Kenneth v. Derry Township School District et al

Filing 67

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Christopher C. Conner on 1/7/2022. (mw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DR. KENNETH TAYLOR,

:
:
Plaintiff
:
:
v.
:
:
DERRY TOWNSHIP SCHOOL
:
DISTRICT; DONNA CRONIN, in her :
individual and official capacity;
:
LINDSAY DREW, in her individual and :
official capacity; MARIA MEMMI, in
:
her individual and official capacity;
:
TERRY SINGER, in his individual and :
official capacity; TRICIA STEINER, in :
her individual and official capacity;
:
DAVID OBENSTINE, in his individual :
capacity; JOHN/JANE DOE 1-10,
:
fictitious individuals; and ABC
:
ENTITIES 1-10, fictitious entities,
:
:
Defendants
:

CIVIL ACTION NO. 1:20-CV-1363
(Judge Conner)

MEMORANDUM
Plaintiff Dr. Kenneth Taylor filed this action against his former employer, the
Derry Township School District (“the District”); six members of the Derry
Township School District Board (“School Board”) of Directors, Donna Cronin,
Lindsay Drew, Maria Memmi, Kathy Sicher, Terry Singer, and Tricia Steiner
(collectively “Defendant Directors”); and one private citizen, David Obenstine.
Taylor alleges the defendants deprived him of his constitutional procedural due
process rights and tortiously damaged his reputation. The District, Defendant
Directors, and Obenstine each move to partially dismiss Taylor’s amended
complaint pursuant Federal Rule of Civil Procedure 12(b)(6). We will grant in part

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and deny in part the District’s motion, grant in part and deny in part the Defendant
Directors’ motion, and deny Obenstine’s motion.
I.

Factual Background & Procedural History
Taylor served as the head girls’ varsity lacrosse coach for Hershey High

School in the District from January 2013 to June 24, 2019. (See Doc. 35 ¶¶ 1, 21).
The instant lawsuit arises from the events surrounding the School Board’s decision
to part ways with Taylor after the 2018-2019 lacrosse season.
Taylor’s first six years as head coach were a time of significant success for the
girls’ varsity lacrosse team. The team won the conference and district
championships in 2018 and was runner-up in the 2014, 2015, and 2017 conference
championships. (See id. ¶ 20). The team also placed numerous players on various
conference, regional, and national all-star lists. (See id.) The conference named
Taylor coach of the year in 2017 and 2018. (See id.)
In January of 2019, an unnamed member of the School Board informed
Hershey High School’s athletic director a non-specific accusation had surfaced
regarding Taylor being “sexually inappropriate” with a female lacrosse player. (See
id. ¶ 54). The accusation did not originate with the unnamed school director but
was supposedly brought to their attention by a second school director who heard
the accusation from the player’s parent. (See id.) Taylor alleges the accusation was
false and fabricated by another school director—Cronin—as a means of displacing
Taylor as head coach. (See id. ¶ 28). Cronin purportedly coveted the head coach
position for herself, (see id. ¶¶ 35-37), was a persistent critic of Taylor’s coaching,
(see id. ¶¶ 42, 51-52), and had a history of using her position on the School Board to
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interfere with the girls’ lacrosse program and to undermine Taylor’s authority, (see
id. ¶¶ 30-49, 85).
In the wake of the accusation, the athletic director, after conducting an
inconclusive investigation and consulting with the superintendent, asked Taylor for
his resignation. (See id. ¶¶ 58-62). Taylor denied the accusation but chose to resign
anyway on February 18, 2019, to allow the team to move forward. (See id. ¶ 62).
However, after Taylor’s resignation, the lacrosse players and their parents
inundated the athletic director with statements of support for Taylor and
complaints about his “forced” resignation. (See id. ¶¶ 63-65). The athletic director
held a meeting with Taylor on February 22, 2019, during which the athletic director
accepted Taylor’s recission of the resignation and reinstated Taylor. (See id. ¶ 66).
At the meeting, the athletic director explained Cronin had misled him and directed
him to remove Taylor. (See id.)
Cronin’s alleged campaign to remove Taylor did not end with Taylor’s
reinstatement. Taylor claims Cronin conspired with her fellow school director,
Drew, and a parent of a lacrosse player, Obenstine, to malign Taylor for the purpose
of terminating his tenure as the girls’ varsity lacrosse coach. (See id. ¶¶ 28-29, 57).
To this end, Cronin began soliciting negative information about Taylor. (See id.
¶ 68). The complaint alleges that when individuals denied they possessed any such
information, Cronin falsely accused Taylor of inappropriate conduct, demanding
the individuals to confirm the accusations. (See id. ¶¶ 68, 70). Drew purportedly
solicited false and denigrating information, and he falsely accused Taylor of
inappropriate conduct with a female player in a conversation with a community
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resident in a way that carried with it the implication of criminality. (See id. ¶¶ 67,
70). Obenstine allegedly added to the campaign by angrily expressing “unfounded”
concerns about the safety of the players at a meeting with parents and sent a series
of emails to the athletic director and Taylor accusing the District of covering up
Taylor’s inappropriate conduct. (See id. ¶¶ 74-75).
Despite the ongoing controversy, the girls’ varsity lacrosse team ended the
2018-2019 season on May 15, 2019, with a 17-3 record and won their second
consecutive conference championship. (See id. ¶ 81). The athletic director gave
Taylor his end-of-the-year evaluation on June 19, 2019. (See id. ¶ 82). The
evaluation was extremely positive. (See id.)
On June 24, 2019, the School Board held a meeting to vote, inter alia, on the
retention of coaches for the upcoming year. (See id. ¶ 83). At the meeting, Cronin
initiated a motion to disapprove the retention of Taylor. 1 (See id. ¶ 84). The motion
passed six to three with Defendant Directors voting in favor of the motion. (See id.
¶¶ 27, 85). The only justifications the School Board gave at the meeting were nonspecific accusations of emotional abuse and inappropriate conduct. (See id. ¶ 87).
The School Board did not give Taylor notice of the precise facts underlying the

