Petition for Writ of Certiorari — Boyanowski v. Capital Area Intermediate Unit

| _ Supreme Court, U.S,

(\) FILED

OO 41 9SEP 12-200

No.

In The

Supreme Court of the United States

October Term, 2000

DONALD BOYANOWSKI AND DOROTHY

BOYANOWSKI,

Petitioners

CAPITAL AREA INTERMEDIATE UNIT; JOHN

NAGLE; AND ED FRYE;

Respondents

On Petition for Writ of Certiorari to the

United States Court of Appeals For The Third Circuit

PETITION FOR WRIT OF CERTIORARI

Don Bailey

Attorney for Petitioners

4311 N. 2" Street

Harrisburg, PA 17110

(717) 221-9500

QUESTIONS PRESENTED

1.) Cana U.S. Appeals Court set a jury verdict aside on

factual grounds, without reviewing the underlying transcript.

2.) Can averments of fraud or dishonesty by state actors

constitute due process violations.

3.) Is there a protectable due process right to engage in

a business occupation under “Stigma plus” circumstances free of

intentional state interference.

4.) Did the U.S. Court of Appeals For the Third Circuit

properly apply the doctrine of “predictability” in reversing the

jury’s verdict for civil conspiracy.

5.) Should rule 4.2 of the Pennsylvania Rules of

Professional Conduct, based upon the “Model Rules of

Professional Conduct”, be declared void as against public policy.

ODA Es CNA Late eh lie lly Ns wea tan mnt hae h h F $ aM on taleelibe:

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED................:0ccc0000 i

TABLE OF CONTENT S............ccssscesseseceseee ii

TABLE OF CITATIONG..........ccsccsssssceeceeees ii

OPINIONS BELOW..............ccccscsscssssssceecerees I

STATEMENT OF JURISDICTION............. 1

CONSTITUTIONAL PROVISIONS.

INVOLVED penosionncooetnanetee ; 1

STATEMENT OF THE CASE...... 2

REASONS FOR GRANTING THE WRIT 7

CONCLUSION 13

APPENDIX ets

“A” . Third Circuit Order la

“B” - District Court Order

And Opinion 3a.

“C” - District Court Order And

Memorandum 48a.

TABLE OF CITATIONS

PAGE

Cases Cited:

Chase Manhattan Bank v. Nible, 1991

U.S. Dist. LEXIS 4671, 8

City of Bergen v. Dole, 620 F.Supp

1009 (1985) 8

Green v. Ford Motor Co., 1996 U.S.

Dist. LEXIS 4102, 8

Limbach Company v. Sheet Metal Workers,

949 F.2d 1241(1991) at 1247, 8

Meyer v. Nebraska, 262 U.S. 390 (1923 6

Tarket v.Congoloeum Corp, 156 F.R.D.

608 (1994) 8

West v. American Telephone Co.,

311 U.S. 223.(1940) 11

Williams v. Sullivan 970 F. 2d 1178

(1992), 8

eal a te

l

Petitioners Donald and Dorothy Boyanowski respectfully

request that a writ of certiorari be issued to review the judgement

of the United States Court of Appeals for the Third circuit in this

case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Third Circuit was filed on June 14, 2000 (App. A). The

relevant opinions of the United States District Court for the

Middle District of Pennsylvania were filed on April 27, 1998

(App.B) and May 21, 1997 (App.C).

STATEMENT OF JURISDICTION

The Third Circuit opinion was filed on June 14, 2000.

No petition for rehearing’ was sought. The District Court

opinions were filed on April 27, 1998 and May 12, 1997

respectively. No motions to vacate or rehear were filed.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1). |

Constitutional and Statutory Provisions Involved.

The Fourteenth Amendment to the U.S. Constitution

provides in relevant part “nor shall any state deprive any person

of life, liberty, or property, without due process of law...”

Rule 4.2 of the Rules of Professional conduct for the

Commonwealth of Pennsylvania provides in pertinent part:... “a

lawyer shall not communicate about the subject of the

representation with a party the lawyer knows to be represented

by another lawyer in the matter,...”

2

STATEMENT OF THE CASE

The basic issues in this request relates to standards

governing the standard of review by appeals courts where a fact-

based decision is made without review or resort to the trial

record. Related, and just as fundamental an issue, was the

appeal’s courts’ decision to ignore an issue raised by petitioner

in across appeal ie. , whether the District Court erred in granting

a motion in limine against using crucial material evidence based

on Pennsylvania Rule of Ethical Conduct 4.5. Lastly, the law on

“stigma plus” due process cases and the doctrine of

predictability where a federal court decides what a state court

will or would hold is at issue.

A.) Background

Petitioners are Don Boyanowski, a former Transportation

Director for respondent Capital Area Intermediate Unit (CAIU)

and his wife Dorothy who was an independent contractor driver

for the CAIU. Unhappy with CAIU practices Don invested

extensively in setting up a competing private transportation

company with the CAIU. Respondent Nagle was the CAIU —

executive director, and Frye was his assistant. The CAIU is

made up of the member school districts that comprised the

customers Boyanowski was going to. The respondents publically

castigated and attacked Boyanowski and accused him, falsely,

ask they later admitted under oath, of being a criminal. But they

did far more. They held meetings with Don’s customers through

‘ control of agendas and publically mandated meetings only they

had the power to call. They threatened others with the loss of

their livelihood, including following through on precluding any

work for petitioner Dorothy Boyanowski which the respondents

admitted on the record below, was for the purpose of

discouraging and dissuading Don Boyanowski from going ahead

as a competitor. They also, accused Don Boyanowski of fraud,

saying he had intentionally run-up the cost of the CAIU budget

3

when he was Transportation Director by, among other things,

illegally “padding” miles. This meant he was endangering the

lives of special needs children, and using them to create

conditions he could exploit when he retired. When the

respondent Nagle testified, he admitted under oath that these

allegations were false and that there wasn’t one thing

Boyanowski had done improperly in his government service.

Frye was similarly apologetic in admitting his wrongs. But the

respondents also testified to, as did petitioners and other

witnesses, to many actions, plans, and meetings by respondents,

including their Board, one member of whom testified as to the

depth and extent of the conspiracy to stop Boyanow ski. During

the discovery phase of the underlying case, petitioners’ counsel

received a phone call from a person named William Jacobi who

ran the data processing unit at the CAIU. He wished to talk and

counsel met with him. Jacobi indicated he had let it be known at

the CAIU that he felt many dishonest things were going on in the

effort to stop Boyanowski. He was told before he began that

counsel would listen to him, but that opposing counsel and the

Opposing parties would undoubtedly learn of his whistle

blowing. Jacobi said he did not want to be represented by the

respondents’ counsel, that he was threatened that serious

repercussions would follow if he revealed what he knew to

anyone but respondents’ counsel, that he wanted to retain

petitioners’ counsel, and that he was aware personally that his

superior’s job (a Mr. Zimmerman, who was permitted to testify)

had been directly threatened if he revealed what he knew.

Petitioners” counsel did listen to Jacobi, advised him that he

knew of no one who had to accept any attorney not of his choice,

and to consult another attorney (which he did). Before listening

to Jacobi he advised him he would insist on revealing the

contents of their meeting. Jacobi was in complete agreement.

Upon motion the District Court held that Rule 4.5 of the Code

of Professional Conduct had been violated by Petitioners’

4

counsel. Jacobi, who had kept notes, and had extensive evidence

of improper misconduct by respondents, was prevented form

testifying although his testimony related to matters of public

policy conducted by public officials, at tax payers expense, to

avoid discussion and competition from a highly qualified private

adversary in the interests of children and public education.

Petitioners argued that this rule should not, particularly in

matters appertaining to public trust and business, he used to

threaten knowledgeable witnesses into silence by among other

things threatening their employment. With the exception of the

motion in limine all of this was put before a federal jury. Well

educated and hardworking they found in large part for

petitioners. Respondents filed post trial motions. They did not

cite to the record, or use the trial transcript which they ordered.

They made no motion to enlarge time until they could obtain the

entire transcript. The District Court in its opinion (App.B) noted

the lack of a record from respondents on 12 separate occasions.

After the trial court denied respondents’ post trial motions, they

appealed to the Third Circuit. During oral argument the

respondents’ counsel was asked why, if respondents were |

claiming a paucity of evidence to support the jury verdict against

them, they had not sent the trial record down for review, The

panel advised or implied in so many words that in Teviewing

such a claim, they would need to do a de novo review of the

record. Respondents’ counsel remarked that he didn’t realize he

needed to do that because, since he ordered the transcript, it was

available for the court in the middle District Clerk’s office.

When petitioners counsel addressed the Court, he was

questioned as to why he did not cite prolifically to the record.

Petitioners explained that he was aware of the respondents

weakness in not sending the record down, and only providing

limited excerpts, that because of a recent heart attack which

required a request for enlargement anyway (which the appeal

court graciously granted) that a decision had been made not to

/

;

5

do the opposing parties’ work for them. They were the

appellants in the appeal and had cited excerpts of the record but

were doing that against a claim that there was no evidence in the

record to support the jury’s verdict. Petitioners’ counsel pointed

out that he had provided the complete transcriptions of 4 major

witnesses that contained numerous examples of stigma plus

testimony. The Appeal Court panel nonetheless directed appellee

(petitioners?) counsel to go back and cite to the record

specifically in spite of the significant portion of the trial record

already produced by petitioners. At this point petitioners’

counsel understood the panel to be directing citations in the

record to the issue of the civil conspiracy verdict only and the

Third Circuit opinion corroborates that point. Petitioners did so

in the few days provided and the Third Circuit so acknowledges

but calls the supporting evidence “thin.” What is evident is that

the Third Circuit did not review the trial transcript, and did not

review even the transcripts provided by petitioner, who in their

argument, intentionally hoping to win by default, were expecting

the respondents appeal to be dismissed for failure to adhere to

the standard of review in such cases ie where the allegation on

appeal is one of insufficiency. Petitioner was expected to carry

the burden, as appellee, of proving their case. Appellant enjoyed

‘the luxury of, by and large, a conclusory appeal. The jury’s

verdict, after a whole week of trial and hours of deliberations.

was set aside on grounds of insufficiency of the evidence ie that

petitioners only presented evidence of a defamation claim and no

more, and in spite of petitioners’ request to the Appeal Court to

read the whole record, for which he was admonished, and

despite respondents (appellants) failure to transmit the record to

the Appeal Court, the panel said, in effect, that the district Court

instructions were not sound, (even knowing the District Court

did not have a record to consult because respondents’ never

supplied one) the Third Circuit stood the commonly understood

standard of review that claims of insufficient evidence require a

6

de novo review of the record on its head, and should have at

least required the availability of the record before reversing a

jury’s findings of fact and a trial courts understanding of lawful

instructions based upon those facts. The Appeals Court panel

also dismissed petitioners $150,000.00 supplemental claim

verdict based on the abuses suffered by Dorothy Royanowski

based upon an unclear legal doctrine which allows cases to be

dismissed based upon predictions of what state courts would do.

This doctrine is not defined in the Third Circuit opinion. The

Appeal Court did not properly apply or interpret this Court’s

opinion on substantive due process claims nor did it apply its

own law properly because it did not review the record in this

case. “We similarly view Meyer (referring to Meyer v. Nebraska,

262 U.S. 390 (1923) as too slender a reed upon which to rest Mr.

Boyanowski’s substantive due process claim.” Further on, the

Appeal panel, in conclusory fashion says “Equating a

defamatory statement that leads to a third parties not extending

a contract to a frustrated plaintiff with the deprivation of the

plaintiffs legal right to engage in the common occupation of life

in a manner protected by the Fourteenth Amendment goes to

far.” Well of course it does, depending on_what was said or

done. But how can this form of an insufficiency argument apply

without consulting the entire record in a case like this. If the

conclusory preambie to their dictum is eviscerated and the

following language substituted, concocting false information

about a competitor, soliciting support to oppose him from the

very group that constitutes your governing body, dismissing his

wife after 27 years of spotless loyal service as an admitted way

to harm him and frighten him away, changing past records and

submitting false information to customers to bolster your

argument that he committed a fraud while working for you, all

to ensure his success against you after retirement, all criminal

acts, all indictable offenses, and all false, coupled with

falsifying budget data, threatening staff members not to be

7

truthful, and threatening their job security do not amount to due

process violations as interferences with a citizens right to launch

and operate a business, then there is little use for any federally

guaranteed rights. It is also amusing to see constant references

to state tort law as possible remedies for these obvious wrongs

when virtually every alleged tort is protected by sovereign or

official immunity blithely referred to as a “state law question.”

