Foster v. Crestwood School District et al
MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/22/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 3:16-1096
DISTRICT, et al.,
Plaintiff Margaret Foster has been the Principal of Fairview Elementary
School, which is part of the Crestwood School District (“CSD”), since 2012.
In May 2015, the Superintendent of Schools for CSD announced that he was
retiring effective January 2016. Plaintiff then applied for the Superintendent
position. At a November 19, 2015 meeting, the CSD Board of Directors (“CSD
Board”) accepted the Human Resources Committee’s recommendation that
the Board enter into an agreement with plaintiff to serve as the
Superintendent of Schools for CSD effective January 8, 2016 through June
30, 2019, at an initial salary of $115,000 per year, contingent upon receipt of
necessary Superintendent qualification documentation/clearances and subject
All facts are taken from plaintiff’s complaint, (Doc. 1), unless otherwise
noted. The facts alleged in plaintiff’s complaint must be accepted as true in
considering the defendants’ motion to dismiss. See Dieffenbach v. Dept. of
Revenue, 490 Fed.Appx. 433, 435 (3d Cir. 2012); Evancho v. Evans, 423
F.3d 347, 350 (3d Cir. 2005).
to review of the final contract terms by the CSD Solicitor. On November 27,
2015, the President of the CSD Board and plaintiff signed a Contract for
Employment of the Superintendent of CSD (the “Contract”) after it was
approved by the District Solicitor. The Contract provided that the CSD would
function in accordance with the provisions of the Public School Code.
Subsequently, plaintiff completed all of the requirements to be Superintendent
and advised CSD.
At the December 10, 2015 CSD Board meeting, three newly-elected
CSD Board Directors, including defendants Ron Sturgeon and Joseph
Kaminski, became part of the Board. At this meeting, the new CSD Board
held an executive session and passed a verbal motion which was added to
the agenda to rescind the Board’s action of November 19th which had
approved entering into the agreement with plaintiff to serve as the new CSD
Superintendent. Six Board Directors voted in favor of the rescission, including
defendants Kaminski, Sturgeon and Maureen McGovern. Plaintiff alleges that
when the CSD Board and the three individual defendants voted to rescind the
Board’s prior action, they knew that their rescission was unlawful.
Prior to the next CSD Board meeting, the directors and the solicitor were
advised that plaintiff had completed the course work, testing and certification
process and currently held a valid Superintendent Letter of Eligibility.
Nonetheless, at the January 7, 2016 CSD Board meeting, the CSD Board
passed a motion that appointed Brian Waite as Acting CSD Superintendent
for up to one year.
The CSD Board then held a special meeting on April 11, 2016 and
approved the appointment of Joseph Gorham as the CSD Superintendent.
Gorham started his new position as Superintendent on April 13, 2016.
Plaintiff alleges that “[t]he action of the Defendants rescinding the CSD
Board’s prior appointment of [her] and prior approval of [her] Contract was
without legal basis or authority, either in the Public School Code or otherwise.”
Plaintiff alleges that the appointments of Waite and Gorham were invalid. She
also alleges defendants CSD and the CSD Board failed to provide her with
the rights provided in the Contract and required by law, including “the right to
proper notice and a fair and impartial hearing prior to terminating her
Contract.” As a result of defendants’ alleged unlawful conduct, “plaintiff has
suffered and incurred damages, including lost wages and benefits,
humiliation, embarrassment, injury to her reputation and emotional distress.”
(Doc. 1 at ¶’s 36-39).
On June 8, 2016, plaintiff filed the instant civil rights action pursuant to
42 U.S.C. §1983 against defendants CSD, CSD Board of Directors, Sturgeon,
Kaminski and McGovern. (Doc. 1). Plaintiff sues Sturgeon, Kaminski and
McGovern only in their individual capacities. Plaintiff alleges that her 14th
Amendment procedural due process rights were violated with respect to her
termination as CSD Superintendent.