1

Taylor describes the ending of his tenure as the girls’ varsity lacrosse coach
as a “termination” or “removal.” (See Doc. 35 ¶¶ 1, 26, 29, 66, 139, 144-145, 153, 161,
168-169; Doc. 46 at 19). Based on the facts of the complaint, we find both terms to
be misnomers. Taylor was appointed for only the 2018-2019 school year. (See Doc.
35 ¶ 123). The June 24, 2019 vote came after the end of the 2018-2019 lacrosse
season and after the athletic director gave Taylor his “end of the year evaluation.”
(See id. ¶¶ 81-82). On the pleadings, the more accurate description is that the
School Board voted not to retain Taylor.
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accusations against him. (See id. ¶¶ 86, 88). Nor did the District or School Board
afford Taylor a hearing on the accusations. (See id.) Taylor submitted a right-toknow request to the District shortly after the vote asking for specifics of the
accusations. (See id. ¶ 89). The District declined the request by email on August 8,
2019. (See id. ¶ 91).
Taylor remained popular with the players and their parents, even after the
School Board’s vote. (See id. ¶ 92). When the District began searching for a new
girls’ varsity lacrosse coach for the 2020 season at the end of the summer, Taylor
reapplied for his old position at the request of the athletic director. (See id. ¶¶ 9395). The athletic director interviewed Taylor for the position on September 24, 2019
and recommended the School Board rehire him. (See id. ¶ 96). The School Board
rejected that recommendation on October 7, 2019. (See id. ¶ 97). The vote was once
again six to three, with Defendant Directors all voting against the rehiring of Taylor.
(See id. ¶¶ 97-98).
Taylor avers Cronin, Drew, and Obenstine made a series of false accusations
against him to the other school directors for the purpose of ensuring that he was not
rehired. (See id. ¶¶ 100-104, 133). According to the amended complaint, Cronin
made unspecified inflammatory accusations against Taylor, (see id. ¶ 103); Drew
falsely accused Taylor of bullying players, emotionally abusing players to the point
of self-harm, engaging in sexually inappropriate conduct, and possibly shoving a
player, (see id. ¶ 101); and Obenstine repeated Drew’s accusations and accused
Taylor of being abusive, (see id. ¶¶ 102, 133). Similarly, Drew and Cronin also

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continued to make negative statements about Taylor and recruited individuals to
buttress their false accusations. (See id. ¶ 104).
Taylor filed the present lawsuit against the District; the Defendant Directors,
each in their official and individual capacities; and Obenstine, in his individual
capacity, on August 3, 2020. 2 Taylor filed an amended complaint on December 8,
2020. The District, Defendant Directors, and Obenstine all move to dismiss Taylor’s
amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim for which relief may be granted. The motions are fully briefed and
ripe for disposition.
II.

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

dismissal of complaints that fail to state a claim upon which relief may be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,
Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

2

Taylor also names ten fictitious persons, John/Jane Does 1-10, and ten
fictitious organizations, ABC Entities 1-10 as defendants. Taylor has not yet
identified or served these defendants.
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Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts
a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31
(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a
plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a
claim must be separated; well-pleaded facts are accepted as true, while mere legal
conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual
allegations, it must determine whether they are sufficient to show a “plausible claim
for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550
U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
III.

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

claims under 42 U.S.C. § 1983 against the District and Defendant Directors for
depriving him of his procedural due process rights (Counts I and II). He also
asserts various state-law tort claims against Cronin, Drew, and Obenstine (Counts
III-VI). We begin with Taylor’s Section 1983 claims.
A.

Counts I and II: Section 1983 – Procedural Due Process

Section 1983 of Title 42 of the United States Code creates a private cause
of action to redress constitutional wrongs committed by state officials. 42
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U.S.C. § 1983. The statute is not a source of substantive rights but serves as a
mechanism for vindicating rights otherwise protected by federal law. See
Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 96 F.3d
119, 1204 (3d Cir. 1996). To establish Section 1983 liability, a plaintiff must
prove a deprivation of a “right secured by the Constitution and the laws of the
United States . . . by a person acting under color of state law.” Kneipp, 95 F.3d
at 1204 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).
Neither the District nor the Defendant Directors dispute their status as state
actors. (See Doc. 40 at 6; Doc. 41 at 10-14). Our sole inquiry is whether Taylor
has pled that these defendants violated his constitutional rights.
In the case sub judice, Taylor asserts the District and the Defendant
Directors deprived him of his procedural due process rights under the
Fourteenth Amendment to the United States Constitution. To plead this
claim, Taylor must allege (1) he was deprived of an individual interest that is
encompassed within the Fourteenth Amendment’s protection of life, liberty, or
property, and (2) the procedures afforded him did not provide due process of
law. See Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006).
Taylor asserts the District and the Defendant Directors deprived him of both a
liberty interest (Count I) and a property interest (Count II).
1.