Lastly, the Appeals Court did not even refer to petitioners’ issue

regarding Professional Ethics Rule 4.2. An analysis of this rule

and the effect of excluding the affected testimony alone, with no

other, would debunk the theory that the underlying case was a

run of the mill defamation tort claim. Mr. Jacobi’s entire

deposition was made part of the record before the Appellate and

District Courts. The Third Circuit made no mention of the

excluded evidence, or the Rule, in its opinion.

REASONS FOR GRANTING THE WRIT

THE PETITION SHOULD BE GRANTED

BECAUSE THE APPEALS COURT REVERSED A

DISTRICT COURT AND IGNORED A JURY VERDICT

WITHOUT REVIEWING THE TRIAL TRANSCRIPT

SETTING A DANGEROUS PRECEDENT IN VIOLATION

OF ESTABLISHED PRACTICES AS TO THE

STANDARD OF REVIEW IN CASES WHERE

INSUFFICIENT EVIDENCE IS RAISED AS THE BASIS

OF THE APPEAL.

A search of Third Circuit cases did not reveal a single

case where there was even an implication that less than a

thorough and complete review of the underlying record was

conducted in situations were there were allegations of

insufficient evidence. Petitioners conducted a LEXIS search

using a number of formats. The most successful was

“insufficient evidence” w/5 standard w/5 review w/30 record.”

8

Virtually every case petitioner could find on this subject

revealed only that “thorough” and complete” reviews of

“evidence” and the “record” were conducted in such cases

before a decision was reached. See Williams v. Sullivan 970 F.

2d 1178 1992), Limbach Company v. Sheet Metal Workers,

949 F.2d 1241(1991) at 1247, Green v. Ford Motor Co., 1996

U.S. Dist. LEXIS 4102, Tarket v.Congoloeum Corp, 156 F.R.D.

608 (1994), Chase Manhattan Bank v. Nible, 1991 U.S. Dist.

LEXIS 4671, City of Bergen v. Dole, 620 F.Supp 1009 (1985).

The language is always similar, and although there is no case

directly on point from any Circuit that petitioner can find, in

every case where a standard of review is directly or indirectly

referenced (as related to insufficient evidence), the inference or

meaning is always the same. The standard of review calls for a

thorough and de novo review of the record just as respondents’

counsel was told. This case is the only case known to petitioners,

or any member of the bar consulted, where the court decided a

matter based upon allegations of insufficient evidence without

a review of the record.

Il

THE PETITION SHOULD BE GRANTED

BECAUSE THE LAW IS UNCLEAR FROM CIRCUIT TO

CIRCUIT AS TO WHETHER AVERMENTS OF FRAUD

OR DISHONESTY BY STATE ACTORS, COUPLED

WITH OTHER ACTIONS OF INTERFERENCE BY

STATE ACTORS CONSTITUTE DUE PROCESS

VIOLATIONS IN SITUATIONS WHERE CITIZENS ARE

ATTEMPTING TO START UP OR CONDUCT A

BUSINESS.

What happened here is quite simple. Petitioner retired

from respondents’ employ. Respondent is a municipal entity in

the business of providing a multitude of services to its member

school districts. It does this in some cases, like transportation, by

{

’

9

having to compete for that work, at least in an ideal situation.

After petitioner Don Boyanowski retired, he, at great expense

and trouble formed a business and set about soliciting work from

the school districts. This was new. It created tremendous interest

among the respondents’ member school districts. They began to

flock to petitioner. Respondents then began to engage in a

number of actions to dest.oy petitioners’ business opportunity.

Respondents changed records and statistics, they misrepresented

facts, reports, and budget figures to create the falsehoods that

petitioner had manipulated even the routes, time of pick-up, drop

of, and the number of miles on the road, of small and helpless

special needs children, while Transportation director for

respondent, in order to lay the groundwork for his business.

Petitioner was called a criminal and accused of fraud. He was

financially and emotionally destroyed. His wife, a lovely woman

who gave 27 years of perfect service to the respondent was not

only refused an opportunity to work for respondent but

respondent directly prevented her from working for another

contractor with respondent. The Third Circuit, summarily, and

without a review of the record, which they expressly advised

respondents counsel on the need for but did not require his

compliance, conclusively, without the facts, called this a mere

defamation claim. The District Court also admittedly did not

have the record because respondent never supplied it for the

District Court either, but the District Court (See App.B) with an

experienced federal judge at the helm, who sat through the entire

trial as the jury did, saw petitioners’ interests as akin to a liberty

interest, and saw petitioners as the victims of “stigma plus”

circumstances at the hands of the respondents. Petitioners are not

judges. They only know or believe that they are free to start a

business. But under the limited facts visited by the Third Circuit

which consisted of reading the respondents’ limited excerpts

from the trial record, and not reviewing petitioners submissions

of a portion of the record (which they complain accurately was

10

not cited to pages and quotes, because, as petitioners put it, the

testimony submitted was too persuasive in relevant factual

information to make a breakdown practicable), and not accepting

in the face of their limited visitation to the facts, the trial judges

or the jury’s findings, decided it only amounted to a mere

defamation. The District Court believed that the facts supported

_ astigma plus situation because of the persuasive misconduct by

the state action which was demonstrated at trial. Again,

consistently based upon their lack of knowledge of the factual

record, the Third Circuit rejected the District Courts opinion that

facts sufficient to support a stigma plus finding were present.

They saw no liberty interest, and they saw nothing beyond some

minor defamation.

THE WRIT SHOULD BE GRANTED BECAUSE

THERE IS A PROTECTABLE DUE PROCESS

INTEREST IN FREE ENTERPRISE, IN STAKTING UP

AND CONDUCTING A_ BUSINESS, FREE OF

INTENTIONAL GOVERNMENT INTERFERENCE.

The Third Circuit went far beyond merely commenting

or holding that based upon their factual conclusion, the-facts

here only supported a mere defamation claim. Their opinion was

based upon a definitive fear that agreeing with the District Court

would result in a deluge of run of the mill state tort claims. This

fear dominates their opinion and produces an anomalous result.

Their holding that “after all Boyanowski was never

barred from having his bids considered “is simply incredulous.

it appears out of thin air. It simply isn’t accurate. If what the

Boyanowski’s suffered at the hands of the state actors, who

enjoy incredible deference in our system today, from immunity

protections of all sorts to the fear that the administration of

1]

Justice will be overburdened. This was a stigma plus case.

Setting up and running a business, and the freedom to engage in

that business free of a pervasive and fatal interference from

competing government actors is a_protectable, federally

guaranteed, interest. The District Court’s holding should be

reinstated and the Third Circuit should be reversed.

IV

THE WRIT SHOULD BE GRANTED BECAUSE

THE THIRD CIRCUIT APPLICABILITY OF THE

DOCTRINE OF PREDICTABLY WAS ARBRITARY AND

CAPRICIOUS APPLIED AND LACKS GUIDANCE FROM

THIS COURT. |

In deciding to dismiss the jury and reverse the District

Court on Dorothy Boyanowski’s civil conspiracy claim the Third

Circuit promulgated a doctrine of “predictability” for

determining what a state supreme court would find and relied on

their interpretation of a Pennsylvania appellate court decision

(not the state Supreme Court) concluding that such a decision

was “datum” as per West v. American Telephone Co.. 311 U.S.

223 (1940). With nothing else to go on the trial court was again

set aside. there is still no definitive holding in Pennsylvania that

a civil conspiracy cannot stand only as a separate offense

without an underlying tort. It does in federal law, both criminally

and civilly. This doctrine should be revisited and redefined by

this Court.

V

THE PETITION SHOULD BE GRANTED

BECAUSE PENNSYLVANIA RULE OF PROFESSIONAL

CONDUCT 4.2 BASED UPON THE MODEL CODE,

SHOULD BE STRUCK DOWN AS VOID AS AGAINST

PUBLIC POLICY PARTICULARLY WHERE

12

GOVERNMENT OFFICIALS AND GOVERNMENT

POLICY’, ACTIVITY, AND FUNCTIONS ARE

INVOLVED.

Perhaps this issue, totally ignored by the Third Circuit,

is the most important addressed to this Court. See App.C.

William Jacobi was in charge of administering the data

processing facility at the respondent CAIU. He was not a policy

or major decision maker. He had no voting or decision making

powers beyond his small office function. But he knew’ a great

deal about the underlying fact situation. After this litigation

began he was known to stand on his own and would not conform

to efforts to change information etc. When approached by

respondents’ counsel he informed him that he didn’t agree with

what was occurring, did not want his representation, and it was

obvious that he intended to “spill the beans” in the interest of

what he believed to be justice. He claims he was threatened, and

that his superior George Zimmerman had already been

threatened if he told the truth. He called petitioners’ counsel and

asked if he could speak to him.Counsel indicated he would

listen, but if anything relevant to the litigation was discovered it

would be passed on to respondents’ counsel. Jacobi agreed and

told some of his story. Petitioners’ counsel called respondents’

counsel and informed him. The District Court presumed that

Jacobi was a manager, and that his testimony and availability to

opposing counsel was limited by Rule 4.2. Jacobi’s testimony

would have been devastating to respondents. Why are public

officials, and government defendants allowed to control, threaten

and preclude other public employees (short of court employees,

national security, or other necessitous limitations) from

disclosing information about the official conduct and affairs of

other public officials and employees. This is a rule in need of

reform in the interest of a more sound public policy. Mr. Jacobi

came forward voluntary without solicitation or encouragement

of any kind. Why is opposing counsel forced by this rule to

13

reinforce the threats he had already received from his own

counsel, who was forced on him by the respondents and direct

him back to fear and discord?. This rule is an affiant to the

administration of justice, serves to discourage the search for the

truth, and should be void against public policy.

CONCLUSION

This case contains issues of national importance. How

free are we to engage in free enterprise? What are the limits that

government entities who already enjoy significant protections

not afforded other torfeasors in our system, can go to destroy

their opposition. Why do otherwise useful Rules (4.2) operate to

suppress the truth, avoid justice, and result in bad government

policy and practice, let alone support threats of firings and

demotions visited on public employees. This Court should

accept the writ.

Vy Boe

Don Bailey y

4311 N. 6" Street

Harrisburg, PA 17110

APPENDIX

ah a bo “ ee ee ee Oe eee eee —_ —a7 . a i ae fae: si ee

la

APPENDIX “A” - MEMORANDUM OPINION IN THE

THIRD CIRCUIT COURT OF APPEALS DATES JUNE

14, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

DONALD BOYANOWSKI, :

Individually; DONALD

BOYANOWSKI, tdba, Boyo :

Transportation Services Inc. :

DOROTHY BOYANOWSKI:

BOYO TRANSPORTATION:

SERVICES INC; ‘casomee

LABALOKIE

V.

CAPITAL AREA

INTERMEDIATE UNIT;

JOHN NAGLE; ED FRYE; :

ROGER MORRISON, :

Individually; MARK BAUER:

WEST PERRY SCHOOL :

DISTRICT

CAPITAL AREA

INTERMEDIATE UNIT; _ :

JOHN NAGLE; ED FRYE; :

Appellants in 98-7324

DONALD BOYANOWSKI; :

MICHAEL LABALOKIE

Appellants in 98-7349

NOS. 98-7324 and

98-7349

ARGUED

SEPTEMBER 23, 1999

Aa

BEFORE: HONORABLE BECKER, Chief Judge

HONORABLE GARTH, Circuit Judge

HONORABLE POLLAK, District Judge

MEMORANDUM OPINION

BY CHIEF JUDGE BECKER

FILED:

June 14, 2000

OPINION OF THE COURT

BECKER, Chief Judge.

These appeals arise from a judgment entered in the

District Court on separate jury verdicts in favor of a

transportation contractor and his wife in their respective

civil rights and civil conspiracy suits against a local

government entity and its officials. Donald Boyanowski

alleged that his efforts to furnish transportation services to

school districts failed because of conduct by local officials

that violated his substantive due process rights. Dorothy

Boyanowski claimed to have been the victim of a civil

conspiracy by two local officials that prevented her from

receiving contracts to work as a bus driver. The appeal of

the vecdict in Donald Boyanowski's favor requires

consideration of the relation, and separation, between

federal constitutional and state tort actions. The appeal of

the verdict in Dorothy Boyanowski's favor presents the

question whether a plaintiff 's verdict for (state law) civil

conspiracy can survive when the jury has found for the

defendant on the underlying tort.

