Opposition Brief — Boyanowski v. Capital Area Intermediate Unit

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3 | FILED

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OCT 18 on

No. 00-419 .

CLE

In The ‘~ ————

Supreme Court of the United States

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DONALD BOYANOWSKI and

DOROTHY BOYANOWSKI,

Petitioners,

CAPITAL AREA INTERMEDIATE UNIT,

JOHN E. NAGLE and ED FRYE,

Respondents.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

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. BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

¢

Stuart L. KNADE

Counsel of Record

PENNSYLVANIA SCHOOL BOARDS

ASSOCIATION

774 Limekiln Road

" New Cumberland, PA 17070

(717) 774-2331

Attorney for Respondents

Capital Area Intermediate Unit,

John Nagle and Ed Frye

Supreme Court, U.S.

Z8er

Il.

Il.

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

Does either the extent to which the Court of Appeals

examined the trial record, or whether it reviewed

the grant of a motion in limine, constitute an issue

meriting further review in the Supreme Court,

where the judgment below was based on the irsuffi-

ciency of the underlying claims as a matter of law,

and did not rest upon a basis to which such factors

could be relevant?

- (Negative answer sought by Respondents)

Does the Petition offer any justification for revisiting

the Supreme Court’s teaching in Siegert v. Gilley that

mere defamation by government actors presents no

federal constitutional claim? __

— (Negative answer sought by Respondents)

Was any aspect of the Court of Appeals’ conclusion

that the state law civil conspiracy verdict must be set

aside as a matter of state law, or its determination

and application of a state law doctrine plain from

both state appellate decisions and sound legal rea-

soning, present an issue appropriate for grant of

certiorari?

- Negative answer sought by Respondents)

