Kenneth v. Derry Township School District

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DR. KENNETH TAYLOR, : CIVIL ACTION NO. 1:20-CV-1363

:

Plaintiff : (Judge Conner)

:

v. :

:

DERRY TOWNSHIP SCHOOL :

DISTRICT; DONNA CRONIN, in her :

individual and official capacity; :

LINDSAY DREW, in her individual and :

official capacity; MARIA MEMMI, in :

her individual and official capacity; :

TERRY SINGER, in his individual and :

official capacity; TRICIA STEINER, in :

her individual and official capacity; :

DAVID OBENSTINE, in his individual :

capacity; JOHN/JANE DOE 1-10, :

fictitious individuals; and ABC :

ENTITIES 1-10, fictitious entities, :

:

Defendants :

MEMORANDUM

Plaintiff Dr. Kenneth Taylor filed this action against his former employer, the

Derry Township School District (“the District”); six members of the Derry

Township School District Board (“School Board”) of Directors, Donna Cronin,

Lindsay Drew, Maria Memmi, Kathy Sicher, Terry Singer, and Tricia Steiner

(collectively “Defendant Directors”); and one private citizen, David Obenstine.

Taylor alleges the defendants deprived him of his constitutional procedural due

process rights and tortiously damaged his reputation. The District, Defendant

Directors, and Obenstine each move to partially dismiss Taylor’s amended

complaint pursuant Federal Rule of Civil Procedure 12(b)(6). We will grant in part

and deny in part the District’s motion, grant in part and deny in part the Defendant

Directors’ motion, and deny Obenstine’s motion.

I. Factual Background & Procedural History

Taylor served as the head girls’ varsity lacrosse coach for Hershey High

School in the District from January 2013 to June 24, 2019. (See Doc. 35 ¶¶ 1, 21).

The instant lawsuit arises from the events surrounding the School Board’s decision

to part ways with Taylor after the 2018-2019 lacrosse season.

Taylor’s first six years as head coach were a time of significant success for the

girls’ varsity lacrosse team. The team won the conference and district

championships in 2018 and was runner-up in the 2014, 2015, and 2017 conference

championships. (See id. ¶ 20). The team also placed numerous players on various

conference, regional, and national all-star lists. (See id.) The conference named

Taylor coach of the year in 2017 and 2018. (See id.)

In January of 2019, an unnamed member of the School Board informed

Hershey High School’s athletic director a non-specific accusation had surfaced

regarding Taylor being “sexually inappropriate” with a female lacrosse player. (See

id. ¶ 54). The accusation did not originate with the unnamed school director but

was supposedly brought to their attention by a second school director who heard

the accusation from the player’s parent. (See id.) Taylor alleges the accusation was

false and fabricated by another school director—Cronin—as a means of displacing

Taylor as head coach. (See id. ¶ 28). Cronin purportedly coveted the head coach

position for herself, (see id. ¶¶ 35-37), was a persistent critic of Taylor’s coaching,

(see id. ¶¶ 42, 51-52), and had a history of using her position on the School Board to

interfere with the girls’ lacrosse program and to undermine Taylor’s authority, (see

id. ¶¶ 30-49, 85).

In the wake of the accusation, the athletic director, after conducting an

inconclusive investigation and consulting with the superintendent, asked Taylor for

his resignation. (See id. ¶¶ 58-62). Taylor denied the accusation but chose to resign

anyway on February 18, 2019, to allow the team to move forward. (See id. ¶ 62).

However, after Taylor’s resignation, the lacrosse players and their parents

inundated the athletic director with statements of support for Taylor and

complaints about his “forced” resignation. (See id. ¶¶ 63-65). The athletic director

held a meeting with Taylor on February 22, 2019, during which the athletic director

accepted Taylor’s recission of the resignation and reinstated Taylor. (See id. ¶ 66).

At the meeting, the athletic director explained Cronin had misled him and directed

him to remove Taylor. (See id.)

Cronin’s alleged campaign to remove Taylor did not end with Taylor’s

reinstatement. Taylor claims Cronin conspired with her fellow school director,

Drew, and a parent of a lacrosse player, Obenstine, to malign Taylor for the purpose

of terminating his tenure as the girls’ varsity lacrosse coach. (See id. ¶¶ 28-29, 57).

To this end, Cronin began soliciting negative information about Taylor. (See id.

¶ 68). The complaint alleges that when individuals denied they possessed any such

information, Cronin falsely accused Taylor of inappropriate conduct, demanding

the individuals to confirm the accusations. (See id. ¶¶ 68, 70). Drew purportedly

solicited false and denigrating information, and he falsely accused Taylor of

inappropriate conduct with a female player in a conversation with a community

resident in a way that carried with it the implication of criminality. (See id. ¶¶ 67,

70). Obenstine allegedly added to the campaign by angrily expressing “unfounded”

concerns about the safety of the players at a meeting with parents and sent a series

of emails to the athletic director and Taylor accusing the District of covering up

Taylor’s inappropriate conduct. (See id. ¶¶ 74-75).

Despite the ongoing controversy, the girls’ varsity lacrosse team ended the

2018-2019 season on May 15, 2019, with a 17-3 record and won their second

consecutive conference championship. (See id. ¶ 81). The athletic director gave

Taylor his end-of-the-year evaluation on June 19, 2019. (See id. ¶ 82). The

evaluation was extremely positive. (See id.)