The first verdict, in favor of Donald Boyanowski and

against his former employer, the Capital Area Intermediate

ee ee a ee a eae

Tre ee

Sa

Unit ("CAIU"), was entered on his claim that the CAIU's

conduct violated his substantive due process rights. He also

won a verdict against John Nagle, who had been executive

director of the CAIU, but the District Court set 1 aside on

qualified immunity grounds. Mr. Boyanowski's claims are

essentially state tort defamation claims that do not

implicate a federal constitutional interest. Constitutional

claims of this sort have been implicitly rejected by the

Supreme Court, see Siegert v. Gilley, 500 U.S. 226 (1991),

and find no basis in our jurisprudence. We will therefore

set aside the jury verdict in Mr. Boyanowski's favor. In light

of our conclusion that he has not been deprived of

constitutionally protected rights, there is no need to

consider his cross-appeal of the District Court's decision to

grant Nagle qualified immunity.

The second verdict, in favor of Dorothy Boyanowski

against two CAIU officials, is for civil conspiracy. She

claimed that officers of the CAIU conspired to interfere with

her contract rights as part of their campaign against her

husband. The jury found in her favor on her civil

conspiracy complaint while rejecting her claim for tortious

interference with contract. In light of the jury's finding that

the underlying tort did not occur, we conclude that the civil

conspiracy claim can not survive. See GMH Assoc., Inc. v.

Prudential Realty Group, CB, __—«A.2d ___, No. 198 EDA

1999, 2000 WL 228918 (Pa. Super. Ct. March 1, 2000);

Pelagatt: v. Cohen, 536 A.2d 1337 (Pa. Super. Ct. 1987). We

will therefore set aside the verdict on civil conspiracy as

well, and remand with directions to enter judgment for the

defendants on all counts.

The CAIU is a governmental entity operating under

Pennsylvania's public school laws. Intermediate units

("IUs") are part of the state's public school system and

operate service programs that are open to the local public

school districts assigned to each intermediate unit. See Pa.

Ha.

Stat. Ann. tit. 24 S 9-951 et seq. The board of directors of

the IU is elected from the boards of directors of the

component school districts. See id. S 9-960. The CAIU is

one of twenty-nine [Us in the state. See id.S 9-952. The

CAIU provides transportation for disabled children to and

from classes and programs throughout the unit’: region. It

does so through a combination of employees and

independent contractors. Prior to his retirement in July

1993, defendant John Nagle, as is noted above, was

Executive Director of the CAIU. Defendant Edward Frye was

the Assistant Executive Director and succeeded Nagle as

Executive Director.

Until his retirement in March 1993, Donald Boyanowski

was the CAIU transportation supervisor. After retiring, he

established Boyo Transportation Services, Inc. ("Boyo"),

which sought to contract for special transportation services

with the member school districts of the CAIU. This entailed

convincing them to no longer acquire such services through

the CAIU. Mr. Boyanowski was therefore effectively

competing with his former employer. Having been

unsuccessful in persuading any member districts to accept

his contract proposals, he brought suit under 42 U.S.C.

S 1983, contending that his lack of success was the product

of a violation of his substantive due process rights. At trial,

he produced evidence that Nagle unfairly blamed him for

rising costs of the CAIU program that occurred while he

was a supervisor, and had referred to Mr. Boyanowski as a

"crook" in a meeting of the CAIU superintendents council.

Mr. Bcyanowski alleged these actions were part of a

concerted effort to keep him from obtaining any contracts.

The jury found that the CAIU's and Nagle's conduct

violated Mr. Boyanowski's substantive due process rights,

and awarded compensatory damages in the amount of

$50,000 against the CAIU and $100,000 against Nagle. The

jury also awarded $100,000 in punitive damages against

ee iS

5a.

Nagle. On post-trial motions, the District Court ruled that

Nagle was entitled to qualified immunity on the substantive

due process claim, and it set aside the verdict and damages

against him. The CAIU appeals the substantive due process

judgment against it, and Mr. Boyanowski cross appeals the

grant of qualified immunity to Nagle.

The jury also considered several claims brought by

Dorothy Boyanowski. She had been employed as an

independent contractor bus driver for the CAIU After her

husband established Boyo, Ms. Boyanowski's contract was

not renewed. She contended that Frye and Nagle engaged in

conduct that amounted to tortious interference with

contract against her as well as a civil conspiracy. She

produced evidence at trial not only that her contract was

not renewed, but also that Frye had made statements that

were relayed to one of CAIU's busing contractors that hiring

her would not be a "good idea," and that this

communication occurred while Nagle was still in charge.

Ms. Boyanowski also produced evidence that Nagle had

sent her a letter informing her that her contract would not

be renewed. The jury found for the defendants on the

tortious interference with contract claim, but ruled in Ms.

Boyanowski's favor as to the civil conspiracy, awarding her

$50,000 against Nagle and $100,000 against Frye. The

defendants also appeal this judgment.

The District Court had jurisdiction over Donald

Boyanowski's civil rights claim under 28 U.S.C.S 1331,

1343. It had supplemental jurisdiction over Dorothy

Boyanowski's state law claims pursuant to 28 U.S.C.

S 1367. Our jurisdiction over the District Court's final order

is based on 28 U.S.C. S 1291. Our review of all legal questions

is plenary.

The core of due process is the protection against

arbitrary governmental action and has procedural and

ba.

substantive components. See County of Sacramento v.

Lewis, 523 U.S. 833, 845-46 (1998). The substantive

component of the Due Process Clause limits what

government may do regardless of the fairness of procedures

that it -mploys, and covers government conduct in both

legislative and executive capacities. See id. at 846. The

CAIU's appeal requires us to address executive conduct

alleged to have infringed upon Donald Boyanowski's rights

as protected by the Due Process Clause of the Fourteenth

Amendment.

Unfortunately for Mr. Boyanowski, his substantive due

process claim is properly read as a state law defamation

claim. This is even made clear by his own bitef, which

indicates that his S 1983 claim is based on defamation and

exists solely to circumvent Pennsylvania sovereign

immunity against state tort claims. As the Boyanowskis'

brief recites:

According to appellants, if a government entity is

interested in doing business, and in the process uses

its political power and muscle to systematically destroy

the business opportunities of a competing private

citizen through slur, innuendo, and outright false

accusations, then the misconduct is simply _ not

actionable. In Pennsylvania sovereign immunity

protects government from tortious interference with

contracts suits. Appellants know there is no adequate

recourse under state defamation law also because of

sovereign immunity statutes.

Appellee's Br. at 8 (emphasis added). Of course the lack

availability of a state law remedy will not serve to elevate an

ordinary tort to a constitutional violation. The degree to

which Pennsylvania wishes to waive sovereign immunity

claims for state causes of action.is the quintessence of a

state law question.

In instructing the jury on Mr. Boyanowski's substantive

Ha.

due process claim, the District Court charged:

You must first decide if each of plaintiffs were

deprived of a fundamental right. You are advised that

here is no constitutionally protected right to obtain

future government contracts, and _ that suspension or

debarment from bidding on government contracts may

be a basis for liability only if it is based upon a charge

o f fraud or dishonesty.

Plaintiffs must therefore show that the government

officials stigmatized plaintiff by publishing charges of

fraud or dishonesty which were substantially and

materially false, and that the defendants making them

knew they were false or had serious doubts about the

truth of these statements, and that those statements

had the effect of preventing plaintiff from engaging in

the transportation business.

Assuming arguendo that the jury's verdict for Mr.

Boyanowski on this charge was supported by the evidence,

we must determine if the substance of the charge was

correct, i.e., whether defamatory statements that curtail a

plaintiff 's business opportunities suffice to support a

substantive due process claim. At the outset of this inquiry,

we must be mindful of the Supreme Court's commands in

addressing the interplay of constitutional and state tort

law. First, the Fourteenth Amendment is not "a font of tort

law to be superimposed upon whatever systems may

already be administered by the States." Paul v. Davis, 424

U.S. 693, 701 (1976). Second, we must remember that"[a]s

a general matter, the [Supreme] Court has always been

reluctant to expand the concept of substantive due process

because guideposts for responsible decision making in this

uncharted area are scarce and open-ended. The doctrine of

judicial self-restraint requires us to exercise the utmost

care whenever we are asked to break new ground in this

field." Collins v. City of Harker Heights , 503 U.S. 115, 125

Ba.

(1992) (citation omitted). Addressing the substantive due

process claim, therefore, requires scrupulous attention to

the guideposts that have previously been established.

A

We note preliminarily that establishing a substantive due

process claim even when executive action has infringed an

interest protected by the Due Process Clause is difficult.

"Our cases dealing with abusive executive action have

repeatedly emphasized that only the most egregious official

conduct can be said to be ‘arbitrary-in the constitutional

sense... .'" County of Sacramento v. Lewis, 523 U.S. 833,

846 (1998) (quoting Collins v. Harker Heights , 503 U.S.

115, 129 (1992)) (emphasis added). For executive conduct,

the Supreme Court has "for half a century now . .. spoken

of the cognizable level of executive abuse of power as that

which shocks the conscience." See id. Determining whether

the challenged action rises to this level has been described

as a "threshold" question in a challenge to an executive

action. See id. at 847 n.8 ("[The] threshold question is

whether the behavior of the governmental officer is so

egregious, so dutrageous, that it may fairly be said to shock

the contemporary conscience. . . . Only if the necessary

condition of egregious behavior were satisfied would there

be a possibility of recognizing a substantive due process

right to be free of such executive action... .").

YVhough we construe the trial record in Mr.

Boyanowski's favor, we cannot agree that the conduct of which

he complains rises to the level required by the Supreme Court

in Lewis. The statements allegedly. made about Donald

Boyanowski--that he was a "crook" and was responsible for

cost overruns of the CAIU's transportation program--had

no direct legal effect upon him. He was not prohibited from

bidding on contracts or otherwise restricted in his conduct,

and the comments were not publicized in a manner that

Ca

would humiliate him before the community at large. At

least one of our sister circuits has found that far more

defamatory statements did not rise to a conscience-

shocking level for substantive due process purposes. See

Mertik v. Blalock, 983 F.2d 1353, 1367-68 (6th Cir. 1993)

(affirming district court conclusion that banning coach from

city ice rink and publishing to third parties false statements

that coach was sexually abusing minor students did not

rise to conduct that shocked the court's conscience). The

evidence in this case docs not rise to the level of truly

egregious conduct that is required for a substantive due

process claim as described by the Supreme Court in Lewis.

At worst, the evidence indicates sharp business practices

by a competitor.

It is true that Lewis teaches that what"shocks the

conscience" varies from circumstance to circumstance. See

Lewis, 523 U.S. at 850 ("Deliberate indifference that shocks

in One environment may not be so patently egregious in

another, and our concern with preserving the constitutional

proportions of substantive due process demands an exact

analysis of circumstances before any abuse of power is

condemned as _ conscience-shocking."). We need not.

however, definitively calibrate the egregiousness ievel that

Lewis would require of a defamation-type claim because

other precedent makes clear that this sort of claim cannot

- present a substantive due process violation in the first

place

The Supreme Court has made clear that federal courts

are not to view defamatory acts as constitutional violations.

In Paul v. Davis, 424.U.S. 693 (1976), a procedural due

process case, the Court held that defamation by itself did

not harm a "liberty" interest protected under the

Fourteenth Amendment. Paul involved a plaintiff whose

name and photograph appeared on a police flyer that was

captioned "Active Shoplifters" and distributed among

(Oa.

merchants. The Court turned aside a procedural due

process claim on the grounds that harm to reputation alone

did not suffice for a constitutional tort based on procedural

due process. See id. at 711-12. Although the claim was

based in procedural due process, the Court's holding was

that the interest in reputation was neither "liberty" nor

"property" that was protected by the Due Process Clause.

See id. at 712.

Even more relevant to the case at hand is the Court's

return to the issue in Siegert v. Gilley, 500 U.S. 226 (1991).

In Siegert, the plaintiff was a clinical psychologist who had

been employed by a federally operated hospital in

Washington, D.C. He resigned his post, rather than face

termination, and found another position at a U.S. Army

hospital in West Germany. That position required

"credentialing," the securing of which required plaintiff to

ask his former employer to provide information to the Army

facility. In response to the request, his former supervisor

wrote a letter that labeled plaintiff as inept, unethical, and

untrustworthy. Plaintiff was subsequently denied the

necessary credentials and ultimately lost his pusition. He

then brought a Bivens action against his former supervisor.

See id. at 228-29. The Supreme Court rejected the

claim.

Though the Court acknowledged that defamation

injuries do indeed lead to monetary losses that flow from the

injury to reputation, it stated that "so long as such damage flows

from iniury caused by the defendant to a plaintiff 's

reputation, it may be recoverable under- state tort law but

it is not recoverable in a Bivens action." Id. at 234. "The

Statements contained in the letter would undoubtedly

damage the reputation of one in his position, and impair

his future employment prospects. But the plaintiff in Paul

v. Davis similarly alleged serious impairment of his future

employment opportunities as well as other harm." Id. The

le at ee ae aS

Iq.