Count I: Procedural Due Process – Liberty Interest

In Count I, Taylor claims the District and the Defendant Directors, both
in their official and individual capacities, deprived him of a liberty interest in

8

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the form of his reputation. (See Doc. 35 ¶¶ 107-118). We will address the
defendants’ arguments for dismissal seriatim.
a.

Official Capacity Claims

Directors Cronin, Drew, Memmi, Sicher, Singer, and Steiner seek
dismissal of Taylor’s Section 1983 claim against them in their official capacities
as they are duplicative of Taylor’s claim against the District. (See Doc. 41 at 9).
A court may dismiss official-capacity claims against individual defendants
when identical claims are brought against the public entity employing them.
See Cuvo v. De Biasi, 169 F. App’x 688, 693 (3d Cir. 2006) (nonprecedential).
The rationale behind this approach is that “a lawsuit against public officers in
their official capacities is functionally a suit against the public entity.” Id.
(citing McMillian v. Monroe County, 520 U.S. 781 (1997)). Our court has
previously dismissed redundant official-capacity claims in circumstances
indistinguishable from those presented here. See, e.g., Doe by Brown v.
Harrisburg Sch. Dist., No. 1:19-CV-1027, 2020 WL 4584372, at *3 (M.D. Pa. Aug.
10, 2020) (Conner, J.) (dismissing official-capacity claim against school
administrators when plaintiffs asserted identical claims against school district);
Judge v. Shikellamy Sch. Dist., 135 F. Supp. 3d 284, 301 (M.D. Pa. 2015) (Brann,
J.) (same); M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412,
419 (M.D. Pa. 2014) (Kane, J.) (same).
Taylor’s Section 1983 claims against the Defendant Directors in their
official capacities duplicate his claims against the District, and Taylor offers no
persuasive justification for retaining both. The court will grant the Defendant
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Directors’ motion and dismiss these claims. Leave to amend will be denied as
futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
b.

Merits

Taylor alleges the District and the Defendant Directors deprived him of
his liberty interest in his reputation when they decided not to rehire him under
circumstances creating a defamatory impression. (See Doc. 35 ¶¶ 107-118).
Deprivation of one’s reputation can sustain a Section 1983 claim but only
under narrow circumstances. See Hill, 455 F.3d at 236. To bring a claim, the
plaintiff must satisfy the “stigma-plus test” by alleging “a stigma to his
reputation plus deprivation of some additional right or interest.” Id. (emphasis
in original). The stigma-plus test requires the plaintiff allege a state employer
created a false and defamatory impression (the “stigma”) about the plaintiff in
connection with the plaintiff’s termination (the “plus”). Id. (citing Codd v.
Velger, 429 U.S. 624, 628 (1977)). When a public employee satisfies the stigmaplus test, the employee is entitled to a name-clearing hearing. Id.
i.

The District

The District argues Taylor’s first Section 1983 claim should be dismissed
because Taylor lacks a sufficient property interest in his continued
employment to satisfy the plus component of the stigma-plus test. (See Doc. 40
at 6-7). The District misunderstands the breadth of circumstances included
within the definition of “termination” under the stigma-plus test. The test
does not require a plaintiff to show a recognized property interest in their
ongoing employment. See Hill, 455 F.3d at 238-39; see also Bd. of Regents of
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State Colleges v. Roth, 408 U.S. 564, 573 (1972) (suggesting nonrenewal of
contract, if coupled with stigmatizing statements, would support procedural
due process claim). The point of allowing procedural due process claims based
on stigmatization is to protect the public employee’s reputation—sullied by the
circumstances of their termination—by affording the plaintiff the opportunity
to clear their name via a public hearing, not to protect any property interest
the plaintiff might have possessed. See Hill, 455 F.3d at 238 (quoting Doe v.
U.S. Dep’t of Just., 753 F.2d 1092, 1108 n.15 (D.C. Cir. 1985)). As noted by our
court of appeals, requiring a plaintiff to plead a “state law-created property
interest in continued employment to satisfy the ‘plus’ in a ‘stigma-plus’ claim”
would “equate the interests protected by the property clause of the [Fourteenth
A]mendment with those protected by the liberty clause.” 3 Id. at 236 (emphasis
in original). We will deny the District’s motion to dismiss Count I.

3

The District also argues Taylor’s position, a part-time job paying only a
nominal salary, is effectively de minimis and therefore cannot satisfy the plus
component of the stigma-plus test. (See Doc. 40 at 8-9). To support this contention,
the District cites a decision by the Seventh Circuit Court of Appeals which held a
public employee fired from “a part-time, honorific job” could not create sufficient
stigma to sustain a Section 1983 procedural due process claim because the plaintiff
retained their primary means of earning a livelihood. See Jungels v. Pierce, 825
F.2d 1127, 1131 (7th Cir. 1987). The Third Circuit has cited Jungels favorably but
only in support of the proposition that termination of a volunteer position could not
satisfy the plus component of the stigma-plus test. See Versarge v. Township of
Clinton N.J., 984 F.2d 1359, 1371 (3d Cir. 1993). Nonetheless, even if we were to
adopt the Jungels holding, Taylor’s claim would still survive a motion to dismiss
because the allegedly false statements made about Taylor are so salacious—
especially the accusation Taylor may have engaged in inappropriate sexual conduct
with a female player—that the stigma would damage his future employment
prospects in other fields. See Robb v. City of Philadelphia, 733 F.2d 286, 294 (3d Cir.
1984).
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ii.