ii

TABLE OF CONTENTS

Page

Counter-statement of Questions Presented.......... i

Temes OF Asteetee «ois ccsscinsuy ica iii

Counter-Statement of the Case..................05. 1

Procedural Wachee’. «06455 6sss55 ssa bac eed en 1

Ee eee re eee ee te Rh TON 7

Reasons for Denying the Writ 7. ..........cecessses 12

I. Neither the extent to which the Court of

Appeals examined the trial record nor whether

it reviewed the grant of a motion in limine can

constitute an issue meriting further review in

the Supreme Court, in that the judgment below

was based on the insufficiency of the underly-

ing claims as a matter of law, and did not rest

upon a basis to which such factors could be

POOUVOGR oo io3us Saeed Gage a 13

II. The Petition offers no justification for revisiting

the Supreme Court's teaching in Siegert v. Gilley

that mere defamation by government actors pre-

sents no federal constitutional claim .......... 16

III. In concluding that the state law civil conspiracy

verdict must be set aside as a mattér of state

law, the Court of Appeals properly determined

and applied a state law doctrine made plain

both by state appellate decisions and sound

rT er ye ty ee een 19

Conclusion ..... a hGhise ube Ly Leer Eek. FC reve

iii

TABLE OF AUTHORITIES

Page

CAasEs

Boyanowski v. Capital Area Intermediate Unit,

eas Hoe Geo (oe Cir. 2000)... 66.0. cece 7, 14, 18

College Savings Bank v. Florida Prepaid Postsecondary

Education Expense Board, 527 U.S. 666 (1999)....... 16

Collins v. City of Harker Heights, 503 U.S. 115 (1992) .... 16

County of Sacramento v. Lewis, 523 U.S. 833 (1998) .... 19

DiMeglio v. Haines, 45 F.3d 790 (4th Cir. 1995)....... 19

GMH Assoc., Inc. v. Prudential Realty Group, CB,

702 A.20 669 (Pa. Super. Ct. 2000)................ 21

Hicks on Behalf of Feiock v. Feiock,

ee EN ie ond nuns a abv dba es a0ed ke 40 21

Nix v. Temple University, 408 Pa. Super. 369,

ee Me NED: oi ok ves Wi Rokk sis cacdsiase nen 21

Paul v. Davis, 424 U.S. 693 (1976) ................. + 16

Pelagatti v. Cohen, 370 Pa. Super. 422,

EOE oo oink ns 4460045050 60s one nes 22

Raneri v. DePolo, 65 Pa.Cmwlth. 183,

ee I OI ss cb Wak dwn dds kok 6 kde Ka ao 22

Rose v. Wissinger, 294 Pa. Super. 265,

I a sss Kok hes thn ne daned ses 22

Rosen v. Tesoro Petroleum Corp., 399 Pa. Super. 226,

ee Beatie 21

Rutherfoord v. Presbyterian-University Hospital,

417 Pa.Super. 316, 612 A.2d 500 (1992)............ 21

iv

TABLE OF AUTHORITIES - Continued

Page

Siegert v. Gilley, 500 U.S. 226 (1991).......... 17, 18, 19

Strunk v. Owen, 199 Pa. 73, 48 A. 888 (1901) ........ 22

West v. American Telephone & Tel. Co.,

TER We BP EEE hak cin ca wekpiaeenkssenws 19, 20, 21

Wilson v. Layne, 526 U.S. 603 (1999) ..............0.. 19

STATUTES AND RULES

Pennsylvania Public School Code of 1949

Pa. Stat. Ann. tit. 24 § 9-901, et seg. (West 1992)..... 7

Rules of the Supreme Court of the United States

he PCE ee TC er hee re: eee 12

Federal Rules of Appellate Procedure

Del Ree. FM, i oc a a 15

a ee ee mn ne 15

Fed. R. App. P. 28(a)(9)(A)... 2.2.0... ..eeeeeeeee. 15

Fed. R. App. P. 28(b)....... ROR eee eee rae 15

a i, OS ie ea 15

Pee: he Ba a cee 15

Third Circuit Local Appellate Rules

Es BUNS Ws bien oben s dah i encir cet cas 6n<eicads 15

ee io Fs rs oe he i ee 15

COUNTER-STATEMENT OF THE CASE

The Petition’s descriptions of procedural history and

facts in this case are so replete with inaccuracies or asser-

tions having sparse relation to the record, and so inter-

twined with argumentative charges masquerading as fact

but as to which no competent evidence has been offered,

as to defy any attempt at concise. point-by-point discus-

sion. To the extent inconsistent with the procedural back-

ground and facts set forth below, the Petition’s statement

of the case should be regarded with great caution.

Procedural Background

In August 1984, Petitioners Donald Boyanowski and

Dorothy Boyanowski (appellees/plaintiffs below), along

with Boyo Transportation Services, Inc. (“Boyo”), filed a

complaint in the U.S. District Court for the Middle Dis-

trict of Pennsylvania at docket number 1:CV-94-1252,

alleging various claims against Respondents (appellants /

defendants below) Capital Area Intermediate Unit

(“CAIU”), Dr. John E. Nagle (“Nagle”), and Edward T.

Frye (“Frye”). Complaint, A. 12-29. Nagle was the CAIU

Executive Director prior to his retirement in July 1993,

and Frye was the CAIU Assistant Executive Director until

he succeeded Nagle as Executive Director in July 1993.

Frye, NT A224-25, 522; Nagle, NT A449.1

1 Except where specified otherwise, all references herein to

the appendix (e.g., “A449”) are to the appendix filed by

Respondents in the court below, rather than to the

supplementary appendix filed below by Petitioners.

Relevant to the appeal below are claims asserted in

that complaint by Donald Boyanowski, Boyo, and Doro-

thy Boyanowski that during the late winter, spring and

summer of 1993, CAIU, Nagle and Frye violated their

federal substantive due process rights and conspired to

do so, for which they claimed relief pursuant to 42 U.S.C.

§ 1983. They also claimed, pursuant to state law, that the

same conduct of CAIU, Nagle and Frye tortiously inter-

fered with their contractual interests, and amounted to a

civil conspiracy to do so.

Prior to trial, the action in which the Boyanowskis

and Boyo brought the claims described above was consol-

idated with two other actions, one by Donald Boy-

anowski and Boyo alleging similar claims against Marc

Bauer and West Perry School District (originally docketed

in the district court at no. 1:CV-96-404), and another in

which Michael Labalokie brought First Amendment retal-

iation claims and state law tortious interference with

contract claims against CAIU, Nagle and Frye (originally

docketed in the district court at no. 1:CV-95-838). Docket

entries, A4-5. Marc Bauer was the CAIU’s supervisor of

special education until he became the CAIU assistant

executive director during the summer of 1993, succeeding

Frye. Bauer, NT A603. In May 1997. the Court granted

summary judgment in favor of West Perry School District

and Bauer. ee

Trial of this action took place before a jury commenc-

ing on June 23, 1997 through July 1, 1997. As a result of

other rulings on defense motions during and prior to

trial, the only claims submitted to the jury consisted of

Labalokie’s First Amendment retaliation claim against

defendants CAIU and Nagle only, Labalokie’s tortious

en,

interference with contract claim against Nagle only, the

substantive due process claims (including conspiracy

claims) of Donald Boyanowski and Boyo, Inc. against

CAIU, Nagle and Frye, and Dorothy Boyanowski’s tor-

tious interference with contract and civil conspiracy

claims against Nagle and Frye only. Docket entries, A6;

Pretrial conference order, A70; July 16, 1997 order, docket

entries, A9; jury charge, A88-118. As submitted to the

jury, only Boyo could recover damages for economic loss

due to lost business prospects, since that was the entity

with whom any school districts would have contracted

and through which Donald Boyanowski intended to do

business. The court ruled that Donald Boyanowski him-

self could not recover such damages. Id.; verdict form,

A119-20, A123.