Court therefore concluded that Siegert failed to allege a

constitutional deprivation. See id. at 233-34.

Donald Boyanowski also alleged that harm flowed from

the statements made about him insofar as he was unable

to receive any of the contracts for which he bid. We do not

see how his harm was of a different nature from that

alleged in Siegert. Both plaintiffs alleged harm flowing from

defamatory statements made by former employers. It is

therefore hard to see how Siegert is not fatal to the

substantive due process claim.1 Even if Siegert is construed

Strictly as a-procedural due process case, it does not

support the claim because Siegert declares that the claim of

harm flowing from the defamatory statement is not a liberty

interest protected by the Due Process Clause. Cf. Reich v.

Beharry, 883 F.2d 239, 244 (3d Cir. 1989) ("[IJn this circuit

at least, not all property interests worthy of procedural due

process protection are protected by the concept of

1. The similarity of harms in the two cases also would appear to doom any

effort to link the "stigma plus" analysis that has characterized procedural due

process cases that have arisen in wake of Paul v. Davis and concem

defamatory statements, see, e.g., Ersek v. Township of Springfield, 102 F.3d

79, 83 n.5 (3d Cir. 1996), with the substantive due process claim urged by

Mr. Boyanowski. Even if we were to entertain such an application, our

precedents are decidedly against such claims.

See, e.g., Kelly v. Borough of Sayreville, 107 F.3d 1073, 1078 (3d

Cir.1997) ("[E]ven financial injury due solely to government defamation

does not constitute a claim for deprivation of a constitutional liberty

interest."); Sturm v. Clark, 835 F.2d 1009, 1012-13 (3d Cir. 1987) ("Most,if

not all, charges of defamation are inevitably accompanied by financial

loss.").

ida

Substantive due process."); In re Selcraig , 705 F.2d 789,796

(5th Cir. 1983) (rejecting substantive due process claim arising

from stigmatization of discharged employee but

discussing potential availability of procedural name-clearing

hearing). Indeed, it would be an odd result to hold that the

CAIU was free to stigmatize Mr. Boyanowski without

providing him with procedural protections from the

statements, but was not free to make the statements

without- incurring liability under the Constitution.

Upholding the substantive due process claim, therefore.

would not be supported by Supreme Court precedent.

Neither does Mr. Boyanowski's claim find refuge in those

Third Circuit cases that have upheld substantive due

process claims. We have recognized substantive due

process claims in certain limited circumstances when the

existence of procedural due process protections is not at

issue. See, e.g., Independent Enters., Inc. v. Pittsburgh

Water & Sewer Auth., 103 F.3d 1165, 1179 (3d Cir. 1997).

We have never, however, suggested that a substantive due

process cause of action lies for the kind of claim pursued

in the District Court.

Independent Enterprises, Inc. v. Pittsburgh Water and

Sewer Authority is perhaps the most analogous precedent.

The facts in that case presented a stronger basis for a

substantive due process claim than do those in the case at

hand because there was evidence of direct interference by

executive actors with the procurement of contracts. The

plaintiff was a contractor who had entered into a consent —

decree with a city water and sewer authority. That decree

precluded the contractor's being barred base? on past

performance from bidding on city contracts. In subsequent

bids, the contractor was the low bidder on two contracts

and received neither. In one case, the contracting authority

was ordered to halt awarding contracts to the contractor

because of a cost overrun in a recent project. These actions

ae vies Se RE plat pee ee ee

130

appeared to violate the consent decree, which provided that

the contractor could not be "disqualified" based on post-

decree performance absent a hearing under local law. See

id. at 1168-69.In ruling whether those facts could be used to

State a substantive due process claim, we summarized our

substantive due process jurisprudence as foilows:

Although the Third Circuit has recognized that a

governmental deprivation that comports with procedural due

process may still give rise to a

substantive due process claim "upon allegations that -

the government deliberately and arbitrarily abused its

power," we have also held that a substantive due

process claim grounded in an arbitrary exercise of

governmental authority may be maintained only where

the plaintiff has been deprived of a "particular quality

of property interest." Although our court has suggested

that only fundamental property interests are worthy of

substantive due process protection, it has provided

little additional guidance regarding what specific

property interests should receive substantive due

process protection.

Id. at 1179 (citations omitted).

Though it ultimately "le[ft] for another day definition of

the precise contours of the ‘particular quality of property

interest entitled to substantive due process protection," id.

at 1180, the Independent Enterprises panel observed that

the infringed interest must be a concrete one:

We hav held that "ownership is a property interest worthy of

substantive due process protection,"

[DeBlasio v. Zoning Bd. of Adjustment for the Township

of West Amwell, 53 F.3d 592, 600 (3d Cir. 1995)], but

we have found that neither interest in prompt receipt

of payment for professional services provided to the

state, Reich, 883 F.2d at 244-45, nor state law

entitlement to water and sewer services, Ransom v.

Ha.

Marrazzo, 848 F.2d 398, 411-12 (3d Cir. 1988), are the

“certain quality" of property interest worthy of

substantive due process protection. We have also

strongly suggested in dictum that a student's right to

continued enrollment in a graduate program does not

rise to such a level on the ground that such an interest

bears " ‘little resemblance to the fundamental interests

that previously have been viewed as implicitly protected

by the Constitution.’ " Mauriello v. Univ. of Med. &

Dentistry of N.J.. 781 F.2d 46, 50 (3d Cir. 1986)

(quoting Regents of Univ. of Michigan v. Ewing , 474

U.S. 214, 229-30, 106 S.Ct. 507, 516, 88 L.Ed.2d 523 Powell,

J., concurring)).

Id. at 1180 (quoting Homar v. Gilbert , 89 F.3d 1009, 1021

(3d Cir. 1996), rev'd on other. grounds, 520 U.S. 924

(1997)).

Applying this precedent, we ruled that the facts in

Independent Enterprises did not give rise to a viable

substantive due process claim, observing that we had"no

difficulty" in concluding that the alleged interest was not

the sort of fundamental interest protected by substantive

due process. See id. We view the facts in Independent

Enterprises, where defendants actively prevented plaintiffs

from winning contracts in violation of a consent decree, as

constituting a more compelling claim that a protected

interest had been violated than that proffered by Donald

Boyanowski, who was never barred from having his bids

consider2>d. There is no basis in our substantive due

process precedent for according him the relief that he

seeks.

Lo ae

The District Court's jury instruction characterized the

issue at stake as Donald Boyanowski's liberty interest to

engage in the transportation business. In its denial of

CAIU's post-trial motion, the District Court defended this

characterization by referring to Meyer v. Nebraska, 262

U.S. 390 (1923). The District Court described Donald

Boyanowski's defamation-based damages as "derived from a

fundamental liberty interest to engage in the common

occupations of life protected by the Fourteenth

Amendment." Op. at 10 (citing Meyer, 262 U.S. 390, 399

(1923)).

As discussed above, our precedent has never read

substantive due process as extending as far as did the

District Court. Contrary to that court, we do not view Meyer

as helpful to the substantive due process claim before us.

Meyer involved a prosecution of a teacher who violated a

Statutory bar on the teaching of a foreign language. In

reversing the conviction on due process grounds, the

Supreme Court uttered the broad and celebrated language

about the right to engage in any of the common

occupations of life, on which the District Court's opinion

relies. See Meyer, 262 U.S. at 399. The case turned,

however, on a direct bar to the teacher's teaching, as well

as the concurrent interference in parental rights over

children. See id. at 400. The more analogous situation for

Mr. Boyanowski, if Meyer were relevant, would have

involved a prosecution targeting him for the mere act of

bidding on transportation contracts. His actual situation

was too remote from the facts of Meyer for that case to have

particular applicability.

The Supreme Court has already held that Meyer may not

be read to constitutionalize all executive actions that affect

the pursuit of a profession in any way. See Conn v.

Gabbert, 119 S. Ct. 1292 (1999). In Conn, the Court

a lh a

|loa.

rejected an attorney's attempt to claim that a_ search-

warrant executed upon him while his client was testifying

before a grand jury violated the attorney's Fourteenth

Amendment right to practice his profession. In so doing,

the Court focused on the language of Meyer on which the

District Court relies here, but specifically rejected its

application to the plaintiff 's circumstances. See id. at 1295.

We similarly view Meyer-as too slender a reed on which to

rest Mr. Boyanowski's substantive due process claim.

Moreover, the approach taken by the District Court

would subsume broad categories of tort law under the

constitutional aegis. Equating a defamatory statement that

leads to a third party's not extending a contract to a

frustrated plaintiff with the deprivation of the plaintiff 's

legal right to engage in the common occupations of life in

a manner protected by the Fourteenth Amendment goes too

far. It is true that such an action has some effect on an

individual's ability to navigate the often treacherous waters

of goverrment contracting, but to leap to the broad level of

generality necessary to classify the harm in substantive due

process terms would constitutionalize broad swaths of state

tort law.

If Donald Boyanowski's claim can survive, the same

could be said for any number of mundane state tort cases

that lack a clear constitutional basis. In addition to

implicitly overruling the Supreme Court's holding in Siegert,

upholding the verdict would ignore the Svupreime Court's

twin commands that the Fourteenth Amendment not

become a font of tort law that supplants state systems, see

Paul, 424 U.S. at 701, and that the cause of action

encompassed by substantive due process not be expanded

without extreme care, see Collins, 503 U.S. at 125.

Because Donald Boyanowski's claim, the record

evidence, and the District Court's jury instruction all point to a

state law defamation claim and not a constitutional substantive

Ila.

due process claim, we will reverse the judgment entered on

the jury verdict in favor of Mr. Boyanowski on_ his

substantive due process claim against the CAIU. Our ruling

in this regard moots his cross-appeal as to the District

Court's grant of qualified immunity to Nagle.

III.

We turn to Dorothy Boyanowski's jury verdict for civil

conspiracy against Frye and Nagle. The defendants offer an

array of arguments in support of our setting aside the

verdict. First, they submit that the jury's verdict in their

favor as to the underlying tort of tortious interference with

contract requires dismissal of the civil conspiracy verdict.

Second, they contend that the defense verdict on the tort

claim vitiates any award of damages on the conspiracy

claim. Third, the defendants argue that they had no legal

Capacity to conspire; they submit that because under

Pennsylvania precedent a corporation cannot conspire with

itself, Dorothy Boyanowski had to prove that Frye or Nagle

was acting outside the scope of his duty for personal

reasons. Fourth, the defendants claim that there was no

evidence of a concerted action or common scheme

necessary to sustain a conspiracy finding. Fifth, the

defendants assert that no evidence was presented

indicating that Frye and Nagle willfully engaged in unlawful

conduct, and that such evidence is a prerequisite for the

removal of their statutory immunity under Pennsylvania

law. Furthermore, the defendants submit. that Frye and

Nagle should have been given absolute immunity as"high

public officials." Finally, the defendants claim that there

was insufficient evidence to support the jury's verdict

against them on the claim of. civil conspiracy.

Many of these assiynments of error pertain to the

sufficiency of the evidence presented by Ms. Boyanowski at

Xa.

trial. Unfortunately, rather sol provide any citations to the |

record in their brief on appeal, which consisted mostly of

assertions that were unsupported by citation. legal or

otherwise, the Boyanowskis' counsel elected simply to

submit several volumes of trial transcript, refer to the trial

record as a whole, and unhelpfully tell this Court that "only

a review of the entire record can totally illuminate the entire

picture heard by the jury." Appellees’ Br. at 14. At oral

argument the panel afforded counsel a second opportunity

to point to specific instances in the record that supported

the jury's findings in this matter. Although the evidence in

the record finally cited by the Boyanowskis' lawyer is

exceedingly thin, possibly to the point of justifying reversal

on insufficiency grounds alone, we need not consider the

weight of the evidence presented at trial because the issue

can ultimately be disposed of on the defendants' first

assignment of error.

In their brief, the defendants point to Pennsylvania

precedent that holds that a claim of civil conspiracy cannot

be pled without also alleging an underlying tort. See, e.g.,

Nix. v. Temple Univ., 596 A.2d 1132, 1137 (Pa. Super. Ct.

1991); Pelagatti v. Cohen, 536 A.2d 1337, 1342 (Pa. Super.