Directors Memmi, Sicher, Singer, and
Steiner

Directors Memmi, Sicher, Singer, and Steiner argue Taylor’s Section
1983 claim against them in their individual capacities should be dismissed
because Taylor fails to plead sufficient facts to satisfy the stigma component.
(See Doc. 41 at 10-13). Satisfying the stigma component requires the plaintiff
allege the purportedly stigmatizing statement was (1) published, (2)
substantially and materially false, and (3) infringed upon the “reputation,
honor, or integrity” of the employee. See Hill, 455 F.3d at 236; Brown v.
Montgomery County, 470 F. App’x 87, 91 (3d Cir. 2012) (nonprecedential)
(citing Ersek v. Township of Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996)).
Taylor does not allege that Directors Memmi, Sicher, Singer, and
Steiner made any false statements regarding his conduct or promulgated a
false impression about himTaylor. (See Doc. 35 ¶¶ 83-88, 97-98, 111). They
merely cast votes against retaining Taylor on June 24, 2019, (see id. ¶¶ 27, 85),
and rehiring Taylor on October 7, 2019, (see id. ¶¶ 97-98). Taylor cites no
decisional law equating a mere vote to a false statement or acknowledging a
vote as creating a false impression. Nor does Taylor provide any authority
supporting his contention that ignoring Cronin and Drew’s “perfidy” can
possibly satisfy the stigma component of the stigma-plus test. (See Doc. 46 at
12 n.2).

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We will grant Memmi, Sicher, Singer, and Steiner’s motion to dismiss
Count I. 4 We will grant Taylor leave to amend because Taylor could plausibly
plead facts showing Memmi, Sicher, Singer, and Steiner created a false
impression about him. See Grayson, 293 F.3d at 108.
iii.

Director Drew

Unlike Memmi, Sicher, Singer, or Steiner, the amended complaint
alleges that Drew made false statements maligning Taylor. Specifically, it
alleges that Drew made a statement in February of 2019 to a community
resident accusing Taylor of engaging in inappropriate conduct with female
players, prompting the resident to ask why police were not immediately
notified of Taylor’s conduct. (See Doc. 35 ¶ 67). The amended complaint also
alleges that Drew made negative statements throughout the summer of 2019
and again on October 7, 2019, when the School Board met and rejected the
athletic director’s proposal to rehire Taylor. (See id. ¶¶ 100-101). In her
various statements, Drew allegedly accused Taylor of bullying players,
emotionally abusing players to the point of self-harm, engaging in

4

Directors Memmi, Sicher, Singer, and Steiner also argue, in the alternative,
Taylor’s Section 1983 claim against them is barred by qualified immunity. (See
Doc. 41 at 13-14). As we have already granted dismissal of Count I against these
defendants, we need not reach this question.
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inappropriate—presumably sexually harassing or sexually abusive—conduct
with a player, and possibly shoving another player. 5 (See id.)
Drew’s February 2019 statement, which took place almost five months
before the School Board voted not to retain Taylor, is too attenuated to satisfy
the stigma component of the stigma-plus test. See Paul v. Davis, 424 U.S. 693,
710 (1976) (holding “the defamation [must] occur in the course of the
termination of employment”). Drew’s other statements, including those made
during the June and October School Board meetings, compel a different result.
These statements go well beyond run-of-the-mill criticism. Drew allegedly
accused Taylor of abusing players to the point of self-harm, being sexually
inappropriate with a player, and possibly assaulting a player. (See Doc. 35
¶ 101). Such statements are deeply stigmatizing and, if taken as true by the
public, difficult or even impossible to escape. See Mercer, 308 F.3d at 845
(accusations of “dishonesty, immorality, criminality, racism, and the like” are
sufficient to satisfy the stigma-plus test). The stigma component of the stigmaplus test is satisfied. Hence, we will not dismiss Count I against Drew.
2.

Count II: Procedural Due Process – Property Interest

Taylor also brings a Section 1983 claim against the District and the
Defendant Directors for depriving him of a property interest without due

5

Taylor does not specify which statements were made at which point in time.
(See Doc. 35 ¶¶ 100-101). We construe the complaint in the light most favorable to
Taylor, and we assume that these statements were made or repeated at relevant
times identified in the amended complaint. See Phillips, 515 F.3d at 233.
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process of law. 6 (See Doc. 35 ¶¶ 119-141). The District and the Defendant
Directors move to dismiss, arguing Taylor lacks a property interest in his
continued employment under Pennsylvania law. (See Doc. 40 at 9-11; Doc. 41
at 15-17).
As discussed supra, the stigma-plus test requires a plaintiff to plead both
stigma to their reputation and deprivation of some additional right or interest.
See Hill, 455 F.3d at 236. State law defines property interests for the purposes
of Fourteenth Amendment due process. See Larsen v. Senate of
Commonwealth of Pa., 154 F.3d 82, 92 (3d Cir. 1998) (citing Roth, 408 U.S. at
569, 577). Taylor asserts Section 514 of Pennsylvania’s Public School Code