The jury returned a mixed verdict, finding for the

defendants on the claims of Labalokie and Boyo, Inc., on

the tortious interference with contract claim of Dorothy

Boyanowski, and on the conspiracy aspect of Donald

Boyanowski’s substantive due process claim. The jury

also found in favor of Frye on Donald Boyanowski’s

substantive due process claim. The jury found CAIU and

Nagle liable on Donald Boyanowski’s substantive due

process claim, awarding compensatory damages for emo-

tional harm only in the amount of $50,000 against CAIU

and $100,000 against Nagle, and also awarding punitive

damages in the amount of $100,000 against Nagle. The

jury found Nagle and Frye each liable on Dorothy Boy-

anowski’s civil conspiracy claim, awarding $100,000 in

compensatory damages against Frye and $50,000 in com-

pensatory damages against Nagle. The jury declined to

award punitive damages against Nagle or Frye on Doro-

thy Boyanowski’s civil conspiracy claim. NT A119-130,

A689-94.

CAIU, Nagle and Fry filed post-trial motions, renew-

ing their motions for judgment as a matter of law, and

alternatively seeking a new trial. On April 27, 1998, the

district court granted the motion for judgment in part,

ruling that Nagle was entitled to qualified immunity on

Donald Boyanowski’s substantive due process claim, and

setting aside the jury’s awards in favor of Donald Boy-

anowski and against Nagle for $100,000 in compensatory

damages and $100,000 in punitive damages. The district

court denied the post-trial motions in all other respects,

entering judgment on the remaining claims in accordance

with the verdicts.

On May 27, 1998, CAIU, Nagle and Frye filed a notice

of appeal from the Amended Judgments entered April 27,

1998, and from the district court's order of the same date

insofar as it denied their motions for judgment as a

matter of law.and new trial, as well as from the amended

judgments entered on July 7, 1997, prior to the filing of

post-trial motions.

On June 9, 1998, Petitioners filed a notice of appeal

initiating their cross-appeal, followed by an amended

notice of appeal filed on June 10, 1998. These notices of

the cross-appeal appeared to encompass numerous Dis-

trict Court rulings adverse to each of the various plaintiff

parties below, including pre-trial, trial and post-trial rul-

ings. However, Petitioners’ sole brief in support of a

cross-appeal was filed only on behalf of Petitioner

Donald E. Boyanowski, which was expressly limited in its

scope to only that portion of the District Court’s April 27,

1998 ruling on Respondents’ (cross appellees below) post-

trial motions according Respondent Nagle qualified

immunity and entering judgment in Nagle’s favor on that

basis. Brief of Cross Appellants, at 2. Petitioners’ brief in

support of the cross-appeal did not address any pre-trial

or trial rulings pertaining to Donald Boyanowski, nor any

rulings or trial results below relating to claims of Dorothy

A. Boyanowski, Boyo Transportation Systems, Inc., or

Michael Labalokie. Petitioners filed no other brief in sup-

port of a cross-appeal relating to those issues.

During a telephone conversation on May 10, 1999,

counsel for Petitioners stated to Respondents’ counsel

that the limited scope of the brief for cross appellants

reflected an intent that Donald Boyanowski and John

Nagle be the only remaining parties to the cross-appeal,

with the only remaining issue that of the trial court’s

April 27, 1998 ruling according Nagle qualified immunity,

and that it was intended to forego pursuit of all other

cross-appeal issues identified in the notices of appeal on

behalf of Donald Boyanowski<and other plaintiff parties

identified in the captions below. Accordingly, although

named in the caption as cross appellants, Petitioners’

counsel explained that Dorothy A. Boyanowski, Boyo

Transportation Services, Inc. and Michael P. Labalokie

were no longer pursuing cross-appeals before the Court

of Appeals, and nor was any plaintiff party below further

pursuing cross-appeals against the Capital Area Inter-

mediate Unit, Edward T. Frye, Marc A. Bauer, Roger

Morrison or the West Perry School District.

On or about May 4, 1999, counsel for cross appellants

filed a motion and stipulation dismissing the cross-

appeals as against West Perry School District and Roger

Morrison, which the Court of Appeals approved by order

dated July 26, 1999. To date however, no similar motion

and stipulation has been filed pertaining to the cross-

appeals of Dorothy Boyanowski and Michael Labalokie.

At oral argument before the Court of Appeals on

September 23, 1999, it was observed by the court that the

briefs of Petitioners contained no citations to specific

places in the record contradicting Respondents’- argu-

ments (inter alia) that the record was devoid of evidence

which could establish concerted action or other essential

elements of Petitioner Dorothy Boyanowski’s state law

civil conspiracy claim or which could defeat the Respon-

dents’ defenses relating to statutory immunity and the

incapacity of corporate officers to conspire with one

another. See, Brief for Appellants, pp. 12-14, 29-34; Brief

for Cross-Appellees (CAIU, Nagle, Frye and Bauer)/

Reply Brief for Appellants, pp. 12-14, 28-30.

During argument, when the court asked Petitioners’

counsel whether he could provide such citations to speci-

fic places in-the record, counsel answered to the effect

that he was not able to do so at that time. Accordingly,

the court directed from the bench at argument that Peti-

tioners’ counsel file and serve a memorandum setting

forth specific citations to the pages of the record contain-

ing favorable evidence on such issues.