Ct. 1987). They fail, however, to cite authority for the

proposition that once an underlying tort has been alléged,

only a finding that the underlying tort has occurred will

allow an appellate court to sustain a similar finding on the

civil conspiracy charge. The rule that civil conspiracy may

not exist without an underlying tort is a common one. See

In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d

781, 789 & n.7 (3d Cir. 1999) (collecting cases). Indeed, "we

are unaware of any jurisdiction that recognizes civil

conspiracy as a cause of action requiring no separate

tortious conduct." Id. at 789. It is not surprising that there

are few cases dealing with the sort of mixed verdict we have

(Ga.

here, as a jury would not logically be expected to determine

that civil conspiracy occurred, but that the underlying tort

did not. Candidates for such verdicts would usually be

screened out at the siimmary judgment or pleading stage,

and that is indeed where most precedents that state the

underlying tort rule are to be found. We must therefore

predict whether the Pennsylvania Supreme Ccurt would

apply a rule that is normally employed at the pleading stage

to Overturn a jury verdict for civil conspiracy in a plaintiff 's

favor. We predict that. it would.

In predicting how a matter would be decided under state

law we examine: (1) what the Pennsylvania Supreme Court

has said in related areas; (2) the decisional law of the

Pennsylvania intermediate courts; (3) federal appeals and

district court cases interpreting the state law; and (4)

decisions from other jurisdictions that have discussed the

issues we face here. See Wiley v. State Farm Fire & Cas.

_ Co., 995 F.2d 457, 459-60 (3d Cir. 1993). While we lack a

clear statement from the Pennsylvania Supreme Court on

the precise question at issue, a panel of the Pennsylvania

Superior Court recently decided a case that would

decisively resolve the issue if we follow the resulting

precedent. See GMH Assoc., Inc. v. Prudential Realty Group,

CB,___ A.2d_, No. 198 EDA 1999, 2000 WL 228918 (Pa.

Super. a March s 2000).

GMH arose out of a failed real estate transaction. The

trial court, sitting without a jury, found defendants liable to

plaintiffs for breach of contract, breach of duty to negotiate

in good faith, promissory estoppel, fraudulent

misrepresentation, fraudulent non-disclosure, and civil

conspiracy. See id. at *5. On appeal, the Pennsylvania

Superior Court concluded that no fraud had actually

occurred. See id. at *10. The claim of fraud was the

underpinning for the civil conspiracy claim. See id. at *13.

Because the fraud claim was set aside, the court held that

0 &

the civil conspiracy claim could not survive:

[Plaintiffs'] conspiracy claims were based on the allegation that

all defendants conspired to defraud [plaintiff]. Because we

conclude that no fraud was committed, we correspondingly find

that no civil conspiracy to defraud occurred. See generally

[Rutherford v. Presbyterian-Univ. Hosp., 612 A.2d 500,

508 (Pa. Super. 1992)] (citing Rose v. Wissinger, 294

Pa. Super. 265, 439 A.2d 1193 (1982) (where

complaint fails to set forth claim. for defa:nation or

outrageous conduct causing emotional distress, there

could be no conspiracy to commit those acts); and

Raneri v. DePolo, 65 Pa.Cmwilth. 183, 441 A.2d 1373, 1376

(Pa.Cmwith. 1982) (under Pennsylvania law,

when a party fails "to sufficiently allege infother]

counts any unlawful act or unlawful means" the

conspiracy claim must also fail when it is based on

these claims)).

Id.

As the quoted passage makes clear, the court did not

dismiss the conspiracy claims based on an independent

evaluation of their viability in light of the record developed

by the trial court. Rather, the failure of the underlying

fraud claim sufficed as a matter of law to vitiate the finding

of civil conspiracy notwithstanding the fact that it had been

successfully pled as an independent cause of action.

An intermediate appellate state court's decision"is a

datum for ascertaining state law which is not to be

disregarded by a federal court unless it is convinced by

other persuasive data that the highest court of the state

would de>ide otherwise." West v. American Telephone & Tel.

Co., 311 U.S. 223, 237 (1940). We not only conclude that

GMH is persuasive on its logic, but rather than finding

sufficient contrary persuasive data, we find other factors

Wa.

that counsel that we follow the GMH _ court.

The precept employed by GMH is logically sound. It is

sensible that the rule requiring the existence of an

underlying tort in the pleading stage similarly requires that

the tort b> proven if a civil conspiracy claim is to prevail. To

be sure, there are arguments to the contrary. One could

argue the reverse inference and maintain that the jury's

finding that there was a civil conspiracy against Dorothy

Boyanowski that caused damage means that the jury's

ruling for the defendants in the tortious interference of

contract claim was actually the legally incorrect one.

Another argument is that the two causes of action,

whatever their linkage in the pleading stage, ace distinct.

Inconsistent jury verdicts are an unfortunate fact of life in

law, and should not, in and of themselves, be used to

overturn otherwise valid verdicts. Cf. Mosley v. Wilson, 102

F.3d 85, 90-91 (3d Cir. 1996) (ruling that district court

erred as a matter of law when it directed judgment

notwithstanding the jury's verdict on one claim on the sole

ground that it was inconsistent with the jury's verdict on

another claim).

We nonetheless believe that the defendants’ reading is

the better one in light of the nature of civil conspiracy.

"Since liability for civil conspiracy depends on performance

of some underlying tortious act, the conspiracy is not

independently actionable; rather, it is a means for

establishing vicarious liability for the underlying _ tort."

Halberstam v. Welch, 705 F.2d 472, 479 (D.C. Cir. 1983). A

verdict on civil conspiracy should yield to a finding for the

defendant on the underlying tort because the cause of

action is wholly subordinate to the underlying _tort's

existence. We also are supported by the fact that courts in

other jurisdictions have made similar holdings to that in

GMH when faced with similar circumstances. See K&S

Partnership v. Continental Bank, N.A., 952 F.2d 971, 980

ota.

(8th Cir. 1991); see also Akins v. Zeneca, Inc. , 62 F.3d

1417, 1995 WL 452087, (6th Cir. July 27, 1995) (affirming

district court's dismissal of civil conspiracy claim after close

of plaintiff 's evidence because of failure to prove underlying

tort).

In light of the clear statement by the Pennsylvania

Superior Court, practice in other jurisdictions, and what we

perceive as the logical rule, we predict that if faced with

this matter, the Pennsylvania Supreme Court would reverse

Dorothy Boyanowski's judgment for civil conspiracy. We

therefore need not reach the defendants’ other arguments

for reversing the verdict.

The judgment of the District Court will be reversed, with

direction to enter judgment in favor of the defendants on all

counts.

A True Copy: Teste

Clerk of the United States Court of heiiaill

for the Third Circuit

24a

APPENDIX “B” MEMORANDUM AND ORDER OF THE

DISTRICT COURT DATED APRIL 27, 1998

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF PENNSYLVANIA

DONALD E. BOYANOWSKI: CIVIL

individually; BOYO : NO.1:CV-94-1252

TRANSPORTATION ;

SERVICES INC., DOROTHY:

A. BOYANOWSKI; and :

MICHAEL P. LABALOKIE :

Plaintiffs

v.

CAPITAL AREA

INTERMEDIATE UNIT;

JOHN E. NAGLE; ED

FRYE; ROGER

MORRISON; MARK

BAUER; and THE WEST

PERRY SCHOOL

DISTRICT

Defendants

MEMORANDUM

Before the court are motions for judgement as a matter

. of law and for a new trial, filed by Defendants Capital Area

Intermediate Unit, John E. Nagle and Edward T Frye

(collectively, “Defendants”). The motions have been briefed

Ha

and are ripe for disposition.

1. Background

A brief background of the parties and claims is as

follows: Plaintiff Donald Boyanowski worked as a

Transportation Supervisor for Capital Area Intermediate Unit

(“CAIU”) for over twenty years. When he retired from CAIU,

he established Boyo Transportation Services, Inc (“Boyo”) to

compete with CAJU for contracts with school districts to

provide transportation for special education students. Plaintiff

Dorothy Boyanowski also worked for CAITU and her contract

was not renewed when her husband Donald set up Boyo.

Plaintiff Michael Labalokie was another driver for CAIU.

Defendant John E Nagle was CAIU’s executive director until

July 1993, and Defendant Ed Frye succeeded Nagle as

executive director. Prior to July 1993, Frye was CAIU’s

assistant executive director.- Boyo’s attempt to garner

transportation contracts from school districts was unsuccessful.

Plaintiff's filed the instant action, alleging several

federal and state claims against Defendants. The court disposed

of several of Plaintiff's claims through pretrial motions. On

June 23, 1997, ajury trial commenced on the remaining claims

in the case. The claims were as follows: (1) subsiantive due

process claims of Donald Boyanowski, Dorothy Boyanowski

and Boyo against CAIU, Nagle and Frye; (2) a tortious

interference with contract claim of Dorothy Boyanowski

against CAIU, Nagle and Frye; (3) a tortious interference with

contract claim of Michael Labalokie against Nagle; (4) civil

conspiracy claims of Donald Boyanowski, Dorothy

Boyanowski and Boyo against CAIU, Nagle and Frye; and (5)

a First Amendment retaliation claim of Labalokie against

CAIU. See June 2, 1997 Order. During the trial, the court

partially granted Defendants’ motion for judgment as a matter

of law, further limiting the claims submitted to the jury.

Bo.

Originally, three separate actions were filed. The court

consolida.ed the actions prior to trial.

These claims included conspiracy claims.

At the conclusion of the trial, the jury found in favor of

Defendants on all of Labalokie and Boyo’s claims. The jury

found that CAIU and Nagle violated Donald Boyanowski’s

substantive due process rights and awarded damages against

CAIU in the amount of $50,000, compensatory damages

against Nagle in the amount of $100,000 and pvniti /e damages

against Nagle in the amount of $100,000. The jury found that

Nagle and Frye conspired to tortuously interfere with Dorothy

Boyanowski’s contract. They awarded damages against Nagle

in the amount of $50,000 and against Frye in the amount of

$100,000. Nagle and Frye were found not to be liable on

Dorothy Boyanowski’s tortious interference contract claim.

Defendants seek renewed judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50(b) and a new

trial pursuant to Federal rule of Civil Procedure 59. In their

Rule 50 (b) motion, Defendants argue for judgment as a matter

of law on Donald Boyanowski’s substantive due process claim

and Dorothy Boyanowski’s civil conspiracy claim and assert

that the damages are excessive , speculative and without basis

in law or evidence. In their motion for a new trial, Defendants

argue that: (1) the jury verdict went against the weight of the

evidence; (2) there were prejudicial evidentiary errors at trial,

(3) there were defects in the jury instructions; and (4) the

damages were excessive, speculative and without basis in law

or evidence.

II Standard of Review

In deciding a renewed motion for judgment as a matter

of law pursuant to Rule 50(b), the court follows the same

standards as it did for the

Alo G

In their reply brief, Defendants appear to argue that the

statute of limitations has expired on the substantive due process claim.

(Defs.’ Reply Br. At 8.) The court will not address this argument, as parties

may not raise new issues in a reply brief. See Sistrunk v. Vaughn, 96 F.3d

666, 671 n.4 (3d Cir. 1996); Hunt v. Nuth, 57 F.3d 1327, 1338 (4" Cir.

1995), cert. denied, U.S. , 116 S. Ct. 724 (1996).

original motion for judgment as a matter of law under Rule

50(a). See Geldermann, Inc. v. Advanced Mgmt. Consultants,

Inc., 27 F.3d 307, 310 n.4 (7" Cir. 1994). The Third Circuit has

articulated the standard for deciding a motion for j idgment as

a matter of law.

Such motion should be granted only if,

viewing the evidence in the light most

favorable to the non-movant and, giving it

the advantage of every fair and

reasonable inference, there is insufficient

evidence from which a jury could

reasonable find liability. In determining

whether the evidence is sufficient to

sustain liability, the court may not weigh

the evidence, determine the credibility of

witnesses, or substitute its version of the

Facts for the jury’s version.

Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.

1993). ;

The authority to grant a new trial rests in the discretion

of the court. Allied Chem. Corp. v Daiflon, Inc., 449 U.S. 33,

36 (1980) (per curium). The standard of review depends on the

reasons a litigant requests a new trial. In the instant case,

Defendants propound several arguments as to why the court

should grant a new trial. The court will discuss the each of the

- Sla.

appropriate standards along with the Defendant’s arguments in

Section III (B). :

Ill Legal Analysis

At the outset, the court notes that Defendants do not cite

the trial record, nor have they submitted a transcript for the

court’s review. Without a transcript and with Plaintiffs and

Defendants representing disparate versions of the trial

testimony, the court is unable to judge Defendants arguments

relating to the sufficiency of the evidence. Therefore, to the

extent that Defendants’ arguments rest on a lack of sufficiency

of the evidence, the court will deny the motion. See Lightning

Lube, 4 F.3d at 1166 (stating that, for judgment as a matter of

law motion, court views evidence in li ght most favorable to non

moving party); Anderson v. Radisson Hotel Corp., 834 F Supp.

