PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has affirmed dismissal of a wrongful death lawsuit brought against Lebanon County, the murderers of a 12-year-old boy and other entities the plaintiff believed did not do enough to prevent the death of her son.
Third Circuit Judge Stephanos Bibas authored an opinion on Aug. 5, which upheld dismissal of Sara Coon’s lawsuit versus Lebanon County, James Holtry, Erin M. Moyer, Robert J. Phillips, Josephine C. Ames, Executrix of the Estate of William E. Ames (deceased), Jo Ellen Litz, Scott Schollenberger, Jr. and Kimberly Maurer.
Defendants Scott Schollenberger Jr. and Maurer (engaged to one another) faced homicide, conspiracy and child endangerment charges for the death of 12-year-old Maxwell Schollenberger, who was found dead in at the couple’s home in Annville in May 2020.
Schollenberger Jr. had legal custody of his son at the time of his death, and Lebanon County authorities contend that the boy suffered years of systematic abuse at the hands of his father and prospective stepmother.
Coon alleged in the lawsuit that her son was “subjected to dehydration and starvation” at the hands of his father and Maurer, a finding echoed by the Lebanon County Coroner, who deduced that dehydration, malnutrition and head trauma was the cause of Maxwell Schollenberger’s death.
The coroner added Maxwell weighed just 47 and a half pounds, only half the weight of a healthy 12-year-old boy.
The suit said Maxwell’s paternal grandmother, Lorie Schollenberger found evidence that Maurer was beating Maxwell during his toilet training in 2010, detailing that Maurer allegedly told Lorie that she was “correcting” Maxwell for defecating in his pants by striking him with a large metal serving spoon and isolating him.
In 2011, the suit added Lorie went to the home and found Maxwell standing facing a corner without any pants, and both his bare legs and buttocks were scored with cuts and abrasions.
When Lorie and the boy’s grandfather, Scott Schollenberger Sr., confronted their son and Maurer about the boy’s injuries, they were allegedly told “that this would be the last time they would see their grandson.”
According to Coon, Schollenberger and Maurer then moved to Lebanon, without telling the boy’s grandparents. Lorie called the county’s children’s services three times over the course of two days in 2015 to report possible child abuse, but the suit maintained that each time, she was denied learning further information.
Lebanon County law enforcement authorities claim that nothing was apparent to suggest that any abuse was happening and therefore, they had no reason to investigate. Police only began to investigate after Maurer shared news of Maxwell’s death with a neighbor.
Yet, Lebanon County’s District Attorney Piers Hess Graf shared that Maxwell was kept in a dark room with the door locked from the outside, did not receive medical care or an education.
Coon claimed that Lebanon County Children & Youth Services may have been able to save her son if it had investigated the child abuse reports made by Maxwell’s grandparents.
Both Schollenberger Jr. and Maurer were later found guilty and sentenced to life imprisonment without the possibility of parole.
Coon subsequently sued Lebanon County, Schollenberger Jr., Maurer and others in a Lebanon County court in 2021, litigation which was removed to the U.S. District Court for the Middle District of Pennsylvania.
Though Coon voluntarily dismissed her initial lawsuit in November 2021, she later refiled her case and added James Holtry, Erin M. Moyer, Robert J. Phillips and Josephine C. Ames as defendants.
Coon argued that Lebanon County had known about the abuse her son faced and had a state-law duty to protect the boy from it. But because Pennsylvania’s legislature did not create a property interest in having the county agency protect him from child abuse, the District Court dismissed this case – leading Coon to appeal to the Third Circuit.
“Due process protects people’s interests in life, liberty or property. To state a claim for violating procedural due process, Coon must allege that Lebanon County’s procedures did not adequately safeguard a protected property interest. For a property interest to be protected, a plaintiff must show ‘a legitimate claim of entitlement to it.’ Though state law creates that entitlement, whether it counts as a protected property interest depends on federal constitutional law,” Bibas said.
“An entitlement is not a protected property interest ‘if government officials may grant or deny it in their discretion.’ For instance, in Town of Castle Rock v. Gonzales, the Supreme Court held that Colorado law did not confer a property interest in enforcing a restraining order. Though Colorado’s statute required police to ‘use every reasonable means to enforce a restraining order,’ its mandatory phrases ‘shall use’ or even ‘shall arrest’ were not enough to create a property interest. We have held likewise (referring to Burella v. City of Philadelphia, holding that ‘shall arrest’ language in the Pennsylvania Protection from Abuse Act, 23 Pa. Cons. Stat. Section 6113(a), was not enough).”
According to Bibas, these precedents foreclose Coon’s claim – though Coon relied on the agency’s statutory duty, which is that after someone reports child abuse, “the county agency shall ensure the safety of the child”, Bibas clarified that duty is “just like the mandatory language in Castle Rock and Burella, which did not suffice.”
“As with the statute in Burella, this law is ‘silent as to whether a victim can request, much less demand,’ enforcement of the mandate. Indeed, this mandate is even weaker than the one in Burella – if a county agency violates it, the victim cannot seek to penalize the agency with civil or criminal contempt. And the legislature said nothing about giving victims a property interest in enforcement. We cannot read its silence as speech,” Bibas said.
“Though Maxwell’s death was tragic, that tragedy does not change the law. County agencies have a duty under Pennsylvania law to protect children from abuse. But because nothing in that law gives victims a property right to enforce that duty, Coon cannot state a procedural-due-process claim. We will affirm the District Court’s order dismissing the federal claims and remanding the state claims to state court.”
The plaintiff is represented by Joseph Auddino and Steven F. Marino of Marino Associates, in Philadelphia.
The defendants are represented by Frank J. Lavery Jr., Murray J. Weed and Andrew W. Norfleet of Lavery Law, in Harrisburg.
U.S. Court of Appeals for the Third Circuit case 22-3443
U.S. District Court for the Middle District of Pennsylvania case 1:22-cv-00322
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com