Subsequently, on or about October 4, 1999, Peti-

tioners filed with the Court of Appeals a document styled

“Appellees’ Memorandum As Per The Court’s Bench

Order Of September 23, 1999”. After obtaining leave of

the court, Respondents then filed a responsive memoran-

dum dated October 15, 1999, pointing out, among other

things, that every one of the 20 pages of the record to

which Petitioners’ post-argument memorandum made

specific reference were included in the appendices sub-

mitted to the Court of Appeals along with the parties’

briefs.

On June 14, 2000, the Court of Appeals reversed the

District Court and directed that judgment be entered in

favor of defendants (Respondents) on all counts. Boy-

anowski v. Capital Area Intermediate Unit, 215 F.3d 396, 407

(3d Cir. 2000).

Facts

Intermediate units are regional governmental entities

created by Pennsylvania statute as part of the state sys-

tem of public education which operate various programs

of special education and other services in which local

public school districts assigned to each IU are entitled to

participate. Intermediate units are governed by a board of

directors elected from among the boards of directors of

the component school districts, a chief executive officer

known as the executive director, and an executive coun-

cil, chaired by the executive director, comprised of the

superintendents of each component school district. CAIU

is one of 29 intermediate units in Pennsylvania. Pa. Stat.

Ann. tit. 24 § 9-901, et seq. (West 1992); Nagle, NT

A453-55, A478-82.

Among numerous other consortium-type programs

operated by intermediate units, CAIU operated a net-

work providing transportation of disabled children to

and from various special classes and programs at loca-

tions scattered throughout CAIU’s region. CAIU pro-

vided this transportation through a combination of its

own employees driving CAIU-owned equipment, reen-

forced by numerous independent contractors, retained

under one-year contracts, operating their own vehicles.

Zimmerman, NT A135-36; Rose, NT A558-93.

Donald Boyanowski had been, until his retirement in

March 1993, CAIU’s Transportation Supervisor for more

than twenty years. Upon his retirement, Boyanowski

established Boyo Transportation Services, Inc. (“Boyo”),

through which he endeavored to directly contract with

CAIU member school districts to provide the special edu-

cation pupil transportation services that those school dis-

tricts had for many years been receiving from the CAIU

transportation network operated under Boyanowski’s

supervision. Despite his efforts, Boyanowski was unsuc-

cessful in persuading anv CAIU school districts to accept

Boyo’s contract proposals. Don Boyanowski, NT A259-85,

A306-313; Dorothy Boyanowski, NT A249; Temple, NT

A177-91; Labalokie, NT A243; Holtzman, NT A550-56.

Boyo and Boyanowski claimed that Boyo’s lack of

success was the result of a conspiracy engaged in by

CAIU, Nagle and Frye to violate their federal constitu-

tional rights by unlawfully interfering with his business

efforts and preventing him from establishing his_new

business, essentially by smearing his personal and busi-

ness reputation. At trial, the evidence presented in sup-

port of these claims amounted to little more than

disputed testimony to the effect that Defendant Nagle

had unfairly blamed Boyanowski for the skyrocketing

costs of the CAIU transportation program he had super-

vised, and had once referred to him as a “crook” in

course of a discussion with the CAIU Superintendents

Council. There was no evidence that Nagle ever made

any such disparaging remarks other than to the Superin-

tendents Council or to the CAIU Board of Directors, or

that he did anything other than respond or react to ques-

tions from those governing bodies about Boyanowski and

the CAIU transportation program. There was no evidence

that anything CAIU or its officials did was causally

related to any school district’s decisions regarding

whether Boyo would be retained to provide transporta-

tion services. Gutshall, NT A205-19; Lytle, NT A165-67,

A174-75; Labalokie, NT A230-34; Walters NT A222; Zim-

merman, NT A137-39, A153; Don Boyanowski, NT

A286-88, A320-36; Nagle, NT 349-54; Holtzman, NT

A550-56; Temple, NT A177-91.

The defense evidence disputed that Nagle had ever

called Boyanowski a crook or that Nagle or Frye other-

wise accused him of wrongdoing or attempted to inter-

fere with his business efforts. The defense presented

evidence that Boyanowski’s retirement came as a sur-

prise, in the middle of budget preparation and attempts

to resolve questions raised by CAIU school districts about

the reasons for rapidly increasing costs of participating in

the CAIU transportation program. The CAIU officials

claimed that they were only attempting to continue that

inquiry in the wake of Boyanowski’s unexpected retire-

ment, reporting what they were learning to the CAIU

board of directors and executive council, and attempting

10

to answer additional questions from school district repre-

sentatives prompted by Boyanowski’s sudden emergence

as an aspiring competitor. Don Boyanowski, NT A263-72;

Rose, NT A557-71; Zimmerman, NT A159-62; Spitler, NT

A432-44; Gutshall, NT A216-18; Holtzman, NT A550-56;

Nagle, NT A349-75, A450, A456-70, A501-08; Executive

Council minutes, CAIU Ex. C-43, A713-33.

