants, Dr. McCartney, Mr. Sni-scek, and Ms. Minotti, are also immune under the PSTCA to the same extent as the school district for actions within the scope of their duties, subject to certain limitations. Thus, section 8545 of the PSTCA provides:

“An employee of a local agency is not liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter.” 42 Pa.C.S. §8545.

This immunity is referred to as “official immunity.” An important limitation on official immunity is contained in section 8550, which states:

“In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity), and 8549 (relating to limitation on damages) shall not apply.” 42 Pa.C.S. §8550.

Under this section an employee of a local agency loses his section 8545 official immunity if his conduct constitutes “a crime, actual fraud, actual malice or willful misconduct.” Id.

In this case the plaintiffs argue that the individual defendants committed a crime and also that they were guilty of willful misconduct which caused the injuries to their son. They base their allegation of a criminal violation on the Pennsylvania Child Protective Services Law, 23 Pa.C.S. §6302 et seq., which states in pertinent part the following:

“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.” 23 Pa.C.S. §6353(a).

“An administrator who willfully violates subsection (a) commits a misdemeanor of the third degree.” 23 Pa.C.S. §6353(d). (emphasis added)

The plaintiffs contend that the individual defendants’ failure to report the prior actions of Greacen to law enforcement officials constituted a crime, thereby depriving them of their official immunity under the PSTCA. However, a failure to report is not criminal unless it was done “willfully.” This requires that the defendants had actual knowledge of prior acts of Greacen that led to “serious bodily injury or sexual abuse or sexual exploitation” of a student, and that they intentionally did not report this misconduct. The complaint does not allege that the individual defendants had actual knowledge of prior acts by Greacen involving “serious bodily injury or sexual abuse or sexual exploitation.” Thus, the complaint does not plead a criminal violation of the Pennsylvania Child Protective Services Law.

The plaintiffs also argue that the individual defendants forfeited their official immunity by committing acts of willful misconduct. The problem with this argument is that the complaint does not aver any willful misconduct on the part of the individual defendants. “Willful misconduct” is more than mere negligence or even gross negligence. For purposes of section 8550 of the PSTCA, “willful misconduct” has the same meaning as the term “intentional tort.” Delate v. Kolle, 667 A.2d 1218, 1221 (Pa. Commw. 1995); see also, Black’s Law Dictionary 54 (7th ed. 1999), which defines “willful misconduct” as “misconduct committed voluntarily and intentionally.” In Evans v. Philadelphia Transportation Company, 418 Pa. 567, 574, 212 A.2d 440, 443 (1965), the Supreme Court defined “willful misconduct” to mean that “the actor desired to bring about the result that followed, or at least that he was aware that it was substantially certain to ensue.” (emphasis added) It is a step beyond “wanton misconduct,” which “means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences.” Gaul v. Consolidated Rail Corp., 383 Pa. Super. 250, 262-63, 556 A.2d 892, 898 (1989), quoting Prosser, Torts §33 at 151 (2nd ed. 1955). (emphasis added)

The complaint stops short of making an allegation of willful misconduct against the individual defendants. It states that the defendants knew or, in the exercise of ordinary care, should have known, of prior similar acts of Robert Greacen, and that they failed to report these prior acts or take steps to prevent the incident at issue. These allegations would support a cause of action for negligence, but the individual defendants are immune from negligence claims. The allegation that the defendants knew or should have known does not support an intentional tort claim.

The complaint does not identify any intentional tort that the defendants are alleged to have committed. Count II is entitled “negligence”; Count III is entitled “respondeat superior” and pertains only to the school district; Count IV, entitled “civil conspiracy,” fails to state a cognizable claim, as will be shown below; and the first 20 paragraphs of the complaint, which (though unlabeled) are presumably Count I, do not identify any intentional tort.

The case of Scott v. Willis, 116 Pa. Commw. 327, 543 A.2d 165 (1988), is on point. There, a teacher sexually assaulted two elementary students on school grounds. The students sued various school district officials claiming that these officials “knew or should have known about the deviate sexual tendencies of [the teacher].” Id. at 330, 543 A.2d at 167. The plaintiffs argued that the school officials “possessed actual or constructive knowledge of the [teacher’s] past deviate sexual behavior and nonetheless retained him as an employee.” Id. at 334-35, 543 A.2d at 169. The plaintiffs further alleged that the conduct of the school officials in retaining the teacher was “willful.” The Commonwealth Court affirmed the grant of a demurrer, finding that the official immunity provision in section 8545 of the PSTCA protected the school officials from liability. The court rejected the plaintiffs’ contention that the allegations against the school officials amounted to “willful misconduct” under section 8550.