On June 24, 2019, the School Board held a meeting to vote, inter alia, on the

retention of coaches for the upcoming year. (See id. ¶ 83). At the meeting, Cronin

initiated a motion to disapprove the retention of Taylor.1 (See id. ¶ 84). The motion

passed six to three with Defendant Directors voting in favor of the motion. (See id.

¶¶ 27, 85). The only justifications the School Board gave at the meeting were non-

specific accusations of emotional abuse and inappropriate conduct. (See id. ¶ 87).

The School Board did not give Taylor notice of the precise facts underlying the

1 Taylor describes the ending of his tenure as the girls’ varsity lacrosse coach

as a “termination” or “removal.” (See Doc. 35 ¶¶ 1, 26, 29, 66, 139, 144-145, 153, 161,

168-169; Doc. 46 at 19). Based on the facts of the complaint, we find both terms to

be misnomers. Taylor was appointed for only the 2018-2019 school year. (See Doc.

35 ¶ 123). The June 24, 2019 vote came after the end of the 2018-2019 lacrosse

season and after the athletic director gave Taylor his “end of the year evaluation.”

(See id. ¶¶ 81-82). On the pleadings, the more accurate description is that the

School Board voted not to retain Taylor.

accusations against him. (See id. ¶¶ 86, 88). Nor did the District or School Board

afford Taylor a hearing on the accusations. (See id.) Taylor submitted a right-to-

know request to the District shortly after the vote asking for specifics of the

accusations. (See id. ¶ 89). The District declined the request by email on August 8,

2019. (See id. ¶ 91).

Taylor remained popular with the players and their parents, even after the

School Board’s vote. (See id. ¶ 92). When the District began searching for a new

girls’ varsity lacrosse coach for the 2020 season at the end of the summer, Taylor

reapplied for his old position at the request of the athletic director. (See id. ¶¶ 93-

95). The athletic director interviewed Taylor for the position on September 24, 2019

and recommended the School Board rehire him. (See id. ¶ 96). The School Board

rejected that recommendation on October 7, 2019. (See id. ¶ 97). The vote was once

again six to three, with Defendant Directors all voting against the rehiring of Taylor.

(See id. ¶¶ 97-98).

Taylor avers Cronin, Drew, and Obenstine made a series of false accusations

against him to the other school directors for the purpose of ensuring that he was not

rehired. (See id. ¶¶ 100-104, 133). According to the amended complaint, Cronin

made unspecified inflammatory accusations against Taylor, (see id. ¶ 103); Drew

falsely accused Taylor of bullying players, emotionally abusing players to the point

of self-harm, engaging in sexually inappropriate conduct, and possibly shoving a

player, (see id. ¶ 101); and Obenstine repeated Drew’s accusations and accused

Taylor of being abusive, (see id. ¶¶ 102, 133). Similarly, Drew and Cronin also

continued to make negative statements about Taylor and recruited individuals to

buttress their false accusations. (See id. ¶ 104).

Taylor filed the present lawsuit against the District; the Defendant Directors,

each in their official and individual capacities; and Obenstine, in his individual

capacity, on August 3, 2020.2 Taylor filed an amended complaint on December 8,

2020. The District, Defendant Directors, and Obenstine all move to dismiss Taylor’s

amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim for which relief may be granted. The motions are fully briefed and

ripe for disposition.

II. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.

FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the

court must “accept all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County

of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

Federal notice and pleading rules require the complaint to provide “the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

2 Taylor also names ten fictitious persons, John/Jane Does 1-10, and ten

fictitious organizations, ABC Entities 1-10 as defendants. Taylor has not yet

identified or served these defendants.

Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts

a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31

(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a

plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a

claim must be separated; well-pleaded facts are accepted as true, while mere legal

conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual

allegations, it must determine whether they are sufficient to show a “plausible claim

for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550

U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678.

III. Discussion

Taylor asserts six claims against the moving defendants. He asserts two

claims under 42 U.S.C. § 1983 against the District and Defendant Directors for

depriving him of his procedural due process rights (Counts I and II). He also

asserts various state-law tort claims against Cronin, Drew, and Obenstine (Counts

III-VI). We begin with Taylor’s Section 1983 claims.

A. Counts I and II: Section 1983 – Procedural Due Process

Section 1983 of Title 42 of the United States Code creates a private cause

of action to redress constitutional wrongs committed by state officials. 42

U.S.C. § 1983. The statute is not a source of substantive rights but serves as a

mechanism for vindicating rights otherwise protected by federal law. See

Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 96 F.3d

119, 1204 (3d Cir. 1996). To establish Section 1983 liability, a plaintiff must

prove a deprivation of a “right secured by the Constitution and the laws of the

United States . . . by a person acting under color of state law.” Kneipp, 95 F.3d

at 1204 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).

Neither the District nor the Defendant Directors dispute their status as state

actors. (See Doc. 40 at 6; Doc. 41 at 10-14). Our sole inquiry is whether Taylor

has pled that these defendants violated his constitutional rights.

In the case sub judice, Taylor asserts the District and the Defendant

Directors deprived him of his procedural due process rights under the

Fourteenth Amendment to the United States Constitution. To plead this

claim, Taylor must allege (1) he was deprived of an individual interest that is

encompassed within the Fourteenth Amendment’s protection of life, liberty, or

property, and (2) the procedures afforded him did not provide due process of

law. See Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006).