Specifically, in Count I, plaintiff alleges that she had a protected
property interest in public employment as Superintendent of CSD under the
Contract and under the Pennsylvania Public School Code (the “Code”), 24
Pa.C.S. §1-101, et seq. Plaintiff alleges that she was not afforded predeprivation due process by all defendants seemingly under the requirements
of Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 (1985). She alleges
that both the Contract and the Code require that she be given due process
before termination of the Contract. In particular, plaintiff alleges that
defendants failed to give her notice of the reasons for the rescission of her
appointment as Superintendent and her employment agreement, and that
defendants failed to hold a hearing regarding their decision to rescind her
appointment. As such, plaintiff avers that all of the defendants violated her
procedural due process rights under the 14th Amendment.
Plaintiff also alleges that the three individual defendants improperly
interfered with her appointment and the Contract in retaliation for actions she
took regarding certain CSD employees when she was Principal of the
Plaintiff states that post-deprivation remedies are inadequate since
defendants already hired Gorham as Superintendent on April 11, 2016, and
that he has held the position with the approval and at the direction of the
defendants. She also alleges that “defendants’ actions were done with a
reckless, callous and/or deliberate indifference to [her] federally protected
rights.” (Doc. 1 at ¶ 52).
As relief in Count I, plaintiff seeks compensatory damages and punitive
damages as well as attorneys’ fees pursuant to 42 U.S.C. §1988 and costs.
In Count II, plaintiff raises a state law breach of contract claim against
defendants CSD and CSD Board. Plaintiff alleges that she satisfied all
conditions of the Contract to hire her as Superintendent and she met all legal
requirements necessary for her to serve in this position effective January 8,
2016. Plaintiff alleges that defendants CSD and CSD Board breached her
Contract “by attempting to rescind it without proper cause and without notice
or a hearing” and, “by appointing an Acting Superintendent on January 7,
2016 and failing to allow [her] to take office as the Superintendent of CSD on
January 8, 2016.” Plaintiff states that due to defendants’ breach, she suffered
harm “in the form of lost wages and benefits that were and are due to her
under the Contract.” (Doc. 1 at ¶’s 54-57).
In Count III, plaintiff alleges that defendants CSD and CSD Board
violated the School Code since it requires that there be one of several
specified causes for terminating a Superintendent’s contract and that
termination of such a contract can only occur “following statutorily specified
notice of a hearing followed by a hearing conducted in accordance with the
Local Agency Law.” Specifically, plaintiff alleges that defendants violated the
Code by attempting to rescind her appointment as Superintendent and her
Contract without proper cause and, without proper notice and an opportunity
to be heard. She states that “there is no authority in the Code allowing for a
newly elected school board to rescind a Superintendent’s employment
contract that has been approved by and signed on behalf of a prior school
board.” Thus, plaintiff alleges that defendants “violated the Code by
improperly rescinding [her] appointment by the prior CSD Board, by
appointing an Acting Superintendent on January 7, 2016, by failing to allow
[her] to take her position as Superintendent of CSD effective January 8, 2016
and by appointing Joseph Gorham as Superintendent on April 11, 2016.”
(Doc. 1 at ¶’s 59-63).
As relief in Counts II and III, plaintiff seeks compensatory damages as
well as attorneys’ fees and costs.
Pending is the motion to dismiss plaintiff’s complaint, (Doc. 1), for failure
to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) filed jointly by all
defendants, (Doc. 11), on August 29, 2016. Defendants filed their brief in
support on September 12, 2016, (Doc. 17), along with an appendix of five
exhibits, (Doc. 16). After being granted an extension of time, plaintiff filed her
brief in opposition to defendants’ motion on October 6, 2016 with seven
attached exhibits, including plaintiff’s Declaration. (Doc. 24). On October 20,
2016, defendants filed a reply brief. (Doc. 28). Defendants’ Rule 12(b)(6)
motion is ripe for disposition.
Defendants also filed a motion to strike plaintiff’s Declaration, (Doc. 242), on October 19, 2016, (Doc. 26), with a brief in support, (Doc. 27). Plaintiff
filed her brief in opposition to defendants’ motion to strike on November 2,
2016. (Doc. 30). On November 15, 2016, defendants filed a reply brief. (Doc.
31). Defendants’ motion to strike is also ripe for disposition.
The court has jurisdiction over this case pursuant to 28 U.S.C. §1331
and 28 U.S.C. §1343(a) because plaintiff avers violations of her due process
rights under the 14th Amendment of the U.S. Constitution. The court can
exercise supplemental jurisdiction over plaintiff’s state law claims under 28
U.S.C. §1367. Venue is appropriate in this court since the alleged
constitutional violations occurred in this district and all parties are located
here. See 28 U.S.C. §1391.