The plaintiffs have called to our attention the Federal District Court’s decision in DiSalvio v. Lower Merion School District, 158 F. Supp.2d 553 (E.D. Pa. 2001), but we find this case to be distinguishable, both procedurally and substantively. Procedurally, DiSalvio involved a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Federal District Court denied the motion in view of the liberal notice-pleading provisions under the Federal Rules of Civil Procedure. The Pennsylvania Rules of Civil Procedure require fact-pleading, and as we have noted above, the plaintiffs’ complaint in this case does not set forth facts that would constitute an intentional tort. Furthermore, the substantive averments in DiSalvio were different. The complaint alleged that the individual defendants were aware that the wrongdoer’s continued abusive behavior “was substantially certain to follow if they did not act, [so that] their desire that it continue can be implied.” Id. at 564. No such allegation has been made in the instant case.

Thus, there are two obvious deficiencies that must be cured if plaintiffs are to successfully plead a claim of willful misconduct. First, the complaint alleges that the individual defendants “knew or, in the exercise of ordinary care, should have known” of prior similar actions by Greacen. This is a negligence standard; the complaint does not allege that the defendants had actual knowledge. Second, even actual knowledge of the prior acts is not sufficient to sustain a claim of intentional tort, unless the defendants were aware that a repetition of these actions was substantially certain to ensue. See Evans v. Philadelphia Transportation Company, supra.

For these reasons, the defendants’ demurrer to the complaint is sustained on the basis of their immunity under the PSTCA. However, we grant the plaintiffs leave to amend the complaint in the event they can in good faith allege willful misconduct on the part of the individual defendants. We do so because in reviewing a demurrer, we cannot dismiss a case definitively unless it is clear that the plaintiffs cannot state a cause of action.

II. The Conspiracy Claim

The conspiracy claim in Count IV has additional deficiencies beyond the immunity issue. The ingredients of a cause of action for civil conspiracy were recently summarized in Goldstein v. Phillip Morris Inc., 854 A.2d 585, 590 (Pa. Super. 2004), as follows:

“In order to state a civil action for conspiracy, a complaint must allege: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage. . . . Additionally, absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act.” See also, McKeeman v. Corestates Bank N.A., 751 A.2d 655, 660 (Pa. Super. 2000). (citations and internal quotation marks omitted)

The complaint fails in two respects to state a cause of action for conspiracy. First, the complaint does not aver any overt act on the part of a defendant to further the alleged common purpose. The plaintiffs argue that no overt act is required because the alleged conspiracy is one of concealment. In such a case they contend that inaction by the co-conspirators is sufficient. However, the case law does not support such a proposition. The requirement of an overt act is an essential part of the conspiracy law. Goldstein, 854 A.2d at 590. Concealment may be the basis for a conspiracy claim, but only where there has been an overt act to cover up or conceal. For example, when the Watergate co-conspirators shredded or “deep-sixed” documents, these were overt acts aimed at furthering their common purpose of concealment. The complaint does not aver any overt act to cover up or conceal in this case.

Secondly, a civil conspiracy claim cannot be based on an allegation of an intra-corporate conspiracy. “A single entity cannot conspire with itself and, similarly, agents of a single entity cannot conspire among themselves.” Rutherfoord v. Presbyterian-University Hospital, 417 Pa. Super. 316, 333-34, 612 A.2d 500, 508 (1992). Exceptions to this rule have been made in the following three situations: (1) where the agent or employee acts in pursuit of his or her own self-interest, not for the benefit of the corporation; (Castle v. Crouse, civil action no. 03-5252 (E.D. Pa. Feb. 11, 2004)); (2) where an independent third party participates in the conspiracy (Jackson v. T & N Van Service, civil action no. 99-1267 (E.D. Pa. May 9, 2000)); or (3) where a parent and subsidiary corporation are alleged to have participated in the conspiracy (Commonwealth of Pennsylvania v. BASF Corp., no. 3127 (C.P. Phila. March 15, 2001)). None of these exceptions is relevant here. The complaint does not allege that the individual defendants were acting for their own self-interest, or that there was any independent third party involved, or that the conspiracy involved a parent and subsidiary corporation. Therefore, Count IV of the complaint fails to state a cause of action not only because it fails to aver an overt act, but also because of the principle that there cannot be an intra-corporate conspiracy.

For the reasons stated, the demurrer to Count IV is sustained.

ORDER

Now, January 11,2005, upon consideration of the defendants’ preliminary objections to the plaintiffs’ amended complaint, after review of the parties’ briefs and oral argument, for the reasons set forth in the accompanying opinion, it is ordered that the preliminary objections are sustained as follows:

(1) The preliminary objection in the nature of a demurrer is sustained as to all claims against the defendant Parkland School District, and the complaint is dismissed as to said defendant.

(2) The preliminary objection in the nature of a demurrer is sustained as to all claims against the individual defendants, Dr. Gary McCartney, Richard T. Sniscek and Michelle Minotti, and the complaint is dismissed as to them unless the plaintiffs file an amended complaint within 20 days from the date of this order setting forth a cognizable claim for willful misconduct on the part of the individual defendants.

      . Pa.R.C.P. 1030 requires that all affirmative defenses, such as immunity from suit, be pled in a responsive pleading under “new matter.” However, the Commonwealth Court has held that preliminary objections may be used to raise the immunity defense where (1) the defense appears on the face of the complaint, and (2) the plaintiff does not file preliminary objections to the defendant’s preliminary objections in the nature of amotion to strike. Scott v. Willis, 116 Pa. Commw. 327, 330-31 n.2, 543 A.2d 165, 167 n.2 (1988).