6

Taylor does not specify in his amended complaint whether he is bringing his
procedural due process claim in Count II under Section 1983 or the Pennsylvania
Constitution. (See Doc. 35 ¶¶ 119-141). In his opposition brief to the Defendant
Directors’ motion to dismiss, he refers to the claim as a Section 1983 claim. (See
Doc. 46 at 17). But in his opposition brief to the District’s motion to dismiss, he
references it as a state constitutional claim. (See Doc. 47 at 18). Taylor’s plea for
relief in Count II focuses exclusively on damages. (See Doc. 35 at 27).
Commonwealth of Pennsylvania law holds that neither the state constitution nor
any state statute authorizes the award of monetary damages for a violation of the
Pennsylvania Constitution. See Moss v. Pennsylvania, 838 F. App’x 702, 708 (3d Cir.
2020) (nonprecedential) (citing Jones v. City of Philadelphia, 890 A.2d 1188, 1208
(Pa. Commw. Ct. 2006)); Balletta v. Spadoni, 47 A.3d 183, 192-93 (Pa. Commw. Ct.
2012). Hence, we will construe Taylor’s claim as a Section 1983 claim as it provides
the only opportunity for the relief he seeks.
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conveys to him a property right in his expectation of continued employment. 7
(See Doc. 35 ¶ 129). Section 514 requires Pennsylvania school districts to give
employees due notice, a statement of reasons, and the opportunity for a
hearing before the district can “remove” the employee on account of
“incompetency, intemperance, neglect of duty, violation of any of the school
laws of this Commonwealth, or other improper conduct.” 24 PA. STAT. AND
CONS. STAT. ANN. § 5-514; Coleman v. Bd. of Ed. of Sch. Dist. of Phila., 383 A.2d
1275, 1280 (Pa. 1978).
Section 514 creates a property right in a nonprofessional employee’s
expectation of continued employment and obligates school boards to comply
with the procedural safeguards therein when dismissing an employee for
cause. See Lewis v. Sch. Dist. of Phila., 690 A.2d 814, 817 (Pa. Commw. Ct.
1997). Even part-time coaches, like Taylor, can be protected by Section 514.
See Cambria v. Bd. of Sch. Directors of Exeter Twp. Sch. Dist., No. 240 C.D.
2013, 2014 WL 1758467, at *6 (Pa. Commw. Ct. Apr. 30, 2014) (nonprecedential).
Section 514 can also apply when an employee lacks an express contract but is
appointed to a position by a school board on an annual basis. See Kapustik,

7

Taylor also argues he has a property right to continued annual employment
under Kapustik v. School District of City of Arnold, 111 A.2d 169 (Pa. Super. Ct.
1955), but Kapustik grants him no such right. In Kapustik, the plaintiff possessed a
property right, despite not having a written contract. She was appointed by the
school board to her position for the entire school year but dismissed before the
expiration of her term. See id. at 170-173. The holding in Kapustik is not applicable
to Taylor because Taylor had completed his term at the time of the non-retention
vote. (See Doc. 35 ¶¶ 27, 81-82, 85, 123).
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111 A.2d at 171-73. However, the property right created by Section 514 is
contingent on application of the procedural protections described in Section
514. See Dingel v. Commonwealth, State Emp. Ret. Sys., 435 A.2d 664, 668 (Pa.
Commw. Ct. 1981); see also Lewis, 690 A.2d at 817 (citing Dingel, 435 A.2d at
668). Under Pennsylvania law, an employee must be “removed” to trigger
these procedural protections. See Moriarta v. State Coll. Area Sch. Dist., 601
A.2d 872, 873-74, 874 n.6 (Pa. Commw. Ct. 1992). Unlike Taylor’s libertyinterest claim, discussed supra, the “termination [of a school employee] at the
expiration of a contract” does not constitute removal under Section 514. Id.
Taylor’s appointment was for the 2018-2019 school year. (See Doc. 35
¶ 123). The School Board voted against retaining Taylor as the girls’ varsity
lacrosse coach only after the expiration of his appointment. (See id. ¶¶ 27, 8182, 85). Consequently, Section 514 is not implicated, and Taylor does not
possess a property right in his expectation of continued employment. See
Moriarta, 601 A.2d at 873-74. Without a state-law property right, Taylor’s
continued employment is not protected by the due process clause of the
Fourteenth Amendment.
Taylor asserts new facts in his opposition brief which may cure the
defect identified herein; specifically, alleging he was dismissed before his
appointment ended. (See Doc. 47 at 20); see also Commonwealth of Pa. ex rel.
Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“[I]t is axiomatic
that the complaint may not be amended by the briefs in opposition to a motion
to dismiss.” (citation omitted)). Accordingly, we will dismiss Count II in its
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entirety but allow Taylor the opportunity to amend his complaint to
incorporate these new factual allegations. See Grayson, 293 F.3d at 108.
B.

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

Taylor brings the following state law tort claims against Drew, Cronin,
and Obenstine: civil conspiracy (Count III), tortious interference (Count IV),
false light (Count V), and defamation (Count VI). Obenstine moves to dismiss
all four state law claims. Drew and Cronin move to dismiss all but Count III.
1.

Counts III, IV, V, and VI Against Obenstine

Obenstine contends we should dismiss Count III, IV, V, and VI against
him because each claim is legally deficient as pled. Taylor’s civil conspiracy
claim in Count III is derivative of his underlying tort claims in Counts IV, V,
and VI. Therefore, we address the underlying tort claims first.
a.