CAIU contended that along the way, while consider-

ing proposals to contract out all aspects of the program

operation in order to reduce costs, the new CAIU trans-

portation supervisor Deanna Rose and special education

supervisor Marc Bauer developed a plan for continuing

the CAIU program at what they believed would be signif-

icantly greater cost efficiency. This was to be achieved

mainly by redesigning bus routes and passenger assign-

ments to reduce the number of empty seats, enabling

them to reduce the number of contracted vehicles and

runs, and to qualify a greater portion of the remaining

runs for state reimbursement. After surveying its compo-

nent school districts, the CAIU board decided to try

operating the program for at least one more year under

Rose and Bauer’s plan, rather than dismantling the pro-

gram, staff and equipment. All but one school district

elected to continue participating in the program for the

following year, 1993-94, rather than entering into separate

contracts on their own. Nagle, NT A356-58, A457-70, A

478-500; Frye, NT A545, A525-28; Rose, NT A557-85;

Bauer, NT A605-11, A623-32.

Plaintiff Dorothy Boyanowski also claimed that her

substantive due process rights were violated when she

did not receive a new contract for the 1993-94 school year,

a + ——

et |

11

and later when CAIU allegedly prohibited another con-

tractor from hiring her as a driver. She further claimed

that these events also constituted a tortious interference

with contract, and were the subject of a civil conspiracy

on the part of Nagle and Frye to tortiously interfere with

her contractual interests. With regard to defendant Nagle,

the evidence presented in support of these claims at trial

showed only that at the close of the 1992-93 school year,

in response to a letter from Labalokie, Nagle sent

Labalokie and Dorothy Boyanowski virtually identical

letters informing them that their services were not

needed for the next school year due to downsizing and

elimination of runs, which he did only upon being

informed by acting CAIU transportation supervisor

Deanna Rose that there were no contracted transportation

runs available for assignment to them as result of the

restructuring and the termination of one school district’s

participation. There was no evidence that Nagle had any

reason to disbelieve what Rose had told him, or of any

intention on his part to harm Dorothy Boyanowski. There

was no evidence that Defendant Frye had any involve-

ment in this exchange, or that he ever discussed it with

Nagle. Labalokie, NT A238-42; Dorothy Boyanowski, NT

A250-53; Rose, NT A581-87, A592-600; Nagle, NT

A359-67, A506-07; Frye, NT A530-32, A538-39, A545.

With regard to Defendant Frye, the only evidence at

trial underpinning Dorothy Boyanowski’s remaining

claims was to the effect that in late Summer 1993, after

Nagle was on terminal vacation leave prior to retirement,

Frye was approached by Deanna Rose and informed that

another contractor had asked “how CAIU would feel”

about that contractor hiring Dorothy Boyanowski asa

12

driver. Frye responded to Rose that he didn’t think it was

a good idea at that time, which Rose then communicated

to the contractor. The contractor then declined to hire

Dorothy Boyanowski. There was no evidence that Frye

did anything other than respond to an inquiry, or that he

directed the contractor to refrain from hiring Boy-

anowski. There was no evidence that Nagle had any

involvement in this matter or ever discussed it with Frye.

There was also no evidence that Nagle and Frye other-

wise had any shared ill will toward Dorothy Boyanowski,

that they ever had any shared plan or intentions toward

her of any kind, or that she was ever a topic of discussion

between Nagle and Frye. Winters, NT A195-99; Frye, NT

A226-29, A532-34; Rose, NT A601-2; Nagle, NT A363-67;

Spitler, NT A434; Morrison, NT A519-521.

¢

REASONS FOR DENYING THE WRIT

In addition to numerous other departures from what

the rules of the Supreme Court require of petitions for

certiorari, the Petition here utterly fails to set forth any

compelling reason consistent with Supreme Court Rule 10

suggesting that some aspect of the decision of the Court

of Appeals might merit the attention of this Court. Sup.

Ct. R. 10. Not only is the opinion of the Court of Appeals

soundly reasoned, faithful to the teachings of the

Supreme Court in analogous cases, and solidly grounded

in the record, the Petition makes no attempt whatsoever

to point to any decision of another federal court of appeal

or state court of last resort with which the underpinnings

of the ruling below, or their application in this case,

might be characterized as being inconsistent.

13

I. NEITHER THE EXTENT TO WHICH THE COURT

OF APPEALS EXAMINED THE TRIAL RECORD

NOR WHETHER IT REVIEWED THE GRANT OF A

MOTION IN LIMINE CAN CONSTITUTE AN

ISSUE MERITING FURTHER REVIEW IN THE

SUPREME COURT, IN THAT THE JUDGMENT

BELOW WAS BASED ON THE INSUFFICIENCY OF

THE UNDERLYING CLAIMS AS A MATTER OF

LAW, AND DID NOT REST UPON A BASIS TO

WHICH SUCH FACTORS COULD BE RELEVANT

The Petition contends that two evidentiary issues

should be regarded as particularly significant with

respect to whether certiorari should be granted in this

case. Petition at 2, 12. The first contention, beginning

with Petitioners’ incorrect description of the Court of

Appeals’ judgment as “fact-based”, asserts in essence that

the court on appeal must always review the entire trial

record before ruling on the sufficiency of evidence to

support a disputed claim. Petition at 2, 7-8. The second

contention focuses on the omission, in the opinion of the

court below, of any discussion of the argument now made

by Petitioners that the trial court erred in granting a

defense motion in limine seeking to bar testimony of the

CAIU Supervisor of Data Processing, William Jacobi, due

to his ex parte dealings with Petitioners’ counsel during

the course of litigation.

