# Opposition Brief — Boyanowski v. Capital Area Intermediate Unit

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1580%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 1011

## Text

'
3 | FILED
‘ek | :
OCT 18 on
No. 00-419 .
CLE
In The ‘~ ————
Supreme Court of the United States
¢

DONALD BOYANOWSKI and
DOROTHY BOYANOWSKI,

Petitioners,

CAPITAL AREA INTERMEDIATE UNIT,
JOHN E. NAGLE and ED FRYE,

Respondents.

¢

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit

¢

. 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 _

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1580%3A2. Public record. Not legal advice.