Count IV – Tortious Interference

Pennsylvania adopts the elements of a tortious interference claim
defined in the Restatement (Second) of Torts § 766. See Windsor Sec., Inc. v.
Hartford Life Ins. Co., 986 F.2d 655, 659 (3d Cir. 1993); Glenn v. Point Park
Coll., 272 A.2d 895, 897-99 (Pa. 1971); Thompson Coal Co. v. Pike Coal Co., 412
A.2d 466, 470-71 (Pa. 1979). Pennsylvania recognizes two categories of tortious
interference: tortious interference with existing contractual relationships and
tortious interference with prospective contractual relationships. See Acumed
LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 212 (3d Cir. 2009). Taylor
asserts Obenstine, in conjunction with Drew and Cronin, committed both torts
by orchestrating a smear campaign targeted at Taylor for the purpose of
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ousting him from his coaching position and preventing him from being
rehired. (See Doc. 35 ¶¶ 152-156).
To state a claim for tortious interference with an existing contractual
relationship, a plaintiff must plead (1) the existence of a contractual
relationship; (2) purposeful action by the defendant intended to harm the
relationship which induced a third party to breach or otherwise not perform
the contract; (3) the absence of some privilege or justification protecting the
defendant’s conduct; and (4) actual damage to the plaintiff as a result of that
conduct. See Acumed, 561 F.3d at 212; Al Hamilton Contracting Co. v. Cowder,
644 A.2d 188, 191 (Pa. Super. 1994). Taylor does not allege the smear campaign
resulted in either Taylor or the District breaching the terms of his
appointment. (See Doc. 35 ¶¶ 152-156). Hence, Taylor has not pled facts
sufficient to sustain a claim for tortious interference with existing contractual
relationships. See Dommel Props. LLC v. Jonestown Bank & Tr. Co., 626 F.
App’x 361, 367 (3d Cir. 2015) (nonprecedential) (finding Pennsylvania case law
requires plaintiffs to allege breach). To state a claim for tortious interference
with prospective contractual relations under Pennsylvania law, a plaintiff must
plead (1) the existence of a prospective contractual relationship; (2) purposeful
action by the defendant intended to prevent the prospective contractual
relationship from forming; (3) the absence of some privilege or justification
protecting the defendant’s conduct; and (4) actual damage to the plaintiff as a
result of that conduct. See Acumed, 561 F.3d at 212; Glenn, 272 A.2d at 898. A
prospective contractual relationship is “something less than a contractual
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right, something more than a mere hope.” Thompson, 412 A.2d at 471. The
standard is an objective one, namely, whether the allegations establish a
“reasonable probability” a contract would have arisen absent the defendant’s
interference. See id. (quoting Glenn, 272 A.2d at 897).
The athletic director’s recommendation the School Board rehire Taylor
squarely gives rise to a reasonable probability the School Board would have
hired Taylor but for the alleged smear campaign. (See Doc. 35 ¶ 96). Taylor
avers that Obenstine carried out the campaign for the purpose of preventing
his rehiring as the girls’ varsity lacrosse coach. (See id. ¶¶ 153-154), and there
is no reasonable justification for Obenstine’s alleged interference based upon
the allegata. Taylor also asserts actual damages: the School Board’s decision
not to rehire his coaching services resulted in a loss of income. (See id. ¶ 155).
Taylor has pled sufficient facts to a state plausible claim for tortious
interference with a prospective contractual relationship. We will deny
Obenstine’s motion to dismiss Count VI to the extent it relates to Taylor’s
tortious interference with a prospective contractual relationship. Taylor
asserts additional factual allegations in his opposition brief that indicate the
School Board may have breached the terms of his appointment. (See Doc. 47
at 20). Hence, we will grant Taylor leave to amend this claim. See Grayson,
293 F.3d at 108.
b.

Count V – False Light

False light is one of four torts Pennsylvania recognizes as protecting
individuals from invasions of privacy. See Graboff v. Colleran Firm, 744 F.3d
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128, 136 (3d Cir. 2014) (citing Marks v. Bell Tel. Co., 331 A.2d 424, 430 (1975)).
Pennsylvania derives the definition of false light from the Restatement
(Second) of Torts and imposes liability on defendants who publish material
that “is not true, is highly offensive to a reasonable person, and is publicized
with knowledge or in reckless disregard of its falsity.” Id.; Larsen v. Phila.
Newspapers, Inc., 543 A.2d 1181, 1188 (Pa. Super. Ct. 1988) (en banc) (citing
RESTATEMENT (SECOND) OF TORTS § 652E (AM. L. INST. 1977)). Pennsylvania
courts give a broad reading to the idea of falsity. Falsity encompasses not only
untrue statements but also “selectively printed or broadcast true statements or
pictures . . . which create a false impression.” Phila. Newspapers, 543 A.2d at
1189. Even when a statement is true in the literal sense, it may be susceptible
to inferences casting an individual in a false light and thereby give rise to a
false light claim. See id. Nonetheless, the misrepresentation must be
sufficiently injurious that “serious offense may reasonably be expected to be
taken by a reasonable man in his position.” RESTATEMENT (SECOND) OF TORTS
§ 652E, cmt. c (AM. L. INST. 1977)).
Obenstine contends his statements about Taylor, even if untrue, cannot
be read as casting Taylor in a false light offensive to a reasonable person. (See
Doc. 42 at 23-25). We are unpersuaded. Taylor avers Obenstine repeated
Drew’s accusations of bullying, emotionally abusing players to the point of selfharm, possibly shoving a player, and possibly engaging in sexually
inappropriate conduct. (See Doc. 35 ¶¶ 101-102). Obenstine also purportedly
accused Taylor of being abusive before, during, and after the 2019 lacrosse
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season. (See id. ¶ 133). Such allegations, particularly when leveled at a high
school coach, are serious enough that a reasonable person could find them
highly offensive. We will deny Obenstine’s motion to dismiss Taylor’s false
light claim.
c.