1364, 1369 n.3 (S.D. Ga. 1993) (stating that it is the movant’s

responsibility to search record and identify those portions

which support its argument). The court has a transcript of the

jury instructions, and, therefore, will be able to assess

Defendants’ jury instruction argument. The court will also

address Defendants’ arguments that pertain to purely legal

issues, as a transcript is not necessary for decision on thos

matters. :

A. Renewed Motion for Judgment as a

Matter of Law

The court will first address Defendants’ arguments for

judgment as a matter of law on Donald Boyanowski’s

substantive due process claim. It will then address Defendants’

arguments as they pertain to Dorothy Boyanowski’s civil

conspiracy claim. Finally, it will address Defendants’ argument

regarding the jury verdict.

Ba.

Defendants assert that they “generally dispute that the trial

testimony may be reasonable characterized as set forth wm Plaintiff's

brief...which is contrary to Defendant’s recollections of the trial testimony.”

(Defs.’ Reply Br. At 4.) Such an assertion is insufficient to carry their

burden on the motions.

1. Substantive Due Process

Defendants assert several reasons why they should

receive ‘udgment as a matter of law on Donald Boyanowski’s

substantive due process claim. Defendants’ legal arguments on

this issue are: (1) Plaintiffs failed to state a cognizable

substantive due process claim; (2) Nagle is entitled to qualified

immunity; and (3) there should be no CAIU liability on this

claim.

Defendants contend that Donald Boyanowski’s claim

was one of a failure to obtain future contracts with school

districts based on defamation by Defendants and tiat such an

assertion does not rise to a substantive due process claim. A

person’s substantive due process rights are violated by

“irrational government action, or government action that is

motivated by bias, some improper purpose, or bad faith.” Ersek

v Township of Springfield, 102 F.3d 79, 83 n.4 (3d Cir. 1996).

Historically, courts have recognized the right to due process to

protect individuals from the arbitrary exercise of government

power. See Daniels v Williams, 474 U.S. 327, 331 (1986). A

precondition of bringing a substantive due process claim,

however, is a deprivation of a liberty of property interest. See

id.

The court determined that Plaintiffs stated a cognizable

liberty interest and pled sufficient facts to demonstrate a

substantive due process violation with respect to that liability

interest. See April 25, 1995 Memorandum and Order. The

Supreme Court case of Board of Regents v Roth, 408 U.S. 564

Aa.

(1972), is the starting point for the analysis. In Roth, the

Supreme Court stated:

Defendants assert this argument as one of mixed fact and

law. They argue that Donald Boyanowski has not demonstrated a substantive

due process claim, factually or legally. Since Defendants do not cite to the

record to support its argument, court will address the legal arguments only.

While this court has not attempted to

define with exactness the liberty...

Guaranteed [by the Fourteenth

Amendment], the term has received much

consideration and some of the included

things have-been definitely stated.

Without doubt, it denotes not merely

freedom from bodily restraint but also the

right of the individual to contract, to

engage in any of te common

occupations of life, to acquire useful

knowledge, to marry, establish a home

and bring up children, to worship God

according to the dictates of his own

conscience and generally to enjoy those

privileges long recognized...as

essential to the orderly pursuit of

happiness by free men.

Id. At 572 (quoting Meyer v. Nebraska, 262 U.S. 390, 399

(1923)). The Court concluded that a non-tenured professor who

did not have his contract renewed had an insufficient interest to

state a due process claim. The Court held, however, that certain

circumstances relating to government employment implicate

due process protections. It stated when a government employer

bases the non-renewal of a contract on charges that the

employee is “guilty of dishonesty or immorality” or impinges

Za.

upon the employee’s “good name, reputation, honor or

integrity,” then the employee must receive notice and an

opportunity to be heard. Id. At 573. The Court went on to state

that barring a government employee from other public

employment would implicate due process protections, “for [t]o

be deprived not only of present government employment but of

future opportunity for it is certainly no small injury.” Id. At 574

(quoting Joint Anti-Facist Refugee Comm. V. McGrath, 341

U.S. 123, 185 ( 1951) (Jackson, J. concurring)).

Damage to reputation alone is not a deprivation of a

liberty or property interest protected by the due process clause.

See Siegert v. Gilley, 500 U.S. 226, 234 (1991); Paul v. Davis,

424 U.S. 693, 708-09 (1976). In order to assert a due process

claim under this line of reasoning, a litigant must demonstrate

reputational damage plus an extinguishment or alteration of a

right. See Sturm v. Clark, 835 F.2d 1009, 1013 (3d Cir. 1987).

For example, a liberty interest is implicated when a suspension

or debarinent from bidding on government contracts is based

upon charges of fraud or dishonesty. See Labalokie v. Capital

Area Intermediate Unit, 926 F. Supp. 503, 508 (M.D. Pa. 1996)

This concept has been articulated by several circuit courts. See |

Bank of Jackson County v Cherry, 980 F.2d 1354, 1357-58

(11" Cir. 1992); Sutton v. United States Dep’t of Housing and

Urban Dev., 885 F.2d 471, 475 (8" Cir. 1989); Atl, Inc v

United States,736 F.2d 677, 683 (Fed. Cir. 1984) Transco

Security, Inc. v. Freeman, 639 F.2d 318, 321 (6" Cir. 1981);

Old Dominion Dairy Products, Inc. v. Secretary of Defense,

631 F.2d 953, 962-63 (D.C. Cir. 1980). As such, the court

determined that Donald Boyanowski sufficiently stated a liberty

interest.

\

In addition to an interest in the government contracts area,

the Third Circuit has articulated a protected interest, to a certain extent, in

future employment. See Robb v. City of Philadelphia, 733 F.2d 286, 294 (3d

Cir. 1984) (An employment action implicates a fourteenth amendment

Aa.

liberty interest only if it (1) is bases on a charge against [the individual that

might seriously damage his standing and associations in the community... for

example that he had been guilty of dishonesty, or immorality’ or (2)

impose[s] on him a stigma of other disability that forecloses his freedom to

take advantage of other employment opportunities. Stigma to

(Continued)

While courts have held that litigants have due process

rights in bidding for government contracts without stigma, the

application has occurred in the context of procedural due

process. See id. Not every interest worthy of procedural due

process protection is afforded substantive due process

protection. See Reich v. Beharry, 883 F.2d 239, 244 (3d Cir.

1989). Only federally protected rights are afforded substantive

due process protection. See Ranson v. Marrazzvu, 848 F.2d 398.

411 (3d Cir. 1988). Moreover, the interest must be a

fundamental interest protected by the Constitution. See

Independent Enterprises v. Pittsburgh Water and Sewer Auth.,

103 F.3d 1165, 1180 (3d Cir. 1997). In the substantive due

process context, the Third Circuit has stated that ownership is

a property interest worthy of a substantive due process

protection. See DeBlasio v. Zoning Board of Adjustment, 53

F.3d 592, 600 (3d Cir. 1995). It has also indicated that First

Amendment freedom of expression is an interest worthy of

substantive due process protection. See Neiderhiser v. Borough

of Berwick, 840 F.2d 213, 217-18 (3d Cir. 1988). The Third

Circuit has stated that expectations of payment of attorneys’

fees from the state, see Reich, 883 F.2d at 244-45 and receipt

of utility service, see Ransom, 848 F.2d at 411-

reputation alone, absent some accompanying deprivation of present or future

employment, is not a liberty interest protected by the fourteenth

amendment.”) (internal citations omitted). This protection is not unlimited,

however, as the Third Circuit has clarified that, “[t}he possible loss of future

employment opportunities is patently insufficient to satisfy the requirements

IIA.

imposed by Paul that a liberty interest requires more than a mere injury to

reputation.” Clark v. Township of Falls, 890 F.2d 611, 620 (sc Cir. 1989).

Since the court based its decision that Donald Boyanowski stated a liberty

interest on government contracts, rather than future employment

opportunity, the court need not determine whether his future employment

opportunities were sufficient to state a liberty interest.

12, are insufficient to state a protected interest for substantive

due process purposes. The Third Circuit also expressed doubt

that enrellment in a graduate program is an appropriate interest

to be afforded substantive due process protection. See

Mauriello v. University of Medicine and Dentistry, 781 F.2d

46, 52 (3d Cir. 1986).

The Third Circuit stated that a substantive due process

claim may lie only where a plaintiff has been “deprived of a

particular quality of property interest.” DeBlasio, 53 F.3d at

600. The court does not read this statement to foreclose actions

where a plaintiff brings a claim involving a liberty interest, as

the Supreme Court has recognized that fundamental liberty

interests are also worthy of substantive due process protection.

See Moore v. City of East Cleveland, Ohio, 431 U.S. 494 503

(1977); Roe v. Wade, 410 U.S. 113, 153 (1973); Meyer, 262 —

U.S. at 399-400. In the instant case, Donald Boyanowski’s

liberty interest derived from the fundamental liberty interest to

engage in the common occupatic»s of life protected by the

Fourteenth Amendment. See Meyer, 262 U.S. at 399. Since the

interest was a fundamental one, deriving from the Constitution,

Donald Boyanowski has stated a claim for substantive due

process. The court will deny Defendants’ motion to the extent

that it argues that Donald Boyanowski did not assert a

cognizable substantive due process claim.

The court rejects Defendants’ additional arguments

why, apart from the prima facie elements of a substantive due

process claim, the jury verdict should not stand. Defendants

argue that common law privilege concepts should apply to the

substantive due process claim, which would shield Defendants

3a.

from liability. The court rejects this argument for the reasons

set forth in Section III(B)(3), infra. Defendants further argue

that the verdict in favor of Defendants on Boyo’s substantive

due process claim demonstrates that Donald Boyanowski did

not receive any tangible injuries and that his only in‘uries could

have been reputational , which would be insufficient to support

a due process claim. The jury considered the claims of each

Plaintiff separately and concluded that Donald Boyanowski’s

claim rose to the level of a substantive due process deprivation,

while Boyo’s did not. The court will not overturn the jury’s

careful consideration of the separate claims, nor second guess

its reasoning, based on Defendants’ supposition that there could

be no taugible loss to Donald Boyanowski, individually.

The court concluded that Donald Boyanowski and Boyo

raised cognizable substantive due process claims and allowed

the claims to go to the jury. Defendants argue that the claims

should not have gone to the jury for Defendant Nagle because

he was entitled to qualified immunity.

Defendants argue that their statements are pro:ected under

the First Amendment and that there is no liability unless the statements were

made with knowing falsity or reckless disregard to the truth or falsity of the

statements. The court need not address the merits of this argument, as

Plaintiffs contend that the record demonstrates knowing falsity. Thus, even

if First Amendment protection is applicable, Plaintiffs contend that, under

the facts of the case, Defendants have lost the protection. In the absence of

a transcript and viewing the evidence in the light most favorable to

Plaintiffs, the court will not grant Defendants’ motion on this argument.

Qualified immunity protects an official from liability as

long as his “conduct does not violate clearly established

statutory rights or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). Defendants argue that Nagle is entitled to

qualified immunity because no clearly established law has been

violated. Specifically, they argue that “the law has been unclear

4a.

that a ‘stigma plus’ scleen form the basis for a substantive

due process claim or that reputational interests are otherwise

accorded substantive due process protection.” (Defs.’ Br. at

10.)

~ The parameters of an interest sufficient to implicate a

protected interest for a substantive due process claim have not

been clear. Third Circuit precedent discusses substantive due

process in the context of property interests, rather than liberty

interests, and has stated as recently as 1997 that it “will leave

for another day definition of the precise contours of the

‘particular quality of property interest’ entitled to substantive

due process protection.” Independent Enterprises, 103 F.3d at

1180. The Third Circuit also has recognized that in a “stigma

plus” case, such as the one here, “what satisfies that ‘plus, ’...is

uncertain.” Ersek v. Township of Springfield, 102 F.3d 79, 83

n.5 (3d Cir. 1996). Additionally, the “stigma plus” liberty

interest has been generally applied to the context of procedural

due process, rather than substantive due process. Another court

within our Circuit has come to the opposite conclusion from

this court — that the liberty interest implicated by Roth extends |

only to procedural due process and not substantive due process.

See Austin v. Neal, 933 F. Supp. 444, 455-56 (E.D. Pa. 1996)

(citing In re Selcraig, 705 F.2d 789, 796-97 (5™ Cir. (1983)).

Since the liberty interest in this case falls within tise scope of

interests not directly addressed by the Third Circuit, and the

courts are divided on the viability of a substantive due process

“stigma plus” claim, the court finds that the right is not clearly

established for qualified immunity purposes. Therefore, the

court will grant Nagle qualified immunity on the substantive

due process claims.

