PITTSBURGH – Counsel for a local rehabilitation center for delinquent youth has re-argued that the Forest County Court of Common Pleas would be the proper venue for litigation alleging that a Western Pennsylvania man was repeatedly assaulted both physically and sexually by staff members at the facility.
Samuel Alberio first filed suit in the Allegheny County Court of Common Pleas on Oct. 29 versus Abraxas Youth & Family Services (doing business as “Abraxas I” and “Abraxas II”) and Abraxas Leadership Development Program in Pennsylvania, both of Pittsburgh.
Abraxas began its operations as a treatment and rehabilitation center in 1973 in Marienville, where it operated its first facility. The group, headquartered in Pittsburgh, receives delinquent youths as “clients” through a legal referral program.
“Plaintiff was placed, while approximately a 17-year-old in an Abraxas facility in Pennsylvania. Almost immediately upon his arrival, plaintiff was assaulted by staff, in the form of excessive physical restraints. Plaintiff was physically restrained by staff members on too many occasions to recall the exact number. Plaintiff suffered severe pain from each physical restraint, as the staff members were significantly more muscular and heavier in weight,” the suit said.
“On a separate occasion, a staff member on plaintiff’s residential unit physically restrained him, and when defendant’s employee placed him into a control hold and caused plaintiff to have extreme difficulty breathing. While being choked, the staff member was able to continue restricting plaintiff’s breathing while positioned behind him, when defendant’s employee began to gyrate and grind his hips, with an erect penis, into plaintiff’s buttocks, while groping him using a hand to touch plaintiff’s penis and testicles. The staff member continued to rub, touch and stroke plaintiff’s genitals from behind as plaintiff had difficulty breathing. Plaintiff was light-headed from still being choked, while also being groped and fondled by the staff member. When the staff member stopped the assault, plaintiff was in extreme pain both from being choked and having his testicles fondled.”
Alberio added that he was not provided any medical attention after the assault, and was then assaulted a second time, being forcibly removed from the showers and struck across his entire body, including his genitals.
“Plaintiff avers the defendant knew about numerous incidents of staff using excessive force and sexually assaulting plaintiff and other students yet failed to act, supervise or otherwise mitigate against these actions. At all times relevant hereto, plaintiff was a victim of physical, mental and sexual abuse during his time at Abraxas,” the suit stated.
The Abraxas defendants filed preliminary objections in the case on Nov. 23, beginning that the plaintiff failed to identify which Abraxas facility he had been lodged in and when, and attacking the complaint’s alleged vagueness.
“Notably, plaintiff does not name a single alleged perpetrator, and fails to even give a general description of the individual including height, weight, race, color, hair style, etc.,” the objections stated.
“Finally, the complaint purports to bring claims against the defendant for respondeat superior, negligence, negligent hiring, supervision and retention, and fraudulent concealment; however, it only specifically sets forth individual counts for negligence (Count I), negligent supervision, hiring and retention (Count II), and respondeat superior (Count III).”
Additionally, the defense wanted the case transferred to the Forest County Court of Common Pleas.
“This action is improperly filed in Allegheny County and should be transferred to Forest County pursuant to Pennsylvania Rule of Civil Procedure 2179(a). The complaint fails to include a verification by plaintiff. Plaintiff’s allegations of sexual abuse are insufficiently specific and violative of Pennsylvania’s well-established fact-pleading standard,” per the objections.
“Plaintiff’s Count II is subject to dismissal for failure to establish any notice on the part of defendant, of the facts alleged. Plaintiff’s complaint fails to conform to law or rule of court and incorporates numerous scandalous and impertinent matters…which must be stricken in accordance with 1028(a)(2). Accordingly, defendant requests that the Court direct that plaintiff transfer venue of this action to Forest County, Pennsylvania and bear the cost of same. Additionally, defendant respectfully requests that Forest County grant its preliminary objections pursuant to 1028(a)(4) and grant relief in the nature of an order.”
On Feb. 2, Allegheny County Court of Common Pleas Judge John T. McVay Jr. seemed poised to grant the defense’s preliminary objections – that the case be transferred to the Forest County Court of Common Pleas, that all claims towards third parties in multiple paragraphs of the complaint are stricken with prejudice and any claim of fraudulent concealment and all references to “standard of care” and “reasonable care” were stricken.
But as a result of these objections, the plaintiff filed a new version of his complaint on Feb. 9.
UPDATE
The defendants responded to the plaintiff’s reply as to its preliminary objections on April 4, once again arguing that the Forest County Court of Common Pleas would be the proper venue for this case – and that the plaintiff’s assertions “amount to nothing more than bald and conclusory statement without any basis in fact,” and having the case heard in Allegheny County would constitute “patent oppressiveness.”
According to the defendants, the Abraxas I facility is located 112 miles from the Allegheny County Courthouse, and potential witnesses in the case hail from towns ranging from 84-143 miles away from the courthouse.
“On its face, it is clear that Forest County and not Allegheny County would provide easier access to witnesses and other sources of proof which are directly related, if not crucial to, plaintiff’s underlying claims defendants’ defenses in this case Similarly, the general disruption to Abraxas I’s operations, programs and services it provides to juveniles is obvious if these individuals are forced to travel back and forth from Forest County to Allegheny County,” the reply brief stated, in part.
The defense continued that the plaintiff maintains no contacts to Allegheny County and thus, the case should be heard elsewhere.
“The underlying alleged abuse at in this case occurred in 2008-2009. Plaintiff alleges that the only individual he reported the alleged abuse to was the facility nurse, despite his obvious access to authoritative figures outside the realm of Abraxas I, to include his probation officer, the juvenile court, local or state prosecutors and his family. Plaintiff’s attempt to buttress his opposition to transfer of venue merely because he did not name as a defendant(s) alleged perpetrator(s) of abuse is unavailing. The alleged perpetrators of abuse, their colleagues, supervisors or other facility employees who may have been tangentially associated with plaintiff’s residency at Abraxas I have a clear and unassailable interest in this litigation, given the nature of the allegations. In fact, this lawsuit will constitute the first notice these individuals receive of the serious allegations leveled against them, and obtaining compulsory process for these individuals’ attendance at depositions and trial will undoubtedly be easier in Forest County as opposed to Allegheny County.”
For counts of negligence, negligent supervision, hiring and retention and respondeat superior liability, the plaintiff is seeking compensatory, exemplary, punitive and other damages in excess of the local arbitration limits, plus costs, interest and a trial by jury.
The plaintiff is represented by David Wesley Cornish of Cornerstone Legal Group, in Philadelphia.
The defendants are represented by Morgan M.J. Randle and G. Michael Garcia II of Marshall Dennehey Warner Coleman & Goggin, in both Pittsburgh and Erie.
Allegheny County Court of Common Pleas case GD-21-013400
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com