STANDARDS OF REVIEW
Motion to Dismiss
The defendants’ motion to dismiss is brought pursuant to the provisions
of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of”
necessary elements of the plaintiff's cause of action. Id. Furthermore, in order
to satisfy federal pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief,” which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff's claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat'l
Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is justified
only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004).
The school district, the Board and the school officials are state actors
for purpose of §1983. See Kline ex rel. Arndt v. Mansfield, 454 F.Supp.2d
258, 262 (E.D.Pa. 2006).
To state a claim under section 1983, a plaintiff must meet two threshold
requirements. She must allege: 1) that the alleged misconduct was committed
by a person acting under color of state law; and 2) that as a result, she was
deprived of rights, privileges, or immunities secured by the Constitution or
laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v.
Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels
v. Williams, 474 U.S. 327, 330-331 (1986). If a defendant fails to act under
color of state law when engaged in the alleged misconduct, a civil rights claim
under section 1983 fails as a matter of jurisdiction, Polk Cnty. v. Dodson, 454
U.S. 312, 315 (1981), and there is no need to determine whether a federal
right has been violated. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
“A defendant in a civil rights action must have personal involvement in
the alleged wrongs; liability cannot be predicated solely on the operation of
respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir.
1988). See also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)(citing
Rode). “Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207.
Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997);
Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995). As explained
A defendant in a civil rights action must have personal
involvement in the alleged wrongs. . . . [P]ersonal
involvement can be shown through allegations of
personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be
made with appropriate particularity.
Rode, 845 F.2d at 1207.
With respect to punitive damages for a §1983 violation, this remedy is
only available “when the defendant’s conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.” Smith v. Wade, 461 U.S. 30 (1983).
Regarding federal civil rights claims, “reckless indifference” refers to the
defendant’s knowledge of the illegality of his actions, not the egregiousness
of his actions. Alexander v. Riga, 208 F.3d 419, 431 (3d Cir. 2000) (citing
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999)). The Third Circuit held
punitive damages require that “the defendant’s conduct must be, at a
minimum, reckless or callous.” Young v. Pleasant Valley School Dist., 2013
WL 417739, *10 (M.D.Pa. Feb. 13, 2008) (quoting Savarese v. Agriss, 885
F.2d 1194, 1204 (3d Cir. 1989)). “Punitive damages might also be allowed if
the conduct is intentional or motivated by evil motive, but the defendant’s
action need not necessarily meet this higher standard.” Id.
The defendants argue that, pursuant to Rule 12(6), the plaintiff’s
complaint must be dismissed for failure to set forth actionable claims against
them. Specifically, the defendants make the following arguments: 1) the
plaintiff’s 14th Amendment due process claim in Count I fails as a matter of
law since she did not have a property interest in her prospective employment
as CSD Superintendent and since she failed to utilize the processes and
remedies available to her under State law; 2) the individual defendants are
entitled to qualified immunity regarding plaintiff’s due process claim; 3) the
plaintiff failed to allege that the individual defendants were motivated by evil
intent or that their conduct involved reckless or callous indifference, which
thereby precludes her claim for punitive damages; 4) the plaintiff’s breach of
contract claim in Count II fails as a matter of law since the Contract was void
and unenforceable and cannot be asserted against the Board; and 5) the
plaintiff’s claim for violation of the School Code in Count III is not actionable.
Defendants’ Motion to Strike Plaintiff’s Declaration
In her opposition to defendants’ motion to dismiss, plaintiff relies in part
on facts included in her October 6, 2016 Declaration. (Doc. 24-2). Plaintiff’s
Declaration is supported by other exhibits which she submitted with it,
including, a video of the November 19, 2015 CSD Board meeting, an email
thread and an unsworn third party affidavit of Cecelia Chmiola. Therefore, at
the outset, the court must determine whether the plaintiff’s Declaration
attached to her brief in opposition to defendants’ motion to dismiss may be
considered for present purposes or whether it should be stricken.