Defendants also argue that CAIU should not be held

liable for a violation of Donald Boyanowski’s substantive due

process rights. Without a record, the court will not address their

arguments based on the insufficiency of the evidence of an

a

a-

established policy or Ss by CAIU that would be the root

of any actionable conduct. The court will address Defendants’

legal argument that, in order for CAIU to be liable due to a

policy maker’s decision, the policy maker needs to act with

conscious awareness that lis actions might result in the

deprivation of a constitutional right. Defendants cite Board of

the County Comm’rs v. Brown, _U.S.___ , 117 S. Ct. 1382

(1997) for this proposition. Brown involved a claim under

Section 1983 against a municipality; the theory of recovery was

that the municipality was liable for injuries caused due to the

use of excessive force used by a police officer. See id. at 1386.

The municipality’s liability rested solely on the sheriff's

facially lawful hiring and training of the police officer. See id.

at 1389. The Supreme Court held that a municipality is not

liable unless “the municipality itself is the ‘moving force’

behind the plaintiff's deprivation of federal rights.” Id. at 1386

(quoting Monell v. New York City Dep’t of Social Services,

436 U.S. 658, 694 (1978)). “That is, a plaintiff must show that

the muricipal action was taken with the requisite degree of

culpability and must demonstrate a direct causal link between

the municipal action and the deprivation of federal rights.” Id.

at 1388. The Court stated that action taken by the

municipality’s authorized decision maker that violates federal

law leads to the conclusion that the municipality acted culpably

and was the moving force behind the injury. See id. at 1389.

Since the action taken by the sheriff in Brown did not violate

federal law, The Court addressed the question or whether a

single facially lawful decision could give rise to municipal

liability. The Court cautioned that, “[w]here a plaintiff claims

that the municipality has not directly inflicted an injury, but

nonetheless has caused an employee to do so, rigorous

standards of culpability and causation must be applied to ensure

that the municipality is not held liable solely for the actions of

its employees.” Jd. In such a situation, a plaintiff “must

demonstrate that the municipal action was taken with

Aba.

‘deliberate indifference’ as to its known or obvious

consequences.” Id. at 1390 (quoting City of Canton Ohio, Ohio

v. Harris, 489 U.S. 378, 388 (1989)). The Court noted that

““[d]eliberate indifference’ is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.” Id. at 1391. Because the

plaintiff did not demonstrate that the sheriff's hiring decision

“reflected a conscious disregard for a high risk that [the police

officer] would use excessive force in violation of [the

plaintiff's] federally protected right,” the Court held that no

municipal liability existed. Id. at 1394.

Brown does not support Defendants’ argument that

CAIU is devoid of liability. This is not a situation in which

CAIU’s decision maker acted in a facially lawful manner.

Rather the unlawful actions in the instant case stemmed from

the actions of the executive director of CAIU. Following the

reasoning of Brown, the unlawful action of CAIU’s highest

officer is sufficient action to infer a violation by CAIU itself.

The court need undertake the analysis pertinent to a facially

lawful decision because , in the instant case, there was no

facially lawful decision made by CAIU’s executive director.

Therefore, the court will deny Defendants’ motion as to

CAIU’s liability.

2. Civil Conspiracy Claim

Defendants argue that the jury verdict in favor of

Dorothy Boyanowski and against Nagle and Fry on her claim

of conspiracy to tortuously interfere with her contract cannot

stand based on legal standards. Defendants argue that, since

Nagle and Frye were found not to have tortuously interfered

with her contract, the jury could not have found that they

conspired to do so. Additionally, Defendants argue that, in the

absence of an actual tortious interference with contract, there

are no legal damages, a necessary element of the civil

conspiracy claim. Finally, Defendants argue that Nagle and

31a

Frye should be accorded immunity under Pennsylvania’s

Political Subdivision Tort Claims Act and as high public

officials.

Defendants also argue that there was insufficient

evidence for the jury’s verdict on this claim, which the court

cannot address without a transcript.

Defendants first argue that it was error for the jury to

find against Nagle and Frye on the civil conspiracy claim when

Nagle and Frye were found not to be liable for tortious

interference with contract. In support of their argument,

Defendants cite two cases which stand for the proposition that,

“absent a civil cause of action for a particular act, there can be

no cause of action for civil conspiracy to commit that act.”

Pellagatti v. Cohen, 536 A.2d 1337, 1342 (Pa. Super. 1987). In.

both cases that Defendants cite in support of their argument, the

court dismissed the civil conspiracy claims because the

complaints failed to state a claim. See id. (Finding litigant

conceded lack of underlying cause of action); Rose_v.

Wissinger, 439 A.2d 1193, 1199 (Pa. Super. 1982) (finding no

basis for underlying cause of action). In the instant case, the

complaint sufficiently stated a claim for tortious interference

with contract. Nagle and Frye were ultimately found not to be

liable on this claim, but the jury found them liable on the civil

conspirecy claim. Defendants cite no cases holding that a

litigant must prevail on the underlying tort in order to recover

for civil conspiracy. As such, the court will not grant

Defendants relief on this argument.

Defendants next argue that Dorothy Boyanowski is

unable to demonstrate actual legal damages, a necessary

element of a civil conspiracy claim. Defendants state that

Dorothy Boyanowski cannot demonstrate actual damages since

the jury found that no tortious interference with Ler contract

had occurred. It is true that a plaintiff must demonstrate actual

Ba.

legal damages in order to recover for civil conspiracy._See

Pelagatti, 536 A.2d at 1346. The court instructed the jury as

such and further instructed that it “shall award actual damages

only for those injuries which you find plaintiffs have proven by

a preponderance of the evidence to have been the direct result

of the conducts of the defendants.” (Jury Charge at 19, 23.) The

jury awarded Dorothy_Boyanowski damages pursuant to the

jury instructions. Defendants do not cite any cases that stand for

the proposition that legal damages for civil conspiracy are only

those damages that result from the underlying tort. Civil

conspiracy is a separate tort, and the court finds no reason to

hold that damages cannot flow from the civil conspiracy itself.

As such. the court will not disturb the jury’s verdict on

damage:.

Defendants’ immunity arguments rest on

Pennsylvania’s Political Subdivision Tort Claims Act, 42 Pa.

_Cons. Stat. 8541 et seg. and their status as high public

officials. Immunity under the Political Subdivision Tort Claims

Act is not available to an employee whose conduct constitutes

wilful misconduct. 52 Pa. Cons. Stat. 8550. Willful misconduct

exists when an actor desired to bring about the result that

followed from his actions or at least was aware d:at is was

substantially certain to follow, so that desire can be implied.

See Williams v City of Philadelphia, 569 A.2d 419, 421 (Pa.

Commw.Ct. 1990) (quoting Evans v. Philadelphia Transp. Co.,

212 A.2d 440, 443-44 (Pa 1965)). It is synonymous with the

term “intentional tort.” See Renk v. City of Pittsburgh, 641

A.2d 289, 292 (Pa. 1994). Given that the jury could have

reasonably inferred willful misconduct on the part of Nagle and

Frye, the court rejects Defendants’ immunity argument based

on the Political Subdivision Tort Claims Act.

Likewise, the court rejects Defendants’ arguments that

Nagle and Frye should be granted absolute immunity as high

public officials. The doctrine of absolute immunity for high

public officials is a Pennsylvania common law doctrine that:

Ala

exempts a high public official from all civil

suits for damages arising out of false

defamatory statements and even from

statements or actions motivated by malice,

provided the statements are made

or the actions are taken in the course of the

officials duties or powers and within

the scope of authority... The

doctrine of absolute privilege rests upon

the ...idea that conduct which other aise

would be actionable is to escape liability

because the defendant is acting in

furtherance of some interest of social

importance, which is entitled to protection

even at the expense of uncompensated 7

harm to the plaintiffs reputation.

Linder v. Mollan, 677 A.2d 1194, 1195 (Pa. 1996) (internal

quotations and citations omitted). The determination of whether

an individual qualifies as a high public official is made on a

case basis and depends on “the nature of his duties, the

importance of his office, and particularly whether or not he has

policy-making functions.” Montgomery v. city of Philadlephia,

140 A.2d 100, 105 (Pa. 1958). Some examples of high public

officials are township supervisors, mayors, city comptrollers,

and district attorneys. See Linder, 677 A.2d at 1198-99. Some

examples of positions that are not high public officials are

police officers, high school principals, and school district

employees. See id, at 1197 n.2. Apart from Defendants’ bare

assertion that the executive director and acting executive

director of CAIU are similar to a mayor or school

superintendent, Defendants do not demonstrate that Nagle and

Frye holJ important policy-making public positions that should

afford them status as high public officials. Therefore, the court

will not accord Nagle or Frye absolute immunity as high public

Ria

Apa.

officials.

3.) Amount of Damages

Defendants argue, both in their renewed motion for

judgement as a matter of law and in their motion for a new trial,

that the amount of damages was excessive, speculative, and

without basis in law or evidence. Plaintiffs contend that the

verdict is well-supported by-the record. “[I]f the judge is not

convinced that there has been a miscarriage of justice, then it is

his or her duty to respect the jury’s verdict. for a court to

disturb a jury verdict, the damages assessed by the jury must be

so unreasonable as to offend the conscience of the Court.”

Waldorf v. Shuta, 916 F. Supp. 423, 425-26 (D.N.J. 1996)

(internal citations omitted), aff'd F.3d , 1998 WL

173103 (3d Cir. Apr. 15, 1998). In the absence of a trial record

of review, the court will not disturb the jury verdict.

A. Motion for a New Trial

Defendants allege several reasons why the Court should

grant a new trial: (1) the verdict was against the weight of the

evidencv, shocked the conscience and resulted in a miscarriage

of justice; (2) Defendants were substantially prejudiced by

evidentiary errors at trial; (3) the jury instructions were

defective; and (4) damages were excessive, speculative and

without basis in law or evidence. 3

1.) Jury Verdict and the Weight of the Evidence

Defendants argue that the verdict goes against the

weight of the evidence. The Court has discretion to grant a new

trial on this ground “only if the jury’s verdict resulted in a

“miscarriage of justice” or where the verdict cries out to be

overturned or shocks our conscience. Griffiths v. CIGNA Corp,

857 F. Supp, 399. 399, 411 (E.D. Pa. 1994) (citing Williamson

v. Consol, Rail Corp, 926 F.2d 1344, 1353 (3d Cir 1991), aff'd,

60 F.3d 814 (3d cir. 1995). The Court does not find that the

standard has been met in the instant case and will not order a

new trial based on this argument.

Ala.

2.) Evidentiary Rulings at Trial

Defendants next argue that the court erred in its

evidentiary decisions. a motion for a new trial on the basis of

alleged trial error will be granted when (1) an error was in fact

made, and (2) the error was so prejudicial that refusing to grant

a new trial is inconsistent with substantial justice. See Bhaya v.

Westinghouse Elec. Corp., 709 F.SUPP. 600, 601 (E.D. Pa.

1989), aff'd 922 F.2d 184 (3d Cir 1990). For evidentiary errors,

“a new trial must be granted unless “it is highly probable that

[the erroneous ruling] did not affect the [objecting party’s]

substantial rights,” Id. (quoting McQueeney v. Wilmington

Trust Co., 799 F.2d 916, 928 (3d Cir. 1985)).

Defendants fourth argument was also raised in their

motion for judgement as a matter of law, and the court covers

this argument in Section III(A)(3), supra.

Defendants argue that the following evidentiary errors

were made: (1) the court precluded the testimony of Nagle and

Thomas Holtzman regarding the discussions about Donald

Boyanowski during Superintendent Council and CAIU Board

meetings; (2) the court admitted testimony of George

Zimmer.nan that he felt threatened by conversations he had

with Nagle and Frye; (3) the court admitted testimony of

Dorothy Boyanowski regarding her damages, which Defendants

contend is hearsay; and (4) the court permitted Jean Winters to

testify regarding communications about her permission to hire

Dorothy Boyanowski.

Defendants assert that Nagle and Thomas Holtzman’s

testimony regarding discussions about Donald Boyanowski at

meetings should not have been precluded as_ hearsay.

Defendants assert that the court precluded discussions of

whether Donald Boyanowski violated the Pennsylvania Ethics

Act, Boyanowski’s allegedly derogatory statements about

CAIU, and CAIU contractors’ comments that Boyanowski

instructed them to “pad” miles. Defendants argue that the

Aa.

statements were not hearsay because they were not offered for

the truth of the matter asserted and that preclusion of the

Statements was prejudicial to Defendants because the

Statements were relevant to Defendants’ states of mind,

intentions, and degrees of culpability. Plaintiffs contend that the

Court properly excluded hearsay, matters of opinion and

irrelevant testimony. Defendants did not supply the court with

an excerpt of the trial testimony, through which the court can

review the context of its rulings at trial, and, thus have failed to

meet thcir burden of demonstrating that the rulings were in

error. The Court will deny their motion for a new trial on this

ground.