      . All references to the “complaint” herein are to the plaintiffs’ amended complaint filed on August 25, 2004.

      . Complaint, ¶12.

      . Id, ¶13.

      . Id., ¶24.

      . A “school administrator” is defined as “[t]he person responsible for the administration of a public or private school, intermediate unit or area vocational-technical school.” 23 Pa.C.S. §6351.

      . A failure to report the injuries to the plaintiffs’ son Joshua could not have been the cause of Joshua’s injuries, and therefore cannot support the plaintiffs’ claim in this case.

      . Complaint, ¶13.


author: PAPALINI, J.,

text:
    Hurt v. Philadelphia Housing Authority

      David J. Alexander, for plaintiffs.

      Brian J. Slipakoff, for defendant.
    January 20, 2005
   PAPALINI, J.,

Defendant Philadelphia Housing Authority has filed a motion for partial summary judgment, contending that plaintiffs Harold Hurt Jr. and Philip Hurt have failed to set forth valid causes of action in their complaints alleging deprivation of their federal civil rights pursuant to 42 U.S.C. §1983. Defendant does not contest plaintiffs’ state claims alleging negligence.

Plaintiffs are represented by David J. Alexander, Esquire, and defendant is represented by Brian J. Slipakoff, Esquire.

Both plaintiffs allege that, as minors, they were injured by exposure to lead-based paint. Plaintiff Harold Hurt Jr. asserts that this exposure occurred at 5532 Cambridge Street, Philadelphia, Pa., where he resided from 1985 to 1992, and that defendant was the owner, landlord or manager of that premises. Plaintiff Philip Hurt asserts that he was exposed at the same premises, where he resided from 1985 to 2000.

In Count IX of the complaint of Harold Hurt Jr. and Count II of the first amended complaint of Philip Hurt, they assert a cause of action for violation of the federal Civil Rights Act of 1871,42 U.S.C. §1983. That Act provides:

“Section 1983. Civil action for deprivation of rights

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

In answer to a query from this court for copies of the applicable federal statutes and regulations upon which plaintiffs rely, Mr. Alexander responded on November 9, 2004, with a letter stating that, through pattern and practice, defendant failed to comply with federal law concerning elimination of the hazards of lead-based paint. He cited and attached the Lead-Based Paint Poisoning Prevention Act (LPPPA), 42 U.S.C. §§4822,4841,4842, 4846 and federal regulations codified at 24 C.F.R. §§965.701 through 965.711. Counsel mentioned the United States Housing Act of 1937, but did not attach a copy or even provide a citation, so we will not consider that statute.

A. LPPPA

Plaintiffs cite the following statutory provision: 42 U.S.C. §§4822, 4841, 4842, 4846.

Over the years, there have been various cases deciding whether violation of the LPPPA supports a personal federal right, enforceable through a section 1983 action.

The following cases held that the LPPPA does not confer a personal federal right, enforceable through a section 1983 action: Santiago v. Hernandez, 53 F. Supp.2d 264 (E.D. N.Y. 1999); Lindsay v. New York City Housing Authority, 1999 U.S. Dist. Lexis 1893 (E.D. N.Y. 1999); Holloway v. Kemp, 1994 U.S. Dist. Lexis 8497 (E.D.Pa. 1994); Roseberry v. United States, 736 F. Supp. 408 (D.N.H. 1990).

The following cases held that the LPPPA does confer a personal federal right, enforceable through a section 1983 action: German v. Federal Home Loan Mortgage Corp., 1999 U.S. Dist. Lexis 19029 (S.D. N.Y. 1999), certified for interlocutory appeal at 2000 U.S. Dist. Lexis 10057 (S.D. N.Y. 2000); Aristil v. The Housing Author ity of the City of Tampa, 54 F. Supp.2d 1289 (M.D. Fla. 1999); Roman v. Morace, 1997 U.S. Dist. Lexis 19926 (S.D. N.Y. 1997); Simmons v. Charleston Housing Authority, 881 F. Supp. 225 (S.D. W.Va. 1995); Hurt v. Philadelphia Housing Authority, 806 F. Supp. 5151 (E.D. Pa. 1992); Perry v. Housing Authority of the City of Charleston, 664 F.2d 1210 (4th Cir. 1981).

All of the above cases preceded two United States Supreme Court cases in which the court clarified what was necessary to establish a personal federal right, enforceable through a section 1983 action: Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), and Gonzaga University v. Doe, 535 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).

In Alexander v. Sandoval, the court said:

“Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.... Statutory intent on this latter point is determinative.... Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute_‘Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.’...” 532 U.S. 286-87. (citations omitted)

In Gonzaga University v. Doe, the Supreme Court said:

“We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under section 1983. Section 1983 provides a remedy only for the deprivation of ‘rights, privileges, or immunities secured by the constitution and laws’ of the United States. Accordingly, it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of that section. This being so, we further reject the notion that our implied right of action cases are separate and distinct from our section 1983 cases. To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under section 1983.