Taylor asserts the District and the Defendant Directors deprived him of both a

liberty interest (Count I) and a property interest (Count II).

1. Count I: Procedural Due Process – Liberty Interest

In Count I, Taylor claims the District and the Defendant Directors, both

in their official and individual capacities, deprived him of a liberty interest in

the form of his reputation. (See Doc. 35 ¶¶ 107-118). We will address the

defendants’ arguments for dismissal seriatim.

a. Official Capacity Claims

Directors Cronin, Drew, Memmi, Sicher, Singer, and Steiner seek

dismissal of Taylor’s Section 1983 claim against them in their official capacities

as they are duplicative of Taylor’s claim against the District. (See Doc. 41 at 9).

A court may dismiss official-capacity claims against individual defendants

when identical claims are brought against the public entity employing them.

See Cuvo v. De Biasi, 169 F. App’x 688, 693 (3d Cir. 2006) (nonprecedential).

The rationale behind this approach is that “a lawsuit against public officers in

their official capacities is functionally a suit against the public entity.” Id.

(citing McMillian v. Monroe County, 520 U.S. 781 (1997)). Our court has

previously dismissed redundant official-capacity claims in circumstances

indistinguishable from those presented here. See, e.g., Doe by Brown v.

Harrisburg Sch. Dist., No. 1:19-CV-1027, 2020 WL 4584372, at *3 (M.D. Pa. Aug.

10, 2020) (Conner, J.) (dismissing official-capacity claim against school

administrators when plaintiffs asserted identical claims against school district);

Judge v. Shikellamy Sch. Dist., 135 F. Supp. 3d 284, 301 (M.D. Pa. 2015) (Brann,

J.) (same); M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412,

419 (M.D. Pa. 2014) (Kane, J.) (same).

Taylor’s Section 1983 claims against the Defendant Directors in their

official capacities duplicate his claims against the District, and Taylor offers no

persuasive justification for retaining both. The court will grant the Defendant

Directors’ motion and dismiss these claims. Leave to amend will be denied as

futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

b. Merits

Taylor alleges the District and the Defendant Directors deprived him of

his liberty interest in his reputation when they decided not to rehire him under

circumstances creating a defamatory impression. (See Doc. 35 ¶¶ 107-118).

Deprivation of one’s reputation can sustain a Section 1983 claim but only

under narrow circumstances. See Hill, 455 F.3d at 236. To bring a claim, the

plaintiff must satisfy the “stigma-plus test” by alleging “a stigma to his

reputation plus deprivation of some additional right or interest.” Id. (emphasis

in original). The stigma-plus test requires the plaintiff allege a state employer

created a false and defamatory impression (the “stigma”) about the plaintiff in

connection with the plaintiff’s termination (the “plus”). Id. (citing Codd v.

Velger, 429 U.S. 624, 628 (1977)). When a public employee satisfies the stigma-

plus test, the employee is entitled to a name-clearing hearing. Id.

i. The District

The District argues Taylor’s first Section 1983 claim should be dismissed

because Taylor lacks a sufficient property interest in his continued

employment to satisfy the plus component of the stigma-plus test. (See Doc. 40

at 6-7). The District misunderstands the breadth of circumstances included

within the definition of “termination” under the stigma-plus test. The test

does not require a plaintiff to show a recognized property interest in their

ongoing employment. See Hill, 455 F.3d at 238-39; see also Bd. of Regents of

State Colleges v. Roth, 408 U.S. 564, 573 (1972) (suggesting nonrenewal of

contract, if coupled with stigmatizing statements, would support procedural

due process claim). The point of allowing procedural due process claims based

on stigmatization is to protect the public employee’s reputation—sullied by the

circumstances of their termination—by affording the plaintiff the opportunity

to clear their name via a public hearing, not to protect any property interest

the plaintiff might have possessed. See Hill, 455 F.3d at 238 (quoting Doe v.

U.S. Dep’t of Just., 753 F.2d 1092, 1108 n.15 (D.C. Cir. 1985)). As noted by our

court of appeals, requiring a plaintiff to plead a “state law-created property

interest in continued employment to satisfy the ‘plus’ in a ‘stigma-plus’ claim”

would “equate the interests protected by the property clause of the [Fourteenth

A]mendment with those protected by the liberty clause.”3 Id. at 236 (emphasis

in original). We will deny the District’s motion to dismiss Count I.

3 The District also argues Taylor’s position, a part-time job paying only a

nominal salary, is effectively de minimis and therefore cannot satisfy the plus

component of the stigma-plus test. (See Doc. 40 at 8-9). To support this contention,

the District cites a decision by the Seventh Circuit Court of Appeals which held a

public employee fired from “a part-time, honorific job” could not create sufficient

stigma to sustain a Section 1983 procedural due process claim because the plaintiff

retained their primary means of earning a livelihood. See Jungels v. Pierce, 825

F.2d 1127, 1131 (7th Cir. 1987). The Third Circuit has cited Jungels favorably but

only in support of the proposition that termination of a volunteer position could not

satisfy the plus component of the stigma-plus test. See Versarge v. Township of

Clinton N.J., 984 F.2d 1359, 1371 (3d Cir. 1993). Nonetheless, even if we were to

adopt the Jungels holding, Taylor’s claim would still survive a motion to dismiss

because the allegedly false statements made about Taylor are so salacious—

especially the accusation Taylor may have engaged in inappropriate sexual conduct

with a female player—that the stigma would damage his future employment

prospects in other fields. See Robb v. City of Philadelphia, 733 F.2d 286, 294 (3d Cir.