Defendants contend that plaintiff is using her Declaration improperly to
try and amend her complaint by adding supplemental factual allegations in
opposition to their motion to dismiss which are based in part on the videos
and the non-party affidavit. Defendants cite to Levey v. Brownstone Inv.
Group, LLC, 2013 WL 3285057, *3-*4 (D.N.J. June 26, 2013), aff’d 590
Fed.Appx. 132 (3d Cir. 2014), in which the court denied plaintiff’s request to
submit an audio recording and a non-party affidavit, and held that it “may not
consider supplemental factual allegations that are submitted in opposition to
a motion to dismiss because such documents do not constitute pleadings
under Rule 7(a).” Defendants seek to have plaintiff’s Declaration as well as
any reference to it contained in her opposition brief stricken.
Plaintiff concedes that “[her] Declaration was meant to supplement the
allegations in [her] Complaint in the event that an amendment to the
Complaint would become necessary.” (Doc. 30 at 3). Plaintiff points out that
while the court may decline consideration of the supplemental allegations in
her Declaration for purpose of deciding defendants’ motion to dismiss, it could
consider her Declaration to show that an amendment to her complaint would
not be futile. Plaintiff cites to McMahon v. General Dynamics Corp., 933
F.Supp.2d 682, 696-97 (D.N.J. 2013), to support her contention that the court
should rely on her Declaration in consideration of whether one of her claims,
which is found to be subject to dismissal, should be dismissed without
prejudice to allow her an opportunity to amend her pleading. Defendants also
cite to McMahon in support of their motion to strike plaintiff’s Declaration since
the court did not consider the supplemental factual allegations in the plaintiff’s
Certification with respect to deciding defendants’ motion to dismiss. Id. at 696
(“For purposes of deciding a motion to dismiss under Rule 12(b)(6), the Court
may not consider the supplemental factual allegations in [plaintiff’s]
No doubt that “[i]t is axiomatic that the complaint may not be amended
by the briefs in opposition to a motion to dismiss.” Pennsylvania ex rel.
Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (citation
omitted); McMahon, 933 F.Supp.2d at 696. Also, it is clear that plaintiff’s
Declaration does indeed contain several supplemental factual allegations
which are not averred in her complaint. “The United States Court of Appeals
for the Third Circuit has stated that an affidavit filed in opposition to a pending
motion to dismiss ‘clearly comprised a matter outside the pleading.’” Steinagel
v. Valley Oral Surgery, 2013 WL 5429269, *5 (E.D.Pa. Sept. 30, 2013)(citing
Rose v. Bartle, 871 F.2d 331, 339 n. 3 (3d Cir. 1989)). “Consideration of the
affidavit would require the court to convert the motion to dismiss into a motion
for summary judgment.” Id.(citation omitted). As in Steinagel, plaintiff’s instant
Declaration does not form the basis of her claims, rather it provides
supplemental facts in support of her claims. It is not explicitly referred to in her
complaint. It is not a matter of public record and, it is not an exhibit attached
to her complaint.2 Thus, “plaintiff’s Declaration is an attempt to provide
supplemental factual averments in support of plaintiff’s [federal] claim in
response to the [defendant’s] Motion to Dismiss/Strike” and should be
As such, the court will not consider plaintiff’s Declaration or any
reference to it for purposes of deciding defendants’ motion to dismiss.
However, the plaintiff’s Declaration and its supplemental factual allegations
will be considered in the event the court finds any of her claims to be deficient
under Rule 12(b)(6) in determining if she should be permitted to amend that
claim. See McMahon, 933 F.Supp.2d at 696 (court dismissed claim without
prejudice since plaintiff’s Certification suggested that an amendment would
not be futile and held that plaintiff could rely on his Certification when he filed
an amended complaint). While defendants state in their reply brief, (Doc. 31
at 2), that “the facts contained in plaintiff’s Declaration do not cure the futility
of [her] claims or warrant leave to amend”, the court will determine if it will be
futile to allow an amendment of any claim it may find to be deficient. See
Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (if a claim is dismissed
under Rule 12(b)(6), “a District Court must permit a curative amendment,
unless an amendment would be inequitable or futile.”).
The court notes that it will consider the Exhibits submitted by
defendants attached to their Appendix, (Doc. 16), in support of their motion
to dismiss since they form the basis of plaintiff’s claims, are explicitly referred
to in her complaint and, are matters of public record. See Delaware Nation v.