“We have recognized that whether a statutory violation may be enforced through section 1983 ‘is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.’... But the inquiries overlap in one meaningful respect — in either case we must first determine whether Congress intended to create a federal right. Thus we have held that ‘the question whether Congress... intended to create a private right of action [is] definitively answered in the negative’ where ‘a statute by its terms grants no private rights to any identifiable class.’... For a statute to create such private rights, its text must be ‘phrased in terms of the persons benefited.’ . . . But even where a statute is phrased in such explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent ‘to create not just a private right but also a private remedy.’ Alexander v. Sandoval, 532 U.S. 275, 286, 149 L.Ed.2d 517, 121 S.Ct. 1511 (2001)_” 536 U.S. at 283-84. (citations omitted)

Thus, in order for a person to proceed with a section 1983 action, a statute must confer a privately enforceable civil right, not just a benefit.

Cases after Alexander v. Sandoval and Gonzaga University v. Doe, have narrowly interpreted federal statutes.

We have reviewed the provisions of the LPPPA and find that they include no rights-creating terms. Significantly, the legislation requires the testing of paint, not people.

Two federal districts courts in the Sixth Circuit, citing both Alexander v. Sandoval and Gonzaga University v. Doe, have held that neither the text nor structure of the LPPPA supported a conclusion that Congress intended to create enforceable rights under section 1983, for children residing in public housing who are exposed to lead-based paint. L.B. III v. Housing Authority of Louisville, 2004 U.S. Dist. Lexis 23731 (W.D. Ky. 2004); Johnson v. City of Detroit, 319 F. Supp.2d 756 (E.D. Mich. 2004).

We find the reasoning in both of those cases persuasive, and reach the same conclusion.

B. FEDERAL REGULATIONS

Plaintiffs have also cited 24 C.F.R. §965.701-.711.

In Alexander v. Sandoval, supra, 532 U.S. at 289, the Supreme Court said that “Language in a regulation may invoke a private right of action that Congress through a statutory text created, but it may not create a right that Congress has not.” See Johnson v. City of Detroit, supra; Save Our Valley v. Sound Transit, supra.

Because we conclude that the LPPPA has no rights creating language, federal regulations relating to the LPPPA can create no such rights.

Our own review found that the housing quality standards (HQS) for assisted public housing does require that the provisions of the LPPPA be implemented by HUD and the Federal Housing Administration. See 24 C.F.R. §982.401 (a)(2)(i)(I)(j).

However, in 1995, a provision was adopted at 24 C.F.R. §982.406, which provides:

“Part 9.82 does not create any right of the family, or any parly other than HUD or the FLA, to require enforcement of the HQS requirements by HUD or the HA, or to assert any claim against HUD or the HA, for damages, injunction or other relief, for alleged failure to enforce the HQS.”

Although, section 982.406 was not in effect during most of the period of the plaintiffs’ alleged exposure to lead-based paint, we conclude that it reveals an administrative conclusion that there was never an intent by Congress to create personal federal rights which could be enforced, when it enacted the LPPPA.

C. CLAIM BASED ON VIOLATIONS OF U.S. CONSTITUTION

In a letter dated November 23, 2004, Mr. Alexander asserted that plaintiffs had a constitutionally guaranteed right to be secure in their person as a clearly established constitutional right to liberty protected by the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs cited numerous federal cases, none of which related to personal injury caused by the condition of public housing. Ten of the cases involved search and seizure, assault by police, or assault in a prison setting. The three others involved the denial of a promotion (the court found no section 1983 cause of action), seizure under an unconstitutional Mississippi replevin law and a school suspension case.

On this issue, we agree with the district court’s opinion in Hurt v. Philadelphia Housing Authority, supra, 806 F. Supp. at 522-23. We conclude that plaintiffs did not have a right under the Fifth and Fourteenth Amendments to the United States Constitution to have the premises in which they voluntarily lived, be free of lead-based paint. They would only have a cause of action if they were in custodial care or had been forced by the Housing Authority to live at 5532 Cambridge Street.

D. CONCLUSION

For the reasons set forth above, we are striking the federal civil rights claims of both plaintiffs for damages pursuant to 42 U.S.C. §1983.

However, because we conclude that the issue of whether plaintiffs have a viable civil rights claim under section 1983 “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from [this] order may materially advance the ultimate termination of this matter,” we are sua sponte certifying this order for immediate interlocutory appeal pursuant to Pa.R. A.P. 1311 and 42 Pa.C.S. §702(b). Any party to this litigation may petition the appropriate appellate court to accept such an appeal.

ORDER

And now, January 20, 2005, after consideration of defendant’s motion for partial summary judgment and plaintiffs’ responses thereto, it is hereby ordered and decreed that the motion is granted: With respect to C.R 0307-0512, Count IX of the complaint, alleging violation of 42 U.S.C. §1983 is stricken with prejudice; with respect to C.R 0405-2966, Count II of the first amended complaint, alleging violation of 42 U.S.C. §1983 is stricken with prejudice.