1984).

ii. Directors Memmi, Sicher, Singer, and

Steiner

Directors Memmi, Sicher, Singer, and Steiner argue Taylor’s Section

1983 claim against them in their individual capacities should be dismissed

because Taylor fails to plead sufficient facts to satisfy the stigma component.

(See Doc. 41 at 10-13). Satisfying the stigma component requires the plaintiff

allege the purportedly stigmatizing statement was (1) published, (2)

substantially and materially false, and (3) infringed upon the “reputation,

honor, or integrity” of the employee. See Hill, 455 F.3d at 236; Brown v.

Montgomery County, 470 F. App’x 87, 91 (3d Cir. 2012) (nonprecedential)

(citing Ersek v. Township of Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996)).

Taylor does not allege that Directors Memmi, Sicher, Singer, and

Steiner made any false statements regarding his conduct or promulgated a

false impression about himTaylor. (See Doc. 35 ¶¶ 83-88, 97-98, 111). They

merely cast votes against retaining Taylor on June 24, 2019, (see id. ¶¶ 27, 85),

and rehiring Taylor on October 7, 2019, (see id. ¶¶ 97-98). Taylor cites no

decisional law equating a mere vote to a false statement or acknowledging a

vote as creating a false impression. Nor does Taylor provide any authority

supporting his contention that ignoring Cronin and Drew’s “perfidy” can

possibly satisfy the stigma component of the stigma-plus test. (See Doc. 46 at

12 n.2).

We will grant Memmi, Sicher, Singer, and Steiner’s motion to dismiss

Count I. 4 We will grant Taylor leave to amend because Taylor could plausibly

plead facts showing Memmi, Sicher, Singer, and Steiner created a false

impression about him. See Grayson, 293 F.3d at 108.

iii. Director Drew

Unlike Memmi, Sicher, Singer, or Steiner, the amended complaint

alleges that Drew made false statements maligning Taylor. Specifically, it

alleges that Drew made a statement in February of 2019 to a community

resident accusing Taylor of engaging in inappropriate conduct with female

players, prompting the resident to ask why police were not immediately

notified of Taylor’s conduct. (See Doc. 35 ¶ 67). The amended complaint also

alleges that Drew made negative statements throughout the summer of 2019

and again on October 7, 2019, when the School Board met and rejected the

athletic director’s proposal to rehire Taylor. (See id. ¶¶ 100-101). In her

various statements, Drew allegedly accused Taylor of bullying players,

emotionally abusing players to the point of self-harm, engaging in

4 Directors Memmi, Sicher, Singer, and Steiner also argue, in the alternative,

Taylor’s Section 1983 claim against them is barred by qualified immunity. (See

Doc. 41 at 13-14). As we have already granted dismissal of Count I against these

defendants, we need not reach this question.

inappropriate—presumably sexually harassing or sexually abusive—conduct

with a player, and possibly shoving another player.5 (See id.)

Drew’s February 2019 statement, which took place almost five months

before the School Board voted not to retain Taylor, is too attenuated to satisfy

the stigma component of the stigma-plus test. See Paul v. Davis, 424 U.S. 693,

710 (1976) (holding “the defamation [must] occur in the course of the

termination of employment”). Drew’s other statements, including those made

during the June and October School Board meetings, compel a different result.

These statements go well beyond run-of-the-mill criticism. Drew allegedly

accused Taylor of abusing players to the point of self-harm, being sexually

inappropriate with a player, and possibly assaulting a player. (See Doc. 35

¶ 101). Such statements are deeply stigmatizing and, if taken as true by the

public, difficult or even impossible to escape. See Mercer, 308 F.3d at 845

(accusations of “dishonesty, immorality, criminality, racism, and the like” are

sufficient to satisfy the stigma-plus test). The stigma component of the stigma-

plus test is satisfied. Hence, we will not dismiss Count I against Drew.

2. Count II: Procedural Due Process – Property Interest

Taylor also brings a Section 1983 claim against the District and the

Defendant Directors for depriving him of a property interest without due

5 Taylor does not specify which statements were made at which point in time.

(See Doc. 35 ¶¶ 100-101). We construe the complaint in the light most favorable to

Taylor, and we assume that these statements were made or repeated at relevant

times identified in the amended complaint. See Phillips, 515 F.3d at 233.

process of law.6 (See Doc. 35 ¶¶ 119-141). The District and the Defendant

Directors move to dismiss, arguing Taylor lacks a property interest in his

continued employment under Pennsylvania law. (See Doc. 40 at 9-11; Doc. 41

at 15-17).

As discussed supra, the stigma-plus test requires a plaintiff to plead both

stigma to their reputation and deprivation of some additional right or interest.