Initially, it should be noted that the latter contention,

which Petitioners now describe as perhaps “the most

important addressed to this Court”, Petition at 12, should

be regarded as having been abandoned on appeal. As

with other matters initially encompassed in Petitioners’

amended notice of appeal and later abandoned, the issue

14

of the motion in limine regarding Mr. Jacobi, while men-

tioned to some degree in Petitioners’ brief in opposition

to Respondents’ appeal in the court below, was neither set

forth as a question presented nor discussed in Petitioners’

brief in support of their cross-appeal.

Most significant to both of these fact-oriented issues

is that the Court of Appeals did not reverse the judgment

of the trial court in this case based on sufficiency of

evidence, either on the federal substantive due process

claim asserted by Mr. Boyanowski or on the state-law

civil conspiracy claim asserted by Mrs. Boyanowski. It

did not need to. Instead, the Court of Appeals set aside

the trial verdict and entered judgment for the Respon-

dents because it found each of those claims insufficient as

a matter of law. 215 F.3d 396, 401, 405, Slip Op. at 9, 16.

This made it unnecessary for the Court of Appeals to

address any of the various evidentiary arguments pre-

sented by either Petitioners or Respondents on appeal

below, upon which the Court of Appeals expressly

declined to rule. These issues would, of course, remain to

be decided if the Court of Appeals judgment were to be

altered in some way by the Supreme Court.

For the same reason, the judgment sought to be

appealed from does not present, in a context meriting the

attention of the Supreme Court, the issue asserted by

Petitioners with regard to the trial court’s grant of the

motion in limine. In addition, at no stage have Petitioners

proffered a theory of how the exclusion of the testimony

concerned might have altered the result at trial, given

that the jury verdicts favored Petitioners on the claims

considered by the Court of Appeals, which later set them

aside on purely legal rather than factual grounds.

15

Moreover, Petitioners’ assertions regarding what

review of the record was either required of or actually

conducted by the Court of Appeals are both groundless

and speculative. The Federal Rules of Appellate Pro-

cedure and the Third Circuit Local Appellate Rules make

it quite clear that it is the obligation of the parties to bring

to an appellate court’s attention any specific aspect of the

record believed to be pertinent to the issues presented on

appeal, that parties should not simply dump the entire

record into the appendix on appeal, and that parties may

not simply expect the court to search for needles in an

undigested haystack of material. Fed. R. App. P. 10(b)(2)

(parties contending on appeal that a finding or conclu-

sion is unsupported must include in the record all “rele-

vant” evidence); Fed. R. App. P. 28(a)(7),(9)(A),(b)

(assertions of fact in briefs to include appropriate refer-

ences to the record); 3rd Cir. LAR 28 (1997) (all assertions

of fact in briefs shall be supported by a specific reference

to the record); Fed. R. App. P. 30(a) (parts of the record

may be relied on by the court or parties even though not

included in the appendix); Fed. R. App. P. 30(b) (parties

must refrain from unnecessary designation of parts of the

record for the appendix, because entire record is available

to the court); 3rd Cir. LAR 30.3 (whenever appeal chal-

lenges the sufficiency of evidence, appendix must reprint

all evidence supportive of the challenged determination).

By stark contrast, neither the Petition nor the Peti-

tioners’ briefs below contain a single specific reference to

the trial record from which it might be determined or

even guessed what evidence Petitioners think the Court

of Appeals should have examined, but failed to consider.

Even if such references were supplied, it normally would

16

be pure speculation to assert that any particular part of

the record in fact escaped the consideration of the court

below. Here however, when the Court of Appeals gave

Petitioners a final opportunity, after argument, to point to

specific evidence of record upon which they wished to

rely, every single item Petitioners found worthy of speci-

fic reference in their response already was contained in

the appendices filed along with the parties’ briefs and

presumably examined by the Court of Appeals.

II. THE PETITION OFFERS NO JUSTIFICATION FOR

REVISITING THE SUPREME COURT’S TEACH-

ING IN SIEGERT V. GILLEY THAT MERE DE*A-

MATION BY GOVERNMENT ACTORS PRESENTS

NO FEDERAL CONSTITUTIONAL CLAIM

The Supreme Court should refuse the Petition’s invi-

tation to deviate either from the Court's frequent admoni-

tion against allowing the Due Process Clause to become

“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); College Savings Bank v.

Florida Prepaid Postsecondary Education Expense Board, 527

U.S. 666, 673 (1999), or the Court’s repeated caution that

any expansion of substantive due process theories must

be viewed with extreme caution. Collins v. City of Harker

Heights, 503 U.S. 115, 125 (1992).

