SCHANNE v. ADDIS

Filing 55

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ANITA B. BRODY ON 9/27/2012. 9/27/2012 ENTERED AND COPIES VIA ECF AND U.S. MAIL.(mo, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
ROBERT SCHANNE ,
Plaintiff,
v.
JENNA ADDIS,
Defendant.

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CIVIL ACTION
NO. 11-1851

September 27, 2012

Anita B. Brody, J.
MEMORANDUM

Plaintiff Robert Schanne brings suit against Defendant Jenna Addis for defamation under
Pennsylvania state law.1 I exercise federal diversity jurisdiction over Schanne’s claim pursuant
to 28 U.S.C. § 1332(a)(1). Addis moves for summary judgment.2 For the reasons set forth
below, I will grant Addis’ motion.
I.

BACKGROUND
Plaintiff Robert Schanne, a resident of Pennsylvania, was a physics teacher at Lower

Merion High School (“Lower Merion”) in Ardmore, Pennsylvania. He was hired in September
1997 and officially terminated on January 24, 2011. Defendant Jenna Addis was a student at
Lower Merion from 1999 until she graduated in 2003. Thereafter she attended Tulane
University in New Orleans, Louisiana, where she continues to reside. During her junior and
senior years of high school, Addis was a student in Schanne’s physics and advancement

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On December 19, 2011 Schanne filed a separate suit against Lower Merion School District and District officials.
Schanne v. Lower Merion Sch. Dist., et. al., Case No. 11-cv-7707. In that case he brings claims for civil rights
violations under 42 U.S.C. §§ 1983, 1985 stemming from his involuntary termination. Am. Compl. ¶¶ 43-44. On
September 19, 2012 I ordered that the two cases be designated as related under Local Rule 40.1(b)(3)(A).
2
For purposes of summary judgment, “the nonmoving party’s evidence is to be believed, and all justifiable
inferences are to be drawn in [that party’s] favor.” Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (alteration in
original) (internal quotation marks omitted).

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placement physics classes. She sometimes ate lunch with Schanne in the closet space between
classrooms. Schanne also tutored Addis at her home and served as her senior project advisor.
The record is mixed as to the evolution and timeline of the physical relationship between
Schanne and Addis. According to Addis, their romantic relationship began during her senior
year of high school, escalating from hugging and kissing to inappropriate touching and oral sex.
Pl.’s Resp. Ex. D at 2. She explains that the physical contact began when Schanne was tutoring
her at her home during the fall of her senior year and that they were dating by the spring. Id. at
2. She states that they did not begin having intercourse until after she graduated. Id. at 5.
According to Schanne, the sexual relationship did not begin until after Addis’ graduation. Pl.’s
Compl. 1 ¶ 2. They dated during the summer after she graduated. After she went to college they
were no longer a couple but they would have intercourse when she saw him over breaks. Pl.’s
Resp. Ex. D at 3.
In November 2010, Addis was home in Pennsylvania visiting for Thanksgiving weekend.
That Friday, she called Schanne to see if he wanted to get together. During the call, Schanne
told Addis that he was living with his girlfriend in a home they purchased together. Pl.’s Resp.
Ex. B 102:6-12. The following Monday, November 29, 2010, Schanne and Addis met for coffee
at a bookstore. Addis told Schanne that she was struggling with their past relationship and that it
was affecting her ability to have a meaningful relationship. Def. Ex. A 31:21-22; Pl.’s Resp. Ex.
B 103:4-12. Later that day, Addis visited her neighbor, Susan O’Bannon, who is also a Lower
Merion teacher. O’Bannon had taught Addis biology in the ninth grade and Addis had babysat
for O’Bannon’s children in the past. Id. at 9:11-13. During the visit, Addis told O’Bannon about
the relationship that she had with Schanne while she was a student at Lower Merion.

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The next day, O’Bannon reported the conversation to Lower Merion Principal Sean
Hughes. Def. Ex. A 17:22. O’Bannon initially thought Addis was confiding in her as a friend,
but the next day thought Addis might have reported the relationship to her as a school official.
Id. at 23: 12-22. Though O’Bannon was unsure, she felt it was her professional obligation, as a
school employee, to report the allegation. Id. at 29:6-13. Addis stated that she did not know that
O’Bannon was going to report the information. Pl.’s Resp. Ex. B 90:18-20.
On December 3, 2010, Principal Hughes called Addis. Pl.’s Resp. Ex. B 38:15. Six days
later, Hughes and Lower Merion’s Human Resources Director Martha Yoder called Addis. Pl.’s
Resp. Ex. D. Addis told them about the sexual relationship she had with Schanne during and
after high school. Id. at 1. On December 13, Hughes and Yoder called Addis again. Over the
course of these two conversations Hughes and Yoder took notes and sent them to Addis. Addis
reviewed the notes, made changes and on December 14 sent them back. These notes represent
Addis’ official statement. See P.’s Resp. Ex. D.
On December 15, 2010, the school district administration summoned Schanne for a pretermination Loudermill hearing. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985)
(providing for a mandatory pre-termination hearing for public employees with a constitutionally
protected interest in their jobs). The next day the hearing was conducted by Hughes and Yoder.
Pl.’s Resp. Ex. A 41:4. Schanne was suspended on December 16, 2011. Pl.’s Resp. Ex. C 7.
Schanne refused to attend a follow-up hearing on January 18, 2011. Id. 51:18-21. On January
24, 2011, the School Board officially terminated his employment. Pl.’s Resp. Ex. C 7. On
March 15, 2011 Schanne filed the instant defamation suit against Addis. In addition, Schanne
filed a grievance against Lower Merion. See Def. Status Update and Attached Arbitration
Award, Schanne v. Lower Merion Sch. Dist., et. al. Case No. 11-cv-7707 (ECF No. 20). On