See Hill, 455 F.3d at 236. State law defines property interests for the purposes

of Fourteenth Amendment due process. See Larsen v. Senate of

Commonwealth of Pa., 154 F.3d 82, 92 (3d Cir. 1998) (citing Roth, 408 U.S. at

569, 577). Taylor asserts Section 514 of Pennsylvania’s Public School Code

6 Taylor does not specify in his amended complaint whether he is bringing his

procedural due process claim in Count II under Section 1983 or the Pennsylvania

Constitution. (See Doc. 35 ¶¶ 119-141). In his opposition brief to the Defendant

Directors’ motion to dismiss, he refers to the claim as a Section 1983 claim. (See

Doc. 46 at 17). But in his opposition brief to the District’s motion to dismiss, he

references it as a state constitutional claim. (See Doc. 47 at 18). Taylor’s plea for

relief in Count II focuses exclusively on damages. (See Doc. 35 at 27).

Commonwealth of Pennsylvania law holds that neither the state constitution nor

any state statute authorizes the award of monetary damages for a violation of the

Pennsylvania Constitution. See Moss v. Pennsylvania, 838 F. App’x 702, 708 (3d Cir.

2020) (nonprecedential) (citing Jones v. City of Philadelphia, 890 A.2d 1188, 1208

(Pa. Commw. Ct. 2006)); Balletta v. Spadoni, 47 A.3d 183, 192-93 (Pa. Commw. Ct.

2012). Hence, we will construe Taylor’s claim as a Section 1983 claim as it provides

the only opportunity for the relief he seeks.

conveys to him a property right in his expectation of continued employment.7

(See Doc. 35 ¶ 129). Section 514 requires Pennsylvania school districts to give

employees due notice, a statement of reasons, and the opportunity for a

hearing before the district can “remove” the employee on account of

“incompetency, intemperance, neglect of duty, violation of any of the school

laws of this Commonwealth, or other improper conduct.” 24 PA. STAT. AND

CONS. STAT. ANN. § 5-514; Coleman v. Bd. of Ed. of Sch. Dist. of Phila., 383 A.2d

1275, 1280 (Pa. 1978).

Section 514 creates a property right in a nonprofessional employee’s

expectation of continued employment and obligates school boards to comply

with the procedural safeguards therein when dismissing an employee for

cause. See Lewis v. Sch. Dist. of Phila., 690 A.2d 814, 817 (Pa. Commw. Ct.

1997). Even part-time coaches, like Taylor, can be protected by Section 514.

See Cambria v. Bd. of Sch. Directors of Exeter Twp. Sch. Dist., No. 240 C.D.

2013, 2014 WL 1758467, at *6 (Pa. Commw. Ct. Apr. 30, 2014) (nonprecedential).

Section 514 can also apply when an employee lacks an express contract but is

appointed to a position by a school board on an annual basis. See Kapustik,

7 Taylor also argues he has a property right to continued annual employment

under Kapustik v. School District of City of Arnold, 111 A.2d 169 (Pa. Super. Ct.

1955), but Kapustik grants him no such right. In Kapustik, the plaintiff possessed a

property right, despite not having a written contract. She was appointed by the

school board to her position for the entire school year but dismissed before the

expiration of her term. See id. at 170-173. The holding in Kapustik is not applicable

to Taylor because Taylor had completed his term at the time of the non-retention

vote. (See Doc. 35 ¶¶ 27, 81-82, 85, 123).

111 A.2d at 171-73. However, the property right created by Section 514 is

contingent on application of the procedural protections described in Section

514. See Dingel v. Commonwealth, State Emp. Ret. Sys., 435 A.2d 664, 668 (Pa.

Commw. Ct. 1981); see also Lewis, 690 A.2d at 817 (citing Dingel, 435 A.2d at

668). Under Pennsylvania law, an employee must be “removed” to trigger

these procedural protections. See Moriarta v. State Coll. Area Sch. Dist., 601

A.2d 872, 873-74, 874 n.6 (Pa. Commw. Ct. 1992). Unlike Taylor’s liberty-

interest claim, discussed supra, the “termination [of a school employee] at the

expiration of a contract” does not constitute removal under Section 514. Id.

Taylor’s appointment was for the 2018-2019 school year. (See Doc. 35

¶ 123). The School Board voted against retaining Taylor as the girls’ varsity

lacrosse coach only after the expiration of his appointment. (See id. ¶¶ 27, 81-

82, 85). Consequently, Section 514 is not implicated, and Taylor does not

possess a property right in his expectation of continued employment. See

Moriarta, 601 A.2d at 873-74. Without a state-law property right, Taylor’s

continued employment is not protected by the due process clause of the

Fourteenth Amendment.

Taylor asserts new facts in his opposition brief which may cure the

defect identified herein; specifically, alleging he was dismissed before his

appointment ended. (See Doc. 47 at 20); see also Commonwealth of Pa. ex rel.

Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic

that the complaint may not be amended by the briefs in opposition to a motion

to dismiss.” (citation omitted)). Accordingly, we will dismiss Count II in its

entirety but allow Taylor the opportunity to amend his complaint to

incorporate these new factual allegations. See Grayson, 293 F.3d at 108.

B. Counts III, IV, V, and VI – State-Law Claims

Taylor brings the following state law tort claims against Drew, Cronin,

and Obenstine: civil conspiracy (Count III), tortious interference (Count IV),

false light (Count V), and defamation (Count VI). Obenstine moves to dismiss

all four state law claims. Drew and Cronin move to dismiss all but Count III.

1. Counts III, IV, V, and VI Against Obenstine

Obenstine contends we should dismiss Count III, IV, V, and VI against

him because each claim is legally deficient as pled. Taylor’s civil conspiracy

claim in Count III is derivative of his underlying tort claims in Counts IV, V,

and VI. Therefore, we address the underlying tort claims first.

a. Count IV – Tortious Interference

Pennsylvania adopts the elements of a tortious interference claim

defined in the Restatement (Second) of Torts § 766. See Windsor Sec., Inc. v.