Count VI – Defamation

Under Pennsylvania law, a plaintiff bringing a defamation claim must
allege (1) the communication was defamatory in nature, (2) the communication
was published by the defendant, (3) the communication applied to the plaintiff,
(4) the recipient of the communication understood its defamatory meaning and
its application to the plaintiff, and (5) the plaintiff suffered special harm as a
result of the communication’s publication. See 42 PA. CONS. STAT. § 8343(a);
Graboff, 744 F.3d at 135. If the court determines at the outset the
communication in question is not capable of defamatory meaning, the claim
must be dismissed for failure to state a claim. See Remick v. Manfredy, 238
F.3d 248, 261 (3d Cir. 2001). However, dismissal is only appropriate when the
nondefamatory reading constitutes “the only reasonable interpretation of the
statement.” Hill v. Cosby, 665 F. App’x 169, 174 (3d Cir. 2016)
(nonprecedential) (citing Zartman v. Lehigh Cty. Humane Soc’y, 482 A.2d 266,
269 (Pa. Super. Ct. 1984)).
Obenstine contends his alleged statements are not capable of
defamatory meaning. (See Doc. 42 at 7-14). A defamatory statement is one
that “tends so to harm the reputation of another as to lower him in the
estimation of the community or to deter third persons from associating or
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dealing with him.” Remick, 238 F.3d at 261 (quoting Tucker v. Fischbein, 237
F.3d 275, 282 (3d Cir. 2001)). Statements that are “merely annoying or
embarrassing” do not qualify as defamatory, nor do “rhetorical hyperbole or
. . . vigorous epithet[s].” Beverly Enters., Inc. v. Trump, 182 F.3d 183, 187 (3d
Cir. 1999) (quoting Kryeski v. Schott Glass Techs., Inc., 626 A.2d 595, 601 (Pa.
Super. Ct. 1993)). Crucially, the statement must be capable of being proven
false to give rise to a claim of defamation. See, e.g., Milkovich v. Lorain
Journal Co., 497 U.S. 1, 19-20 (1990).
Taylor’s amended complaint describes Obenstine making five negative
statements about Taylor. Some of these statements are sufficient to sustain a
defamation claim. Obenstine’s accusations Taylor emotionally abused players
to the point of self-harm and engaged in sexually inappropriate conduct clearly
rise to the level of defamatory. (See Doc. 35 ¶¶ 101-102). Both statements, if
taken to be true, are prone to lower the community’s estimation of a high
school coach. See Remick, 238 F.3d at 261. Similarly, Obenstine’s statement
about assaulting a player by shoving her could be read as defamatory. (See
Doc. 35 ¶¶ 101-102). Obenstine also purportedly accused Taylor of being
abusive. (See id. ¶ 133). Although only pled in vague terms, this statement
could plausibly be read as defamatory. Abuse is a serious accusation to level at
a high school coach—one likely to lower the coach’s esteem in the community
and can carry the connotation of criminality. See Remick, 238 F.3d at 261. We
construe the complaint in a light most favorable to the nonmoving party. For

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these reasons, we will thus deny Obenstine’s motion to dismiss Taylor’s
defamation claim with respect to each of these statements.
In contrast, Obenstine’s accusation Taylor bullied his players is too
commonplace an accusation to constitute defamation. (See Doc. 35 ¶¶ 101-102);
see also Purcell v. Ewing, 560 F. Supp. 2d 337, 343-44 (M.D. Pa. 2008) (Conner,
J.) (holding accusing a plaintiff of being a “bully” is not defamatory) (citing
Beverly Enters., 182 F.3d at 187). The same is true of Obenstine’s angry
expression of concern about player safety at a meeting between the parents of
lacrosse players and the athletic director. (See Doc. 35 ¶ 74). Concerns about
safety, without more, are simply not defamatory. Obenstine also allegedly
deflected a conversation away from the conduct of a particular lacrosse player
and onto Taylor’s supposed inappropriate conduct. (See id. ¶ 79). Deflecting a
conversation is not defamatory. Consequently, we will grant Obenstine’s
motion with respect to the bullying, player safety, and deflection statements.
d.