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December 2, 2011 and April 23, 2012 arbitration hearings took place. On July 27, 2012 the
Arbitrator issued her decision, denying Schanne’s grievance and finding that the school district
proved just cause for his discharge. Id. at 26.
II.

LEGAL STANDARD
Summary judgment will be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is “material” if it “might affect the outcome of the suit under the governing
law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is
“genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving
party. Id.
The moving party bears the initial burden of demonstrating that there is no genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must
then “make a showing sufficient to establish the existence of [every] element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. However,
the nonmoving party may not “rely merely upon bare assertions, conclusory allegations or
suspicions” to support its claims. Fireman’s Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965,
969 (3d Cir. 1982).
In essence, the inquiry at summary judgment is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
III.

DISCUSSION
Schanne originally asserted that Addis made three defamatory communications: during

her November 29, 2010 conversation with O’Bannon, and her December 9 and December 13,

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2010 two phone calls with Hughes and Yoder. Pl.’s Opp’n 5. Addis moves for summary
judgment on the grounds that these statements are absolutely privileged and therefore she cannot
be sued for defamation. She argues that the absolute privilege attaches because her
communications were pertinent to a quasi-judicial proceeding—Schanne’s Loudermill hearing
conducted on December 16, 2010.
Pennsylvania has adopted section 587 of the Restatement (Second) of Torts that gives
parties in litigation an absolute privilege with regard to statements that relate to a judicial
proceeding if the communications are preliminary to, instituting, or part of the proceeding.
Pawlowski v. Smorto, 588 A.2d 36, 42 (Pa. Super. Ct. 1991) (citing Restatement (Second) Torts
§ 587 (2012)). A parallel rule exists for witnesses, providing that “a witness is absolutely
privileged to publish defamatory matter concerning another in communications preliminary to a
proposed judicial proceeding or as a part of a judicial proceeding in which he [or she] is
testifying, if it has some relation to the proceeding.” Restatement (Second) Torts § 588 (2012).
Because the final judgment of the tribunal is based on witness testimony, “it is necessary [] that a
full disclosure not be hampered by fear of private suits for defamation.” Restatement (Second)
Torts § 588 cmt. (b) (2012). The Pennsylvania Supreme Court has ruled that “[a]ll
communications pertinent to any stage of a judicial proceeding are accorded an absolute
privilege which cannot be destroyed by abuse.” Binder v. Triangle Publ’ns, Inc., 275 A.2d 53, 56
(Pa. 1971). The absolute privilege applies regardless of the motive of the publisher. Pawlowski,
588 A.2d at 41.
Whether a statement deserves an absolute privilege is a question of law for the court.
Pawlowski, 588 A.2d at 41. The Pennsylvania Supreme Court’s general rule is that statements
“issued in the regular course of judicial proceedings and which are pertinent and material to the