Hartford Life Ins. Co., 986 F.2d 655, 659 (3d Cir. 1993); Glenn v. Point Park

Coll., 272 A.2d 895, 897-99 (Pa. 1971); Thompson Coal Co. v. Pike Coal Co., 412

A.2d 466, 470-71 (Pa. 1979). Pennsylvania recognizes two categories of tortious

interference: tortious interference with existing contractual relationships and

tortious interference with prospective contractual relationships. See Acumed

LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 212 (3d Cir. 2009). Taylor

asserts Obenstine, in conjunction with Drew and Cronin, committed both torts

by orchestrating a smear campaign targeted at Taylor for the purpose of

ousting him from his coaching position and preventing him from being

rehired. (See Doc. 35 ¶¶ 152-156).

To state a claim for tortious interference with an existing contractual

relationship, a plaintiff must plead (1) the existence of a contractual

relationship; (2) purposeful action by the defendant intended to harm the

relationship which induced a third party to breach or otherwise not perform

the contract; (3) the absence of some privilege or justification protecting the

defendant’s conduct; and (4) actual damage to the plaintiff as a result of that

conduct. See Acumed, 561 F.3d at 212; Al Hamilton Contracting Co. v. Cowder,

644 A.2d 188, 191 (Pa. Super. 1994). Taylor does not allege the smear campaign

resulted in either Taylor or the District breaching the terms of his

appointment. (See Doc. 35 ¶¶ 152-156). Hence, Taylor has not pled facts

sufficient to sustain a claim for tortious interference with existing contractual

relationships. See Dommel Props. LLC v. Jonestown Bank & Tr. Co., 626 F.

App’x 361, 367 (3d Cir. 2015) (nonprecedential) (finding Pennsylvania case law

requires plaintiffs to allege breach). To state a claim for tortious interference

with prospective contractual relations under Pennsylvania law, a plaintiff must

plead (1) the existence of a prospective contractual relationship; (2) purposeful

action by the defendant intended to prevent the prospective contractual

relationship from forming; (3) the absence of some privilege or justification

protecting the defendant’s conduct; and (4) actual damage to the plaintiff as a

result of that conduct. See Acumed, 561 F.3d at 212; Glenn, 272 A.2d at 898. A

prospective contractual relationship is “something less than a contractual

right, something more than a mere hope.” Thompson, 412 A.2d at 471. The

standard is an objective one, namely, whether the allegations establish a

“reasonable probability” a contract would have arisen absent the defendant’s

interference. See id. (quoting Glenn, 272 A.2d at 897).

The athletic director’s recommendation the School Board rehire Taylor

squarely gives rise to a reasonable probability the School Board would have

hired Taylor but for the alleged smear campaign. (See Doc. 35 ¶ 96). Taylor

avers that Obenstine carried out the campaign for the purpose of preventing

his rehiring as the girls’ varsity lacrosse coach. (See id. ¶¶ 153-154), and there

is no reasonable justification for Obenstine’s alleged interference based upon

the allegata. Taylor also asserts actual damages: the School Board’s decision

not to rehire his coaching services resulted in a loss of income. (See id. ¶ 155).

Taylor has pled sufficient facts to a state plausible claim for tortious

interference with a prospective contractual relationship. We will deny

Obenstine’s motion to dismiss Count VI to the extent it relates to Taylor’s

tortious interference with a prospective contractual relationship. Taylor

asserts additional factual allegations in his opposition brief that indicate the

School Board may have breached the terms of his appointment. (See Doc. 47

at 20). Hence, we will grant Taylor leave to amend this claim. See Grayson,

293 F.3d at 108.

b. Count V – False Light

False light is one of four torts Pennsylvania recognizes as protecting

individuals from invasions of privacy. See Graboff v. Colleran Firm, 744 F.3d

128, 136 (3d Cir. 2014) (citing Marks v. Bell Tel. Co., 331 A.2d 424, 430 (1975)).

Pennsylvania derives the definition of false light from the Restatement

(Second) of Torts and imposes liability on defendants who publish material

that “is not true, is highly offensive to a reasonable person, and is publicized

with knowledge or in reckless disregard of its falsity.” Id.; Larsen v. Phila.

Newspapers, Inc., 543 A.2d 1181, 1188 (Pa. Super. Ct. 1988) (en banc) (citing

RESTATEMENT (SECOND) OF TORTS § 652E (AM. L. INST. 1977)). Pennsylvania

courts give a broad reading to the idea of falsity. Falsity encompasses not only

untrue statements but also “selectively printed or broadcast true statements or

pictures . . . which create a false impression.” Phila. Newspapers, 543 A.2d at

1189. Even when a statement is true in the literal sense, it may be susceptible

to inferences casting an individual in a false light and thereby give rise to a

false light claim. See id. Nonetheless, the misrepresentation must be

sufficiently injurious that “serious offense may reasonably be expected to be

taken by a reasonable man in his position.” RESTATEMENT (SECOND) OF TORTS

§ 652E, cmt. c (AM. L. INST. 1977)).