Count III – Civil Conspiracy

To state a claim for civil conspiracy, a plaintiff must set forth the
following allegations: “(1) a combination of two or more persons acting with a
common purpose to do an unlawful act or to do a lawful act by unlawful means
or for an unlawful purpose; (2) an overt act done in pursuance of the common
purpose; and (3) actual legal damage.” Livingston v. Borough of Edgewood,
430 F. App’x 172, 178 (3d Cir. 2011) (nonprecedential) (quoting Gen.
Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 313 (3d Cir. 2003));
see also Fiedler v. Spencer, 231 A.3d 831, 838 (Pa. Super. Ct. 2020), petition for
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allowance of appeal denied, 241 A.3d 335 (Pa. 2020). As a predicate to liability
for civil conspiracy, the complaint must allege a distinct underlying tort. See
Muth v. Woodring, 755 F. App’x 109, 115 (3d Cir. 2018) (nonprecedential)
(quoting Boyanowski v. Cap. Area Intermediate Unit, 215 F.3d 396, 405-406 (3d
Cir. 2000)).
Obenstine argues Taylor’s civil conspiracy claim is legally deficient
because Taylor failed to successfully plead any underlying tort in the amended
complaint. (See Doc. 42 at 20-21). As explained supra, Taylor successfully
alleges three underlying torts: tortious interference with a prospective
contract, false light, and defamation. (See Doc. 35 ¶¶ 152-172). Taylor also
identifies the parties to the conspiracy (Drew, Cronin, and Obenstine), (see id.
¶ 143); their common purpose, (see id. ¶¶ 143-144); and numerous overt acts
done in pursuance of that common purpose—including making false
statements, (see id. ¶¶ 100-103, 133, 145), and soliciting false allegations, (see id.
¶¶ 29, 68, 70, 104). Lastly, Taylor alleges legal damages in the form of lost
income and injury to his reputation. (See id. ¶ 150). All the elements of a civil
conspiracy claim are present in the facts pled. We will deny Obenstine’s
motion to dismiss Count III.
2.

Counts IV, V, and VI Against Drew and Cronin

Pennsylvania grants high public officials absolute immunity from “all
civil suits for damages arising out of false defamatory statements and even
from statements or actions motivated by malice.” Smith v. Borough of
Dunmore, 633 F.3d 176, 181 (3d Cir. 2011) (quoting Lindner v. Mollan, 677 A.2d
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1194, 1195 (Pa. 1996)). The purpose of the high public official immunity
doctrine “is not to benefit the official but to protect society’s interest in the
unfettered discussion of public business.” Heller v. Fulare, 454 F.3d 174, 178
(3d Cir. 2006). Pennsylvania school directors constitute high public officials.
See, e.g., Caristo v. Blairsville-Saltsburg Sch. Dist., 370 F. Supp. 3d 554, 563
(W.D. Pa. 2019) (collecting Third Circuit cases holding school board members
are high public officials); Cutler v. Bellefonte Area Sch. Dist., 97 F. Supp. 3d
586, 589 (M.D. Pa. 2015) (holding school board member is a high public official);
Kohn v. Sch. Dist. of City of Harrisburg, 817 F. Supp. 2d 487, 512 (M.D. Pa.
2011) (same); Zugarek v. S. Tioga Sch. Dist., 214 F. Supp. 2d 468, 479 (M.D. Pa.
2002) (same); Matta v. Burton, 721 A.2d 1164, 1166 (Pa. Commw. Ct. 1998)
(same).
To receive the protections of this immunity, defendants’ allegedly
tortious conduct must be closely related to the exercise of their official duties
and within the scope of their authority. See Smith, 633 F.3d at 181-82;
McCormick v. Specter, 275 A.2d 688, 689 (Pa. Super. Ct. 1971). For example,
high public official immunity protected defamatory statements made by a
mayor attacking a person in a press release. See McKibben v. Schmotzer, 700
A.2d 484, 491-92 (Pa. Super. Ct. 1997). But it did not protect a statement by
that mayor attacking the same person when made in conjunction with a
private legal proceeding. See id. at 492. Consequently, we must examine
whether Drew and Cronin’s allegedly tortious conduct under each count was

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closely related to their official public duties or whether they were acting as
private citizens.
Pennsylvania courts focus on two factors when deciding if a particular
line of conduct was closely related to a defendant’s official duties: “(1) the
formality of the forum in which the words were spoken or published, and (2)
the relationship of the legitimate subject of governmental concern to the
person seeking damages.” Heller, 454 F.3d at 178 (citing Hall v. Kiger, 795 A.2d
497, 501 (Pa. Commw. Ct. 2002)). Drew and Cronin’s statements during formal
School Board meetings and votes on School Board decisions, even if false and
malicious, are obviously protected by high public official immunity. See
Heller, 454 F.3d at 179-80 (collecting cases demonstrating even accusations of
explicitly criminal conduct are protected by high public official immunity). We
will grant Drew and Cronin’s motion to the extent Taylor’s state-law claims are
premised on actions taken by these defendants during official meetings of the
School Board.
Taylor alleges certain conduct by Drew and Cronin, however, arguably
undertaken outside of their official capacities. For example, Cronin allegedly
contrived the original accusation that Taylor engaged in sexually inappropriate
conduct. (See id. ¶¶ 28, 54-55). Drew and Cronin also allegedly solicited
individuals outside of School Board meetings to provide false and denigrating
information about Taylor. (See id. ¶¶ 28, 68, 70, 84, 104). Whether certain acts
occurred within the scope of Drew and Cronin’s official duties is a fact-specific
determination better suited for resolution at the summary judgment stage or at
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trial, on a fully developed record. See, e.g., Ferrone v. Onorato, 439 F. Supp.
2d 442, 455 (W.D. Pa. 2006), aff'd, 298 F. App’x 190 (3d Cir. 2008)
(nonprecedential).
For the reasons set forth above, we will deny the motion to dismiss
Counts IV, V, and VI against Drew and Cronin as to Drew and Cronin’s actions
outside of their official capacities.
IV.

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

forth more fully herein. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated:

January 7, 2022

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