Here, the Court of Appeals correctly recognized that

to the extent there once was any question about whether

zarden variety defamation, even by government officials,

could be the basis of a due process claim, substantive or

procedural, that question had already been answered in

17

the negative by the Supreme Court in Siegert v. Gilley, 500

U.S. 226 (1991). In Siegert, presenting a claim quite similar

to what the trial court permitted to go the jury in this

case, the plaintiff attempted to plead a “stigma plus”

constitutional injury based on a highly derogatory letter

written by the plaintiff’s former supervisor at the federal

government hospital from which he had resigned several

weeks prior.

Because the plaintiff had voluntarily resigned prior

to the alleged defamation, the Court held that the injury

to the plaintiff’s reputation and future employment pros-

pects, in fact later causing denial of other government

employment, was no different than the kind of loss which

usually flows from injury to reputation, and was there-

fore insufficient to provide the “plus” required to estab-

lish an actionable constitutional deprivation. 500 U.S. at

233-234. The Court held that so long as the harm in

question flows only from the reputational injury, it may

be actionable under state tort law but not in a federal due

process claim, even where there are allegations of malice

on the part of the defendants. Id.

As aptly noted by the Court of Appeals, the Peti-

tioners’ brief below dispels any doubt about whether it is

fair to describe the theory of harm in this case as an

impermissible attempt, for the purpose of circumventing

state government immunity laws, to assign constitutional

dimension to what was nothing more in relevant aspects

than any other state law defamation or business dispar-

agement claim. The following passage from Petitioners’

brief in the court below is quoted in the Court of

Appeals’ opinion:

18

According to appellants, if a government entity

is interested in doing business, and in the pro-

cess uses its political power and muscle to sys-

tematically destroy the business opportunities

of a competing private citizen through slur, innu-

endo, and outright false accusations, then the

misconduct is simply not actionable. In Pennsyl-

vania sovereign immunity protects government

from tortious interference with contracts suits.

Appellants know there is no adequate recourse

under state defamation law also because of sov-

ereign immunity statutes.

Appellee’s Br. at 8 (emphasis added); quoted at 215 F.3d

400. This Court made it quite plain in Siegert that injury

to reputation, including the business and professional

harms that are likely to accompany damage to reputation,

does not by itself implicate any liberty interest protected

by the Fourteenth Amendment, even when the alleged

defamers are government officials claimed to be acting

with malice. Siegert, 500 U.S 233-34.

_ The Petition makes no attempt to point to any circuit

or other case suggesting that Siegert should not have been

applied as the Court of Appeals did in this case, nor to

any decision raising question about the viability of this

aspect of the Court’s decision in Siegert.2 Instead, the

2 To the extent that there has been any judicial uncertainty

or disagreement about the application of Siegert, it appears to

have been limited to the Court’s guidance that before

attempting to determine whether a constitutional right was

clearly established for purposes of qualified immunity, logic

and judicial economy dictate that the court first should

determine whether the allegations involve a protected right in

the first place, rather than assuming it for the purposes of

19

Petition simply offers what amounts to little more than a

statement of unhappiness about this Court’s steadfast

refusal to view the Constitution as a font of tort and

business practices law providing a right for every per-

ceived wrong lacking a viable state-created remedy.

III. IN CONCLUDING THAT THE STATE LAW CIVIL

CONSPIRACY VERDICT MUST BE SET ASIDE

AS A MATTER OF STATE LAW, THE COURT OF

APPEALS PROPERLY DETERMINED AND

APPLIED A STATE LAW DOCTRINE MADE

PLAIN BOTH BY STATE APPELLATE DECISIONS

AND SOUND LEGAL REASONING

The Court of Appeals’ decision that Dorothy Boy-

anowski’s state-law civil conspiracy claim could not

stand alone, in view of the jury’s determination that the

underlying tort had not occured, likewise presents no

compelling reason meriting further review. The Petition

fails to provide any explanation or authority for its bald

assertion that the Court of Appeals’ decision was “arbi-

trary and capricious”, nor for the bare proposition that

the longstanding principles summarized in West v. Ameri-

can Telephone & Tel. Co., 311 U.S. 223 (1940), should be

revisited or altered.

In determining and applying the pertinent governing

rule of Pennsylvania law in the perceived absence of a

immunity analysis. Siegert, 500 U.S. 226, 232. It would appear

that even this debate, see, e.g., DiMeglio v. Haines, 45 F.3d 790

(4th Cir. 1995) (collecting cases), has now been put to rest as a

result of the Court’s more recent applications_of that guidance

such as in County of Sacramento v. Lewis, 523 U.S. 833, 841-42 n.5

(1998) and Wilson v. Layne, 526 U.S. 603, 609 (1999).