It is further ordered and decreed that this order is certified for immediate interlocutory appeal pursuant to Pa.R.A.P. 1311 and 42 Pa.C.S. §702(b), because we conclude that an issue in this case “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from [this] order may materially advance the ultimate termination of this matter....”

      .42 U.S.C. §4822:
      “(a) General requirements.
      “(1) Elimination of hazards. The Secretary of Housing and Urban Development (hereafter in this section referred to as the secretary) shall establish procedures to eliminate as far as practicable the hazards of lead-based paint poisoning with respect to any existing housing which may present such hazards and which is covered by an application for mortgage insurance or housing assistance payments under a program administered by the secretary or otherwise receives more than $5,000 in project-based assistance under a federal housing program. Beginning on January 1,1995, such procedures shall apply to all such housing that constitutes target housing, as defined in section 1004 of the Residential Lead-Based Paint Hazard Reduction Act of 1992 [42 USCS §485 lb], and shall provide for appropriate measures to conduct risk assessments, inspections, interim controls, and abatement of lead-based paint hazards. At a minimum, such procedures shall require—
      “(A) the provision of lead hazard information pamphlets, developed pursuant to section 406 of the Toxic Substances Control Act [15 USCS §2685], to purchasers and tenants;
      “(B) periodic risk assessments and interim controls in accordance with a schedule determined by the secretary, the initial risk assessment of each unit constructed prior to 1960 to be conducted not later than January 1, 1996, and for units constructed between 1960 and 1978—
      “(i) not less than 25 percent shall be performed by January 1,1998;
      “(ii) not less than 50 percent shall be performed by January 1,2000; and
      “(iii) the remainder shall be performed by January 1,2002;
      “(C) inspection for the presence of lead-based paint prior to federally-funded renovation or rehabilitation that is likely to disturb painted surfaces;
      “(D) reduction of lead-based paint hazards in the course of rehabilitation projects receiving less than $25,000 per unit in federal funds;
      “(E) abatement of lead-based paint hazards in the course of substantial rehabilitation projects receiving more than $25,000 per unit in federal funds;

        “(F) where risk assessment, inspection, or reduction activities have been undertaken, the provision of notice to occupants describing the nature and scope of such activities and the actual risk assessment or inspection reports (including available information on the location of any remaining lead-based paint on a surface-by-surface basis); and
      “(G) such other measures as the secretary deems appropriate.
      “(2) Additional measures. The secretary may establish such other procedures as may be appropriate to carry out the purposes of this section.
      “(3) Disposition of federally owned housing.
      “(A) Pre-1960 target housing. Beginning on January 1, 1995, procedures established under paragraphs (1) and (2) shall require the inspection and abatement of lead-based paint hazards in all federally owned target housing constructed prior to 1960.
      “(B) Target housing constructed between 1960 and 1978. Beginning on January 1, 1995, procedures established under paragraphs (1) and (2) shall require an inspection for lead-based paint and lead-based paint hazards in all federally owned target housing constructed between 1960 and 1978. The results of such inspections shall be made available to prospective purchasers, identifying the presence of lead-based paint and lead-based paint hazards on a surface-by-surface basis. The secretary shall have the discretion to waive the requirement of this subparagraph for housing in which a federally funded risk assessment, performed by a certified contractor, has determined no lead-based paint hazards are present.
      “(C) Budget authority. To the extent that subparagraphs (A) and (B) increase the cost to the government of outstanding direct loan obligations or loan guarantee commitments, such activities shall be treated as modifications under section 504(e) of the Federal Credit Reform Act of 1990 and shall be subject to the availability of appropriations. To the extent that paragraphs (A) and (B) impose additional costs to the Resolution Trust Corporation and the Federal Deposit Insurance Corporation, its requirements shall be carried out only if appropriations are provided in advance in an appropriations Act. In the absence of appropriations sufficient to cover the costs of subparagraphs (A) and (B), these requirements shall not apply to the affected agency or agencies.
      “(D) Definitions. For the purposes of this subsection, the terms ‘inspection,’ ‘abatement,’ ‘lead-based paint hazard,’ ‘federally owned housing,’ ‘targethousing,’ ‘risk assessment,’ and ‘certified contractor’ have the same meaning given such terms in section 1004 of the Residential Lead-Based Paint Hazard Reduction Act of 1992 [42 USCS §485 lb].
      “(4) Definitions. For purposes of this subsection, the terms ‘risk assessment,’ ‘inspection,’ ‘interim control,’ ‘abatement,’ ‘reduction,’ and ‘ lead-based paint hazard’ have the same meaning given such terms in section 1004 of the Residential Lead-Based Paint Hazard Reduction Act of 1992 [42 USCS §485lb].
      “(b) Measurement criteria. The procedures established by the secretary under this section for the risk assessment, interim control, inspection, and abatement of lead-based paint hazards in housing covered by this section shall be based upon guidelines developed pursuant to section 1017 of the Residential Lead-Based Paint Hazard Reduction Act of 1992 [42 USCS §4852c],
      “(c) Inspection requirements. The secretary shall require the inspection of all intact and nonintact interior and exterior painted surfaces of housing subject to this section for lead-based paint using an approved x-ray fluorescence analyzer, atomic absorption spectroscopy, or comparable approved sampling or testing technique. A certified inspector or laboratory shall certify in writing the precise results of the inspection. If the results equal or exceed a level of 1.0 milligrams per centimeter squared or 0.5 percent by weight, the results shall be provided to any potential purchaser or tenant of the housing. The secretary shall periodically review and reduce the level below 1.0 milligram per centimeter squared or 0.5 percent by weight to the extent that reliable technology makes feasible the detection of a lower level and medical evidence supports the imposition of a lower level. The requirements of this subsection shall apply as provided in subsection (d).