Defendants next argue that the court erroneously

admitted testimony by George Zimmerman that he felt

threatened by conversations he had with Nagle and Frye.

Defendants contend that this testimony; (1) was not relevant;

(2) had only the intent of demonstrating prior bad acts to

prejudice the jury; (3) did not describe anything that could

constitute a threat to form the basis of his feelings; and (4) was

“fruit of the poisonous tree” because Plaintiffs learned of the

testimony through improper ex parte contacts with William

Jacobi, another CAIU employee. Prior to trial, Defendants filed

a motion in limine seeking to preclude Zimmerman’s —

testimony. The court denied the motion and allowed

Zimmerman to testify, with the restrictions that he could not

testify as to any conversations he had with Jacobi or heard by

Jacobi, based on Plaintiffs’ counsels’ actions towards Jacobi.

See May 21, 1997 Memorandum and Order. therefore, the

Court has already decided the relevance of Zimmerman’s

testimony and fashioned a remedy regarding any ex-parte

contacts. Defendants proffer no persuasive arguments to

overturn this decision. moreover, while Defendants’ post trial

motion asserts that Zimmerman’s testimony is insufficient to

support his conclusion that he felt threatened. Defendants have

not supplied the court with a transcript to support this

Ada.

contention. Therefore, the Court will deny Defendants’ motion

as it pertains to Zimmerman’s testimony.

Defendants contend that Dorothy Boyanowski’s

testimony regarding her damages was hearsay and that the court

should have precluded this testimony. Defendants do not

support their argument with citations to the record. 7 herefore,

they have not demonstrated that her testimony was hearsay.

moreover, it appears that an individual would have knoweldge

of her salary and be competent to testify as to her damages

based on that salary.

Defendants’ final argument regarding errors at trial is

that the court erroneously allowed Jean Winters to testify

regarding communications between her and her husband and

CAIU officials and what she learned from her husband about

whether she was permitted to hire Dorothy Boyanowski. Again,

Defendants do not support their argument with a transcript for

the court to review its decision regarding Winter’s testimony.

As such, the court will not disturb its prior ruling.

3.) Jury Instructions

Defendants argue for a new trial due to defects in the

jury instructions. “In reviewing jury instruction wher: error has

been alleged, a new trial will be required only if the

instructions, taken as a whole, give a misleading or inadequate

understanding of the law and the issues to be resolved.”

Malley-Duff & Assocs., Inc. v. Crown Life Ins.Co. 734 F.2d

133, 147 (3d Cir 1984).

Defendants assert that the court erred in refusing to

instruct the jury:(1) on common law privilege concepts to be

applied to the substantive due process claim; (2) that CAIU

liability must be premised on an official’s conscious awareness

that federal rights would be violated; (3) that normal effects of

defamation of future employment opportunities do not support

a substantive due process claim; (4) on the statutory structure

of CAIU and its relationship to school districts. Defendants

also assert that the court erred in instructing the jury:(1) that

Aha.

“stigma plus” can be the basis for a substantive due process

claim; (2) as to punitive damages.

Defendants cite no case law holding that state common

law privileges are affirmative defenses for federal substantive

due process claims. Even if the court were to assume,

arguendo, that a privilege may apply to Defendants’ actions, the

court notes that a party may not receive the protection of a

common law privilege if the privilege is abused. See Rest.

(Second) of Torts §599. The court instructed the jury that, in

order to find that Defendants violated Plaintiffs’ substantive

due process rights, they had to find that Defendants’ acts

“deliberately, arbritarily and capricously”. (Jury Instr. at 14) As

such, a finding that Defendants violated Plaintiffs’ substantive

due process rights would necessitate a finding of abuse of any

conditional common law privilege and Defendants would not

be protected by the privilege. Therefore, the Court committed

no error in refusing to include common law privileges in the

substantive due process instruction.

The court discussed the applicability of Brown in

section 111(A)(1), supra. Based on the reasons contained

therein and the conclusion that there was no facially lawful

decision in the instant action, the court determines that it was

not error to fail to instruct the jury that a policy-making official

must have acted with conscious awareness that spec ific federal

rights were violated.

Defendants state that it was error for the court to fail to

instruct the jury that the normal effects of defamation on future

employment opportunities does not support a substantive due

process claim and that it was error for the court to instruct the

jury that “stigma plus” can be a basis for substantive due

process liability. In its jury instructions, the court stated that,

“you are advised that there is no constitutionally protected right

- to obtain future government contracts, and that suspension or

debarment from bidding on government contracts may be a

basis for liability only if it is based upon a charge of fraud or

f

/

45a.

dishonesty.” (Jury Instr. at 14) As discussed in section

III(A)(1), supra, this charge meets the legal standards for

substantive due process and was not in error.

The court refused Defendants’ proposed jury instruction

involving the statutory structure and legal relationship of CAIU

to member school districts. The court determined that this

proposed instruction, encompassing over three typed pages,

was unnecessary for resolution of the issues in the case.

Defendants’ bare allegation of error in their post trial brief does

not persuade the court otherwise.

Given the court’s holding granting Nagle qualified

immunity, the court need not address Defendants” argument

that there was no “outrageous” conduct justifying a punitive

damage instruction.

The court finds that the jury instructions, taken as a

whole, were not misleading or inadequate. Therefore, the court

will deny Defendants’ motion for a new trial based on the jury

instructions.

IV Conclusion

The court will deny Defendants’ motion for judgement

as a matter of law as it relates to the substantance of Plaintiffs’

claims. The court will, however, grant the motion to the extent

that it requests qualified immunity for Nagle on Plaintiffs’

substantive due process claims. The court will deny in its entity

Defendants’ motion for anew trial. An appropriate order will

follow.

SYLVIA H. RAMBO, Chief Judge

Middle District of Pennsylvania

Dated: April 27, 1998

Abo.

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF PENNSYLVANIA

DONALD E.BOVANOWSKEL. CIVIL

individually; BOYO : NO.1:CV-94-1252

TRANSPORTATION :

SERVICES INC., DOROTHY:

A. BOYANOWSKI; and :

MICHAEL P. LABALOKIE :

Plaintiffs

v.

CAPITAL AREA

INTERMEDIATE UNIT;

JOHN E. NAGLE; ED

FRYE; ROGER

MORRISON; MARK

BAUER; and THE WEST

PERRY SCHOOL

DISTRICT

- Defendants Bess

ORDER

In accordance with the accompanying memorandum of

law, IT IS HEREBY ORDERED THAT:

1.) Defendants’ post trial motion for judgement as a

matter of law is GRANTED IN PART, in that Defendant

Nagle is accorded qualified immunity with respect to Plaintiff s

substantive due process claims.

2) Defendants’ post trial motion for judgement as a

matter of law is DENIED IN PART, in that the motion id

denied in all other respects.

4 la.

3) Defendants’ motion for a new trial is DENIED.

4) The clerk of court shall amend the amended

judgement, document number 178, to reflect each of the jury’s

verdict findings, with the alteration of entering judgement in

favor of Defendant Nagle on Donald Boyanowski’s substantive

due process claim.

SYLVIA H. RAMBO, Chief Judge

Middie District of Pennsylvania

Dated: April 27, 1998

ABQ.

APPENDIX “C” - MEMORANDUM OPINION AND

ORDER OF THE DISTRICT COURT DATED MAY 21,

1997

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DONALD E. : CIVIL ACTION

BOYANOWSKI : NO. 1:CV-94-1252

individually, and DONALD :

E. BOYANOWSKI, t/d/b as :

BOYO :

TRANSPORTATION

SERVICES, INC.;

DOROTHY A.

BOYANOWSKI; and

MICHAEL P.

LABALOKIE

Plaintiffs

Vv.

CAPITAL AREA

INTERMEDIATE UNIT;

JOHN E. NAGLE; ED

FRYE; ROGER

MORRISON; MARK :

BAUER; and THE WEST :

PERRY SCHOOL

DISTRICT,

Defendants

Ada.

MEMORANDUM

Before this Court are two motions in limine filed by

Defendants. One motion seeks to preclude information

obtained through ex-parte contacts with a William A. Jacobi.

The other motion seeks to preclude testimony in which George

Zimmerman is purported to state that he felt threatened by

Defendants Frye and Nagle.

Motion In Limine Regarding William A. Jacobi

William A. Jacobi is the Supervisor of Data Processing

with Defendant Capital Area Intermediate Unit. Mr. Jacobi

approached Plaintiffs’ counsel and requested a meeting which

subsequently took place. At that meeting Jacobi shared with

Plaintiffs’ counsel personal notes Jacobi took of meetings,

conversations and events surrounding this suit. This was

unknown to defense counsel until a short time before the taking

of Jacobi’s deposition. While attempting to prepare Jacobi for

his deposition, counsel became aware of Jacobi’s contact with

Plaintiffs’ counsel. Jacobi became uncooperative and refused

to provide defense counsel with his notes. His refusal was on

the advice of Plaintiffs’ counsel.

The Supreme Court of Pennsylvania has acopted Rule

4.2 of the Model Rules of Professional Conduct, which states:

In representing a client, a lawyer

shall not communicate about the

subject of the representation with a

party the lawyer knows to be

represented by another lawyer in

the matter, unless the lawyer has the

consent of the other lawyer or is

authorized by law to do so.

(Emphasis added.)

Da.

The Official Comment to Rule 4.2, which explains what

is meant by a “party” where, as here, an institutional defendant

is involved, provides:

In the case of an organization, this

Rule prohibits communications by

a lawyer for one party concerning

the matter in representation with

persons having a managerial

responsibility on behalf of the

organization, and with any other

person whose act or omission in

connection with that matter may be

imputed to the organization for

purposes of civil or criminal liability

or whose statement may constitute

an admission on the part of the

organization.

(Emphazis added.)

It is unclear where Jacobi falls into the emphasized

wording. He sits in on meeting with his two immediate

supervisors and sits in on strategic planning sessions.

(Transcript of Jacobi Deposition at p. 53.) The area of ethical

conduct is uncertain. ay

In Cagguila v. Wyeth Laboratories, 127 F.R.D. 653

(E.D. Pa. 1989), Judge Van Antwerpen stated that “[i]n such an

uncertain area of ethical conduct, we believe tha. a prudent

attorney would have given notice to opposing counsel of the

intent to take such a statement.” Id. at 654.

In University Patents, Inc. v. Klegman, 37 F. Supp. 325

(E.D.Pa. 1990), Judge Waldman stated:

There is a difference between doing

something one believes to be proper

and later learns is not when a court

SI1a.

Tules on a previously unsettled point,

- as in Hammad, and doing something

the propriety of which one knows is

in doubt. Rather than informing

opposing counsel of his intent to talk

with University employees or seeking

leave of court to do so, Mr. Morrison

imprudently proceeded with the

interviews unilaterally without regard

for the potential legal and ethical

ramifications.

Id. at 329 (citations omitted).

This court believes that Plaintiffs’ counsel had a duty to

notify defense counsel of Jacobi’s contact. Plaintiffs’ counsel

was Clearly out of line in advising Jacobi not to cooperate with

his employer’s counsel.

All other arguments raised by Plaintiffs’ counsel are

rejected.

Motion In Limine Regarding George Zimmerman

This Court finds that George Zimmerman’s state of

mind is quite relevant in this case. Therefore, the motion will

be denied except as to any conversations Zimmerman may have

had with Jacobi overheard and noted.

An appropriate order will be issued.

SYLVIA H. RAMBO, Chief Judge

Middle District of Pennsylvania

Dated: May 21, 1997

aa.

_ IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DONALD E. : CIVIL ACTION

BOYANOWSKI 3 NO. 1:CV-94-1252

individually, and DONALD :

E. BOYANOWSKI, t/d/b as :

BOYO :

TRANSPORTATION

SERVICES, INC.;

DOROTHY A.

BOY ANOWSKI; and

MICHAEL P.

LABALOKIE

Plaintiffs

v.

CAPITAL AREA

INTERMEDIATE UNIT;

JOHN E. NAGLE; ED

FRYE; ROGER

MORRISON; MARK :

BAUER; and THE WEST :

PERRY SCHOOL

DISTRICT,

Defendants

ORDER

In accordance with the accompanying memorandum. IT

IS HEREBY ORDERED THAT:

1.) The motion in limine regarding Wiiliam A. Jacobi

is granted. William A. Jacobi shall not be permitted to testify at

trial; his deposition shall not be used; and his notes and the

S3 Q.

information derived from his notes shall not be used.

- 2.) The motion in limine regarding George Zimmerman

is denied, except to the extent that paragraph 1 of this order

applies.

SYLVIA H. RAMBO, Chief Judge

Middle District of Pennsylvania

Dated: May 26, 1997