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redress or relief sought” are privileged. Post v. Mendel, 507 A.2d 351, 355 (Pa. 1986). Any
doubt as to whether a statement is “pertinent and material to the redress or relief sought” “is to be
resolved in favor of pertinency and materiality.” Pawlowski, 588 A.2d at 41.
Pennsylvania also applies the absolute privilege to quasi-judicial proceedings. Milliner v.
Enck, 709 A.2d 417, 419 n.1 (Pa. Super. Ct. 1998). This includes hearings before tribunals that
perform judicial functions, such as proceedings by administrative officers, boards, and
commissions. Id. Schanne agrees that the Loudermill hearing constituted a quasi-judicial
proceeding. Pl.’s Opp’n 3 n.1. At oral argument, the attorney for Schanne conceded that the
statements Addis made to Hughes and Yoder on the phone were pertinent to the quasi-judicial
proceeding and therefore entitled to an absolute privilege. The outstanding question is whether
under the rule in Post v. Mendel, Addis’ initial November 29, 2010 statement to O’Bannon when
Addis confided in O’Bannon about her sexual relationship with Schanne was “issued in the
regular course of judicial proceedings” and was “pertinent and material” to the Loudermill
hearing.
Schanne does not dispute that the subject matter of Addis’ statement is “pertinent and
material” to the Loudermill hearing conducted by school authorities.3 Rather, he reads the
requirement “in the regular course of judicial proceedings” very literally, arguing that because
Addis made her statement before the quasi-judicial proceeding began, it was not made “in the
context of regular judicial (or quasi-judicial) proceedings.” Pl.’s Opp’n 3. This interpretation
dramatically curtails the privilege and limits it to statements made during the course of formal
proceedings.
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The Pennsylvania Supreme Court has rejected the privilege for “extrajudicial communications,” such as a letter
complaining about the behavior of opposing counsel to a Disciplinary Board, or sending a copy of a recently-filed
complaint to the media. Post v. Mendel, 507 A.2d at 356; Bochetto v. Gibson, 860 A.2d 67, 73 (Pa. 2004). Because
Addis’ statement formed the basis of the entire investigation and quasi-judicial hearing to follow it, by definition it
is pertinent and material to the proceeding.

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Yet this narrow reading belies the court’s willingness to extend the absolute privilege to
statements made prior to proceedings. The Supreme Court of Pennsylvania noted that to qualify
as privileged, a communication “must bear a certain relationship to the proceeding,” whether it is
“published prior to, or during, a judicial proceeding.” Post v. Mendel, 507 A.2d at 356. The
privilege extends to pleadings, less formal communications such as preliminary conferences,
correspondence between attorneys to further their clients’ interests, and to statements made by
people reporting problems to officials that trigger commencement of judicial or quasi-judicial
proceedings. Marino v. Fava, 915 A.2d 121, 124 (Pa. Super. Ct. 2006) (applying the absolute
privilege to statements an uncle made to mental health officials about his nephew because they
initiated involuntary commitment proceedings); Pawlowski, 588 A.2d at 40-42 (applying an
absolute privilege to a report made by several attorneys to the District Attorney and State Police
that another attorney committed perjury because the statement aligns with the policy reasons for
the privilege: to “ensure[] free and uninhibited access to the judicial system.”); Restatement
(Second) of Torts § 598 cmt. (e) (2012) (stating that “[f]ormal or informal complaints to a
prosecuting attorney or other law enforcement officer concerning violations of the criminal law
are absolutely privileged under the rule stated in § 587.”).4
Just as the privileged statements in Pawlowski and Marino lead to the initiation of later
judicial or quasi-judicial proceedings, Addis’ statement served as the catalyst for Schanne’s
Loudermill hearing. While Pennsylvania courts have not specifically addressed whether students
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Preliminary communications receive protection as long as they are linked to a later judicial proceeding. Comment
(e) to section 588 of the Restatement (Second) of Torts states,
As to communications preliminary to a proposed judicial proceeding, the rule stated in this Section applies
only when the communication has some relation to a proceeding that is actually contemplated in good faith
and under serious consideration by the witness or a possible party to the proceeding. The bare possibility
that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation
when the possibility is not seriously considered.
Restatement (Second) Torts § 588 cmt. (e) (2012). Thus allegations that the school district seriously considered,
investigated, and initiated a proceeding over are protected. Had the allegation failed to produce such a reaction and
no proceeding ever took place, its status as a privileged communication would be more problematic.

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who bring allegations against their teachers are granted an absolute privilege, Indiana, Maryland,
California, and New York have applied an absolute privilege when student allegations against
teachers lead to quasi-judicial proceedings. See Hartman v. Keri, 883 N.E.2d 774 (Ind. 2008);
Reichardt v. Flynn, 823 A.2d 566 (Md. 2003); Brody v. Montalbano, 151 Cal. Rptr. 206 (Cal. Ct.
App. 1978); Weissman v. Mogol, 462 N.Y.S.2d 383 (N.Y. Sup. Ct.1983). Had Addis not told her
former teacher, who had a professional responsibility to report inappropriate teacher-student
relationships, the investigation and hearing would not have commenced.5
Courts must also consider whether applying an absolute privilege in a given case would
promote the privilege’s purpose. The purpose of the privilege is “to afford [parties] freedom of
access to the courts,” to “encourage [witnesses’] complete and unintimidated testimony in court,”
and “to enable [counsel] to best represent his client’s interests.” Binder, 275 A.2d at 56. If not
for this privilege, “a realm of communication essential to the exploration of legal claims [] would
be hindered . . . .” Post v. Mendel, 507 A.2d at 355. In this case, protecting Addis’ statement
furthers the purpose of the privilege.
At oral argument, Schanne focused on the fact that in her deposition, Addis stated that
she went to O’Bannon as a close friend rather than an agent of the school, that she never
intended to go to the school with a complaint, and that she did not know that O’Bannon would be
obligated to talk to school officials based on what she said. Pl.’s Resp. Ex. B, Addis Dep.
141:15-17, 20-22; 137:22-23. Schanne argues that this undercuts the purpose of the privilege.
Intent, however, is not an enumerated requirement for an absolute privilege. Moreover, the
motive of the speaker (be it malicious or not) is entirely irrelevant for absolutely privileged
statements. Pawlowski, 588 A.2d at 41.