        “(d) Abatement required.
      “(1) Transitional testing and abatement in public housing receiving modernization assistance. In the case of public housing assisted with capital assistance provided under section 9 of the United States Housing Act of 1937 [42 USCS §1437g], the secretary shall require the inspection described in subsection (c) for—
      “(A) a random sample of dwellings and common areas in all public housing projects assisted under such section; and
      “(B) each dwelling in any public housing project in which there is a dwelling determined under subparagraph (A) to have lead-based paint hazards, except that the secretary shall not require the inspection of each dwelling if the secretary requires the abatement of the lead-based paint hazards for the surfaces of each dwelling in the public housing project that correspond to the surfaces in the sample determined to have such hazards under subparagraph (A).
      “The secretary shall require the inspection of all housing subject to this paragraph in accordance with the modernization schedule. A public housing agency may elect to test for lead-based paint using atomic absorption spectroscopy and may elect to abate lead-based paint and dust containing lead under standards more stringent than that in subsection (c), including the abatement of lead-based paint and dust which exceeds the standard of lead permitted in paints by the Consumer Product Safety Commission under this Act [42 USCS §4801 et seq.], and such abatement shall qualify for capital assistance under section 9 of the United States Housing Act of 1937 [42 USCS §1437g]. The secretary shall require abatement of lead-based paint and lead-based paint hazards in housing in which the test results equal or exceed the standard established by or under subsection (c). Final inspection and certification after abatement shall be made by a qualified inspector, industrial hygienist, or local public health official.
      “(2) HUD-owned properties.
      “(A) Abatement demonstration program. In cariying out the requirements of this subsection with respect to single-family and multifamily properties owned by the Department of Housing and Urban Development and public housing, the secretary shall utilize a sufficient variety of abatement methods in a sufficient number of areas and circumstances to demonstrate their relative cost-effectiveness and their applicability to various types of housing. For purposes of the demonstration, a public housing agency may elect to test for lead-based paint using atomic absorption spectroscopy and may elect to abate lead-based paint and dust containing lead under standards more stringent than that in subsection (c), including the abatement of lead-based paint and dust which exceeds the standard of lead permitted in paints by the Consumer Product Safety Commission under this Act [42 USCS §4801 et seq.], and such abatement shall qualify for assistance under section 14 of the United States Housing Act of 1937.
      “(B) Report. Not later than 18 months after the effective date of the regulations issued to carry out this subsection, the secretary shall transmit to the Congress the findings and recommendations of the secretary as a result of the demonstration program, including any recommendations of the secretary for legislation to revise the requirements of this subsection. Based on the demonstration, the secretary shall prepare and include in the report a comprehensive and workable plan for the cost-effective inspection and abatement of public housing in accordance with paragraph (3), including an estimate of the total cost of abatement in accordance with paragraph (3)(B). In preparing such report, the secretary shall examine—
      “(i) the most reliable technology available for detecting lead-based paint, including X-ray fluorescence and atomic absorption spectroscopy;
      “(ii) the most efficient and cost-effective methods for abatement, including removal, containment, or encapsulation of the contaminated components, procedures which minimize the generation of dust (including the high efficiency vacuum removal of leaded dust), and procedures that provide for offsite disposal of the removed components, in compliance with all applicable regulatory standards and procedures;
      “(iii) safety considerations in testing, abatement, and worker protection;