Obenstine contends his statements about Taylor, even if untrue, cannot

be read as casting Taylor in a false light offensive to a reasonable person. (See

Doc. 42 at 23-25). We are unpersuaded. Taylor avers Obenstine repeated

Drew’s accusations of bullying, emotionally abusing players to the point of self-

harm, possibly shoving a player, and possibly engaging in sexually

inappropriate conduct. (See Doc. 35 ¶¶ 101-102). Obenstine also purportedly

accused Taylor of being abusive before, during, and after the 2019 lacrosse

season. (See id. ¶ 133). Such allegations, particularly when leveled at a high

school coach, are serious enough that a reasonable person could find them

highly offensive. We will deny Obenstine’s motion to dismiss Taylor’s false

light claim.

c. Count VI – Defamation

Under Pennsylvania law, a plaintiff bringing a defamation claim must

allege (1) the communication was defamatory in nature, (2) the communication

was published by the defendant, (3) the communication applied to the plaintiff,

(4) the recipient of the communication understood its defamatory meaning and

its application to the plaintiff, and (5) the plaintiff suffered special harm as a

result of the communication’s publication. See 42 PA. CONS. STAT. § 8343(a);

Graboff, 744 F.3d at 135. If the court determines at the outset the

communication in question is not capable of defamatory meaning, the claim

must be dismissed for failure to state a claim. See Remick v. Manfredy, 238

F.3d 248, 261 (3d Cir. 2001). However, dismissal is only appropriate when the

nondefamatory reading constitutes “the only reasonable interpretation of the

statement.” Hill v. Cosby, 665 F. App’x 169, 174 (3d Cir. 2016)

(nonprecedential) (citing Zartman v. Lehigh Cty. Humane Soc’y, 482 A.2d 266,

269 (Pa. Super. Ct. 1984)).

Obenstine contends his alleged statements are not capable of

defamatory meaning. (See Doc. 42 at 7-14). A defamatory statement is one

that “tends so to harm the reputation of another as to lower him in the

estimation of the community or to deter third persons from associating or

dealing with him.” Remick, 238 F.3d at 261 (quoting Tucker v. Fischbein, 237

F.3d 275, 282 (3d Cir. 2001)). Statements that are “merely annoying or

embarrassing” do not qualify as defamatory, nor do “rhetorical hyperbole or

. . . vigorous epithet[s].” Beverly Enters., Inc. v. Trump, 182 F.3d 183, 187 (3d

Cir. 1999) (quoting Kryeski v. Schott Glass Techs., Inc., 626 A.2d 595, 601 (Pa.

Super. Ct. 1993)). Crucially, the statement must be capable of being proven

false to give rise to a claim of defamation. See, e.g., Milkovich v. Lorain

Journal Co., 497 U.S. 1, 19-20 (1990).

Taylor’s amended complaint describes Obenstine making five negative

statements about Taylor. Some of these statements are sufficient to sustain a

defamation claim. Obenstine’s accusations Taylor emotionally abused players

to the point of self-harm and engaged in sexually inappropriate conduct clearly

rise to the level of defamatory. (See Doc. 35 ¶¶ 101-102). Both statements, if

taken to be true, are prone to lower the community’s estimation of a high

school coach. See Remick, 238 F.3d at 261. Similarly, Obenstine’s statement

about assaulting a player by shoving her could be read as defamatory. (See

Doc. 35 ¶¶ 101-102). Obenstine also purportedly accused Taylor of being

abusive. (See id. ¶ 133). Although only pled in vague terms, this statement

could plausibly be read as defamatory. Abuse is a serious accusation to level at

a high school coach—one likely to lower the coach’s esteem in the community

and can carry the connotation of criminality. See Remick, 238 F.3d at 261. We

construe the complaint in a light most favorable to the nonmoving party. For

these reasons, we will thus deny Obenstine’s motion to dismiss Taylor’s

defamation claim with respect to each of these statements.

In contrast, Obenstine’s accusation Taylor bullied his players is too

commonplace an accusation to constitute defamation. (See Doc. 35 ¶¶ 101-102);

see also Purcell v. Ewing, 560 F. Supp. 2d 337, 343-44 (M.D. Pa. 2008) (Conner,

J.) (holding accusing a plaintiff of being a “bully” is not defamatory) (citing

Beverly Enters., 182 F.3d at 187). The same is true of Obenstine’s angry

expression of concern about player safety at a meeting between the parents of

lacrosse players and the athletic director. (See Doc. 35 ¶ 74). Concerns about

safety, without more, are simply not defamatory. Obenstine also allegedly

deflected a conversation away from the conduct of a particular lacrosse player

and onto Taylor’s supposed inappropriate conduct. (See id. ¶ 79). Deflecting a

conversation is not defamatory. Consequently, we will grant Obenstine’s

motion with respect to the bullying, player safety, and deflection statements.

d. Count III – Civil Conspiracy

To state a claim for civil conspiracy, a plaintiff must set forth the

following allegations: “(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.” Livingston v. Borough of Edgewood,

430 F. App’x 172, 178 (3d Cir. 2011) (nonprecedential) (quoting Gen.

Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 313 (3d Cir. 2003));

see also Fiedler v. Spencer, 231 A.3d 831, 838 (Pa. Super. Ct. 2020), petition for

allowance of appeal denied, 241 A.3d 335 (Pa. 2020). As a predicate to liability

for civil conspiracy, the complaint must allege a distinct underlying tort. See

Muth v. Woodring, 755 F. App’x 109, 115 (3d Cir. 2018) (nonprecedential)

(quoting Boyanowski v. Cap. Area Intermediate Unit, 215 F.3d 396, 405-406 (3d

Cir. 2000)).