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The Loudermill hearing resulted in Schanne’s termination from employment at the school.

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When courts choose to apply the privilege, they deem the policy concerns—encouraging
open communication without fear of retributive lawsuits—to outweigh the right of the
defamation plaintiff to seek redress. Pawlowski, 588 A.2d at 42; Marino v. Fava, 915 A.2d at
124. In this case there are strong policy reasons that justify the application of an absolute
privilege to Addis’ statement. Statistics compiled by the Department of Education reveal that
only 11.6 percent of students who had been harassed by a school employee reported the incident
to a teacher, while 10.6 percent told other employees. U.S. Dep’t of Educ., Office of the Under
Sec’y, Educator Sexual Misconduct: A Synthesis of Existing Literature 35 (2004), available at
http://www2.ed.gov/rschstat/research/pubs/misconductreview/report.pdf [hereinafter DOE
Report]. Some studies estimate that only around 6 percent of all children report sexual abuse by
an adult to someone who can do something about it. Id. at 34.
Another barrier to reporting teacher-student sexual relationships is the emotional
confusion that accompanies the breakdown of the traditional teacher-student relationship. The
teacher-student relationship is characterized by the teacher wielding authority and custody over
the students. Chancellor v. Pottsgrove Sch. Dist., 501 F.Supp.2d 695, 706 (E.D.Pa., 2007).
Because of this dynamic, students do not have the legal capacity to consent to the sexual
advances of their teachers. Id. Addis displayed such conflicting emotions in reporting her
relationship. Addis stated that when she first talked to O’Bannon Addis did not intend to report
the relationship. Then, when explaining to the principal why she had deleted most of the e-mails
that she had received from Schanne, she explained, “It was causing me too much pain and I
didn’t know if I was ever coming forward.” Pl.’s Resp. Ex. B, Addis Dep.141: 12-14. Yet once
the investigation began, she wrote in an e-mail to Ms. O’Bannon that assisting the school in the
investigation was important, and that “[s]omeone else could be at risk if [Schanne] is not

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removed.” Id. at 145:9-19. In Addis’ official statement she explained that she was coming
forward now because she did not want her experience to “happen again to anyone else.” Pl.’s
Resp. Ex. D at 4. She believed that she was unable to have a healthy relationship throughout
college “because of the emotional and physical involvement,” with Schanne, describing him as
her “first,” and admitting that “there is still a ‘very strong attachment’ and that ‘she feels strongly
about him.’” Id. at 5. She explained, “[P]art of me doesn’t want to see him hurt, but he needs to
be held accountable.” Id.
Given the low rates of reporting and the emotional confusion that may accompany
student-teacher sexual relationships, reports of such behavior must be protected and encouraged.
The DOE report, supra, identified five different ways that school officials learn of educator
sexual misconduct: formal complaints, informal complaints, observed abuse, observed suspicious
behaviors, or rumors and/or anonymous reports. DOE Report at 34. It is logical that Addis
confided in a teacher with whom she considered a friend. That she was willing to come forward
to an employee of the school, even without an explicit intent to report the relationship, deserves
protection. She should not be punished simply because she had a friendly relationship with
O’Bannon, or because she had conflicting emotions about reporting. Likewise no teacher should
fear that by relaying a student’s report to the appropriate authorities, the student could be
exposed to a defamation suit. Nor should these protections lapse once students graduate.
Because victims may only come forward years later, they too must be protected and their reports
encouraged.
In this case the importance of encouraging current and former students to come forward
outweighs the potential for a wrongly accused teacher to suffer from a defamatory accusation.
As with other wrongful accusations, false testimony under oath exposes the proponent to a

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prosecution for perjury or false statement. See Binder, 275 A.2d at 56 (noting that “the privilege
exists because the courts have other internal sanctions against defamatory statements, such as
perjury or contempt proceedings.”). In this case, Addis’ statement triggered a quasi-judicial
proceeding in which she testified. She is therefore liable for any false statement she made under
oath. Furthermore, Schanne had an opportunity to be heard at his Loudermill hearing and
arbitration.
IV.

CONCLUSION
Because Addis is entitled to an absolute privilege, I will grant Addis’ motion for

summary judgment.

___/s/ Anita B. Brody____________
ANITA B. BRODY, J.

Copies VIA ECF on _________ to:

Copies MAILED on _______ to:

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