        “(iv) the overall accuracy and reliability of laboratory testing of physical samples, x-ray fluorescence machines, and other available testing procedures;
      “(v) availability of qualified samplers and testers;
      “(vi) an estimate of the amount, characteristics, and regional distribution of housing in the United States that contains lead-based paint hazards at differing levels of contamination; and
      “(vii) the merits of an interim containment protocol for public housing dwellings that are determined to have lead-based paint hazards but for which comprehensive improvement assistance under section 14 of the United States Housing Act of 1937 is not available.
      “(3) Testing and abatement of other public housing.
      “(A) Required inspection. The secretary shall require the inspection described in subsection (c) for—
      “(i) a random sample of dwellings and common areas in all public housing that is not subject to paragraph (1); and
      “(ii) each dwelling in any public housing project in which there is a dwelling determined under clause (i) to have lead-based paint hazards, except that the secretary shall not require the inspection of each dwelling if the secretary requires the abatement of the lead-based paint hazards for the surfaces of each dwelling in the public housing project that correspond to the surfaces in the sample determined to have such hazards under clause (i).
      “(B) Schedule. The secretary shall require the inspection of all housing subject to this paragraph prior to the expiration of five years after the report is required to be transmitted under paragraph (2)(B). The secretary may prioritize, within such five-year period, inspections on the basis of vacancy, age of housing, or projected modernization or rehabilitation. The secretary shall require abatement and final inspection and certification of such housing in accordance with the last two sentences of paragraph (1).
      “(4) Report required. Not later than nine months after completion of the demonstration required by paragraph (2), the secretary shall, based on the demonstration, prepare and transmit to the Congress, a comprehensive and workable plan, including any recommendations for changes in legislation, for the prompt and cost effective inspection and abatement ofprivately owned single family and multifamily housing, including housing assisted under section 8 of the United States Housing Act of 1937 [42 USCS §1437f]. After the expiration of the nine-month period referred to in the preceding sentence, the secretary may not obligate or expend any funds or otherwise carry out activities related to any other policy development and research project until the report is transmitted.
      “(e) Exceptions. The provisions of this section shall not apply to—
      “(1) housing for the elderly or handicapped, except for any dwelling in such housing in which any child who is less than seven years of age resides or is expected to reside;
      “(2) any project for which an application for insurance is submitted under section 231, 232, 241, or 242 of the National Housing Act [12 USCS §§1715v, 1715w, 1715z-6, or 1715z-7]; or
      “(3) any zero-bedroom dwelling.
      “(f) Funding. The secretary shall carry out the provisions of this section utilizing available federal funding sources. The secretary shall use funds available under the Capital Fund under section 9 of the United States Housing Act of 1937 [42 USCS §1437g] to carry out this section in public housing. The secretary shall submit annually to the Congress an estimate of the funds required to carry out the provisions of this section with the reports required by paragraphs (2)(B) and (4).
      “(g) Interpretation of section. This section may not be construed to affect the responsibilities of the Environmental Protection Agency with respect to the protection of the public health from hazards posed by lead-based paint.
      “History:
      “(Jan. 13,1971, P.L. 91-695, title III, §302, as added Nov. 9,1973, P.L. 93-151, §4(a)(l), 87 stat. 566; Feb. 5, 1988, P.L. 100-242, title V, subtitle C, §566(a), 101 stat. 1945; Act Nov. 7, 1988, P.L. 100-628, title X, subtitle E, §1088(a)-(f), (h), 102 stat. 3280; Oct. 28, 1992, P.L. 102-550, title X, subtitle A, §§1012(a)-(d), 1013,106 stat. 3904,3907; Oct. 21,1998, P.L. 105-276, title V, subtitle B, part 1, §522(a)(4), 112 stat. 2564.)”

      . Section 4841. Definitions
      “As used in this Act [42 USCS §4801 et seq.]—
      “(1) The term ‘state’ means the several states, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States.
      “(2) The term ‘units of general local government’ means (A) any
      city, county, township, town, borough, parish, village, or other general purpose political subdivision of a state, (B) any combination of units of general local government in one or more states, (C) an Indian tribe, or (D) with respect to lead-based paint poisoning elimination activities in their urban areas, the territories and possessions of the United States.
      “(3)(A) Except as provided in subparagraph (B), the term ‘lead-based paint’ means any paint containing more than five-tenths of 1 per centum lead by weight (calculated as lead metal) in the total nonvolatile content of the paint, or the equivalent measure of lead in the dried film of paint already applied, or both.
      “(B)(i) The Consumer Product Safety Commission shall, during the six-month period beginning on the date of the enactment of the National Health Promotion and Disease Prevention Act of 1976, determine, on the basis of available data and information and after providing opportunity for an oral hearing and considering recommendations of the Secretaiy of Health, Education and Welfare (Secretary of Health and Human Services) (including those of the Centers for Disease Control and Prevention) and of the National Academy of Sciences, whether or not a level of lead in paint which is greater than six one-hundredths of 1 per centum but not in excess of five-tenths of 1 per centum is safe. If the commission determines, in accordance with the preceding sentence, that another level of lead is safe, the term ‘lead-based paint’ means, with respect to paint which is manufactured after the expiration of the six-month period beginning on the date of the commission’s determination, paint containing by weight (calculated as lead metal) in the total nonvolatile content of the paint more than the level of lead determined by the commission to be safe or the equivalent measure of lead in the dried film of paint already applied, or both.
      ‘‘(fi) Unless the definition of the term “lead-based paint” has been established by a determination of the Consumer Product Safety Commission pursuant to clause (i) of this subparagraph, the terra ‘lead-based paint’ means, with respect to paint which is manufactured after the expiration of the 12-month period beginning on such date of enactment, paint containing more than six one-hundredths of 1 per centum lead by weight (calculated as lead metal) in the total nonvolatile content of the paint, or the equivalent measure of lead in the dried film of paint already applied, or both.
      “History:
      “(Jan. 13, 1971, P.L. 91-695, title V, §501, 84 stat. 2080; Nov. 9, 1973, P.L. 93-151, §6,87 stat. 567; June 23,1976, P.L. 94-317, title II, §204(c), 90 stat. 706; Oct. 27, 1992, P.L. 102-531, title III, §312(g), 106 stat. 3506.)”