Obenstine argues Taylor’s civil conspiracy claim is legally deficient

because Taylor failed to successfully plead any underlying tort in the amended

complaint. (See Doc. 42 at 20-21). As explained supra, Taylor successfully

alleges three underlying torts: tortious interference with a prospective

contract, false light, and defamation. (See Doc. 35 ¶¶ 152-172). Taylor also

identifies the parties to the conspiracy (Drew, Cronin, and Obenstine), (see id.

¶ 143); their common purpose, (see id. ¶¶ 143-144); and numerous overt acts

done in pursuance of that common purpose—including making false

statements, (see id. ¶¶ 100-103, 133, 145), and soliciting false allegations, (see id.

¶¶ 29, 68, 70, 104). Lastly, Taylor alleges legal damages in the form of lost

income and injury to his reputation. (See id. ¶ 150). All the elements of a civil

conspiracy claim are present in the facts pled. We will deny Obenstine’s

motion to dismiss Count III.

2. Counts IV, V, and VI Against Drew and Cronin

Pennsylvania grants high public officials absolute immunity from “all

civil suits for damages arising out of false defamatory statements and even

from statements or actions motivated by malice.” Smith v. Borough of

Dunmore, 633 F.3d 176, 181 (3d Cir. 2011) (quoting Lindner v. Mollan, 677 A.2d

1194, 1195 (Pa. 1996)). The purpose of the high public official immunity

doctrine “is not to benefit the official but to protect society’s interest in the

unfettered discussion of public business.” Heller v. Fulare, 454 F.3d 174, 178

(3d Cir. 2006). Pennsylvania school directors constitute high public officials.

See, e.g., Caristo v. Blairsville-Saltsburg Sch. Dist., 370 F. Supp. 3d 554, 563

(W.D. Pa. 2019) (collecting Third Circuit cases holding school board members

are high public officials); Cutler v. Bellefonte Area Sch. Dist., 97 F. Supp. 3d

586, 589 (M.D. Pa. 2015) (holding school board member is a high public official);

Kohn v. Sch. Dist. of City of Harrisburg, 817 F. Supp. 2d 487, 512 (M.D. Pa.

2011) (same); Zugarek v. S. Tioga Sch. Dist., 214 F. Supp. 2d 468, 479 (M.D. Pa.

2002) (same); Matta v. Burton, 721 A.2d 1164, 1166 (Pa. Commw. Ct. 1998)

(same).

To receive the protections of this immunity, defendants’ allegedly

tortious conduct must be closely related to the exercise of their official duties

and within the scope of their authority. See Smith, 633 F.3d at 181-82;

McCormick v. Specter, 275 A.2d 688, 689 (Pa. Super. Ct. 1971). For example,

high public official immunity protected defamatory statements made by a

mayor attacking a person in a press release. See McKibben v. Schmotzer, 700

A.2d 484, 491-92 (Pa. Super. Ct. 1997). But it did not protect a statement by

that mayor attacking the same person when made in conjunction with a

private legal proceeding. See id. at 492. Consequently, we must examine

whether Drew and Cronin’s allegedly tortious conduct under each count was

closely related to their official public duties or whether they were acting as

private citizens.

Pennsylvania courts focus on two factors when deciding if a particular

line of conduct was closely related to a defendant’s official duties: “(1) the

formality of the forum in which the words were spoken or published, and (2)

the relationship of the legitimate subject of governmental concern to the

person seeking damages.” Heller, 454 F.3d at 178 (citing Hall v. Kiger, 795 A.2d

497, 501 (Pa. Commw. Ct. 2002)). Drew and Cronin’s statements during formal

School Board meetings and votes on School Board decisions, even if false and

malicious, are obviously protected by high public official immunity. See

Heller, 454 F.3d at 179-80 (collecting cases demonstrating even accusations of

explicitly criminal conduct are protected by high public official immunity). We

will grant Drew and Cronin’s motion to the extent Taylor’s state-law claims are

premised on actions taken by these defendants during official meetings of the

School Board.

Taylor alleges certain conduct by Drew and Cronin, however, arguably

undertaken outside of their official capacities. For example, Cronin allegedly

contrived the original accusation that Taylor engaged in sexually inappropriate

conduct. (See id. ¶¶ 28, 54-55). Drew and Cronin also allegedly solicited

individuals outside of School Board meetings to provide false and denigrating

information about Taylor. (See id. ¶¶ 28, 68, 70, 84, 104). Whether certain acts

occurred within the scope of Drew and Cronin’s official duties is a fact-specific

determination better suited for resolution at the summary judgment stage or at

trial, on a fully developed record. See, e.g., Ferrone v. Onorato, 439 F. Supp.

2d 442, 455 (W.D. Pa. 2006), aff'd, 298 F. App’x 190 (3d Cir. 2008)

(nonprecedential).

For the reasons set forth above, we will deny the motion to dismiss

Counts IV, V, and VI against Drew and Cronin as to Drew and Cronin’s actions

outside of their official capacities.

IV. Conclusion

We will grant in part and deny in part the pending motions to dismiss as set

forth more fully herein. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: January 7, 2022