20

state supreme court ruling squarely on point, the Court of

Appeals acted precisely in accordance with the rule this

Court explained in West:

A state is not without law save as its highest

court has declared it. There are many rules of

decision commonly accepted and acted upon by

the bar and inferior courts which are neverthe-

less laws of the state although the highest cour

of the state has never passed upon them. In

those circumstances a federal court is not free to

reject the state rule merely because it has not

received the sanction of the highest state court,

even though it thinks the rule is unsound in

principle or that another is preferable. State law

is to be applied in the federal as well as the state

courts and it is the duty of the former in every

case to ascertain from all the available data what

the state law is and apply it rather than to

prescribe a different rule, however superior it

may appear from the viewpoint of ‘general law’

and however much the state rule may have

departed from prior decisions of the federal

courts. ‘

Where an intermediate appellate state court

rests its considered judgment upon the rule of

law which it announces, that is a datum for

ascertaining state law which is not to be disre-

garded by a federal court unless it is convinced

by other persuasive data that the highest court

of the state would decide otherwise.

.. . We think that the law thus announced

and applied is the law of the state applicable in

the same case and to the same parties in the

federal court and that the federal court is not

free to apply a different rule however desirable

it may believe it to be, and even though it may

21

think that the state Supreme Court may estab-

lish a different rule in some future litigation.

West v. American Telephone & Tel. Co., 311 U.S. 223, 236-238

(citations omitted), quoted with approval in, Hicks on Behalf

of Feiock v. Feiock, 485 U.S. 624, 629-630 (1988) (concluding

that “we are not at liberty to depart from the state appel-

late court’s resolution of these issues of state law.”) The

Petition cites no court that has criticized or questioned

the obvious soundness of this approach or suggested that

it should be abandoned, nor does research reveal any.

Even if the underlying issue, the legal sufficiency of a

state tort law claim without constitutional or other fed-

eral ramifications, were not far outside the appropriate

sphere of Supreme Court review on certiorari, it should

be clear that there was nothing unsound about the Court

of Appeals’ conclusion. The Court of Appeals squarely

applied a decision directly on point from the Pennsylva-

nia Superior Court, GMH Assoc., Inc. v. Prudential Realty

Group, CB, 752 A.2d 889, 905 (Pa. Super. Ct. 2000), a

decision which itself logically followed from prior cases

addressing the same basic flaw at earlier procedural

stages. See, e.g., Rutherfoord v. Presbyterian-University Hos-

pital, 417 Pa. Super. 316, 334, 612 A.2d 500, 509 (1992)

(once court concluded that defendants did not act

unlawfully in terminating plaintiff, claim of civil conspir-

acy must also fail); Nix v. Temple University, 408 Pa. Super.

369, 380, 596 A.2d 1132, 1137 (1991) (no cause of action

for civil conspiracy where underlying claim of tortious

interference with employment contract was not viable);

Rosen v. Tesoro Petroleum Corp., 399 Pa. Super. 226, 238, 582

A.2d 27, 33 (1990) (claim for civil conspiracy must fail,

due to the absence of a valid claim for the underlying

22

tortious acts of malicious prosecution or abuse of pro-

cess), appeal denied, 527 Pa. 636, 592 A.2d 1303 (1991);

Pelagatti v. Cohen, 370 Pa. Super. 422, 436, 536 A.2d 1337,

1344 (1987) (rejecting the argument that a civil conspiracy

to commit illegal acts is actionable in and of itself), appeal

denied, 519 Pa. 667, 548 A.2d 256 (1988); Raneri v. DePolo,

65 Pa.Cmwlth. 183, 187, 441 A.2d 1373, 1376 (1982) (com-

plaint’s failure to sufficiently allege underlying claims for

defamation and interference with business relations also

was fatal to conspiracy count); Rose v. Wissinger, 294 Pa.

Super. 265, 276, 439 A.2d 1193, 1199 (1982) (where com-

plaint fails to set forth sufficient claim for defamation or

outrageous conduct causing emotional distress, there

could be no conspiracy to commit those acts).

Moreover, the basic principle reflected in the forego-

ing cases by Pennsylvania’s intermediate appellate

courts, and applied in this case by the Court of Appeals,

has existed in the Pennsylvania Supreme Court’s own

jurisprudence for nearly a century. In affirming the non-

suit of a claim for fraud and conspiracy to defraud, the

state supreme court adopted the conclusions that “the

significance of a conspiracy is that it gives the person

injured a remedy against parties not otherwise connected

with the wrong” and that “a conspiracy cannot be made

the subject of a civil action unless something is done

which without the conspiracy would give a right of

action, — the damage, not the conspiracy, being the gist of

the action.” Strunk v. Owen, 199 Pa. 73, 48 A. 888 (1901)

(per curiam).

23

CONCLUSION

For all of the foregoing reasons, it should be plain

both that the Petition sets forth no basis for concluding

| that the Court of Appeals’ decision was incorrectly

decided, and that it does not present an issue chat war-

rants resolution or elaboration by this Honorable Court.

Accordingly, the Petition should be denied.

Respectfully submitted,

Stuart L. KNADE

Counsel of Record

Pa. Attorney I.D. #39872

PENNSYLVANIA SCHOOL BOARDS

ASSOCIATION

774 Limekiln Road

New Cumberland, PA 17070-2398

(717) 774-2331

Attorney for Respondents

Capital Area Intermediate Unit,

John Nagle and Ed Frye

PO tit 8 a _