      . Section 4842. Consultation by secretary with other departments and agencies
      “In carrying out their respective authorities under this Act (42 U SCS §4801 et seq.), the Secretary of Housing and Urban Development and the Secretary of Health, Education, and Welfare (Secretary of Health and Human Services) shall each cooperate with and seek the advice of the heads of any other departments or agencies regarding any programs under their respective responsibilities which are related to, or would be affected by, such authority.
      “History:
      “(Jan. 13, 1971, P.L. 91-695, title V, §502, 84 stat. 2080; June 23, 1976, P.L. 94-317, title II, §204(d), 90 stat. 706.)”

      . Section 4846. State laws superseded, and null and void
      “It is hereby expressly declared that it is the intent of the Congress to supersede any and all laws of the states and units of local government insofar as they may now or hereafter provide for a requirement, prohibition, or standard relating to the lead content in paints or other similar surface-coating materials which differs from the provisions of this Act or regulations issued pursuant to this Act (42 USCS §4801 et seq.). Any law, regulation, or ordinance purporting to establish such different requirement, prohibition, or standard shall be null and void.
      “History:
      “(Jan. 13, 1971, P.L. 91-695, title V, §504 (506), as added Nov. 9, 1973, P.L. 93-151, §7(e), 87 stat 567; Nov. 10,1978, P.L. 95-626, title II, §208(b), 92 stat. 3588).”

      . See also, Banks v. Dallas Housing Authority, 271 F.3d 605 (5th Cir. 2001), in which the court held that there was no section 1983 cause of action pursuant to the Housing Act of 1937, 42 U.S.C.S. §1437f(e).

      . The court held that there is a cause of action but dismissed the plaintiffs’ complaint for failing to allege that there was a deliberate deprivation of federal rights pursuant to a municipal custom or policy.

      . This was a class action on behalf of persons living in public housing in Philadelphia who had been exposed to lead-based paints. Although the court held that the case could proceed pursuant to a section 1983 claim against the Philadelphia Housing Authority for both injunctive relief and monetary damages, at a later point in the litigation, the claim for monetaxy damages was dropped. The class action was provisionally certified for declaratory and injunctive relief at 151 F.R.D. 555 (E.D. Pa. 1993).

      . The couif held that there was no private right of enforcement, where the Alabama Department of Public Safety administered the state driver’s license examination only in English, in violation of title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq.

      . The court struck down an award of compensatory and punitive damages to the plaintiff, holding that there was no personal right to enforcement under the Family Educational Rights and Privacy Act of 1974,20 U.S.C. § 1232g, which prohibits the federal funding of schools that have a practice or policy of permitting the release of students’ educational records without their parents’ consent.

      . E.g., Three Rivers Center for Independent Living Inc. v. Housing Authority of the City of Pittsburgh, 382 F.3d 412 (3d Cir. 2004) (the Rehabilitation Act of 1973, 29 U.S.C. §794(a) and regulations promulgated thereunder, which require that there be accessible public housing for handicapped persons, do not confer a private cause of action directly or pursuant to section 1983); Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003) (the court rejected a claim that title VI of the Civil Rights Act of 1964 and section 1983 conferred on a community advocacy group the right to challenge the building of a light rail line, on the theory that it would discriminate against residents on the basis of race); Johnson v. Housing Authority of Jefferson Parrish, 2004 U.S. Dist. Lexis 21713 (E.D. La. 2004) (the court ruled that it could not enforce a section 8 public housing program, the House Choice Voucher program, 42 U.S.C. §1437(o), nor its implementing regulations, through a section 1983 action); Harris v. City of Chicago, 2002 U.S. Dist. Lexis 16579 N.D. Ill. 2002) (the defendants’ motion to dismiss was granted where parents and their children attempted to sue city, school, school district and personnel for harassment, invasion of privacy, libel and slander, under section 1983).

      . We note that 24 C.F.R. §965.701 was substantially revised in 1999 and the other sections cited by plaintiffs were then removed. 24 C.F.R. §965.701 now provides:
      “Section 965.701 Lead-based paint poisoning prevention.
      “The requirements of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing regulations at part 35, subparts A, B, L, and R of this title apply to this program.
      “History:
      “[57 FR 28358, June 24, 1992; 64 FR 50140, 50229, Sept. 15, 1999].”
      Part 35 is a compilation of rules relating to lead-based paint poisoning prevention in both private and public residential housing. Sub-part A contains private enforcement provisions and provides for treble damages and fees (24 C.F.R. §35.96(c), (d)). But that section in sub-part A implements a specific provision contained in the Residential Lead-Based Paint and Hazard Reduction Act of 1992, 42 U.S.C. §4852d(b)(3). Subparts B, L and R, which implement, inter alia, the LPPPA, contain no private enforcement provisions.