Pennsylvania, 446 F.3d 410, 413 n. 2 (3d Cir. 2006).
Thus, defendants’ motion to strike plaintiff’s Declaration, (Doc. 26), is
GRANTED IN PART and DENIED IN PART.
Motion To Dismiss
Due Process Claim against CSD Board of Directors
To the extent plaintiff names the CSD Board of Directors as a defendant
in addition to CSD in her due process claim in Count I, the Board is part of the
District itself. See Kentucky v. Graham, 473 U.S. 159, 165-166 (1985)
(citation omitted). Thus, plaintiff’s due process claim against CSD Board of
Directors merges with her due process claim against the District. As such,
plaintiff’s due process claim against CSD Board of Directors is redundant of
the claim plaintiff asserts against CSD. See Swedron v. Borough, 2008 WL
5051399, *4 (W.D. Pa. Nov. 21, 2008) (citing Gregory v. Chehi, 843 F.2d 111,
120 (3d Cir. 1988)); Brice v. City of York, 528 F.Supp.2d 504, 516 n. 19 (M.D.
Pa. 2007); Burton v. City of Phila., 121 F.Supp.2d 810 (E.D. Pa.
2000);Donovan v. Pittston Area School Dist., 2015 WL 3771420, *5 (M.D.Pa.
June 17, 2015) (Court dismissed with prejudice plaintiff’s claims against board
members of school district in their official capacity as redundant of claims
against school district); Hill v. Bor. of Kutztown, 455 F.3d 225, 233 n. 9 (3d
As such, plaintiff’s due process claim in Count I as against CSD Board
of Directors is DISMISSED WITH PREJUDICE. Defendants Sturgeon,
Kaminski and McGovern however can be sued under §1983 in their individual
capacities in addition to defendant CSD. Donovan v. Pittston Area School
Dist., 2015 WL 3771420, *16; Kohn v. School Dist. of City of Harrisburg, 817
F.Supp.2d 487, 510 (M.D.Pa. 2011); Damiano v. Scranton School District,
135 F.Supp.3d 255, 268-69 (M.D.Pa. 2015).
Additionally, insofar as plaintiff raises a state law breach of contract
claim against defendants CSD and CSD Board in Count II, CSD should be the
only defendant with respect to this claim. See Kohn, 817 F.Supp.2d at 505.
Even though the Contract was entered into between plaintiff and the CSD
Board of Directors, as the Kohn Court stated, “any relief Plaintiffs seek for
breach of contract can be obtained by suing the District alone.” Id. (citations
omitted); Young, 2013 WL 417739, *10 (court adopted view that “a suit
against both a school district and a school board is improper, since state law
allows suits against school districts as political subdivisions, but not school
Based on this same reasoning, CSD Board of Directors will also be
dismissed with respect to plaintiff’s state law claim for violation of the School
Code raised in Count III. Thus, plaintiff’s state law claims in Counts II and III
as against CSD Board of Directors are DISMISSED WITH PREJUDICE.
Since there are no remaining claims against CSD Board of Directors, this
defendant is DISMISSED WITH PREJUDICE.
Punitive Damages Claim
Defendants move to dismiss plaintiff’s claim for punitive damages in
Count I as against CSD and CSD Board of Directors. It is well settled that the
Supreme Court has held punitive damages may not be awarded against
municipalities under §1983. See City of Newport v. Fact Concerts, Inc., 453
US 247, 271 (1981); Young, 2013 WL 417739, *10 (court dismissed claim for
punitive damages against school district since it was a municipal entity). Thus,
any claim for punitive damages against defendants CSD and CSD Board of
Directors is subject to dismissal. As discussed above, CSD Board of Directors
will be dismissed in its entirety. As such, plaintiff‘s claim for punitive damages
in Count I against CSD is DISMISSED WITH PREJUDICE.
Plaintiff has sued defendants Sturgeon, Kaminski and McGovern only
in their individual capacities and she has also asserted a claim for punitive
damages against these defendants in Count I which is not precluded by City
of Newport. The court will discuss below, whether plaintiff has sufficiently
alleged a due process claim in Count I and, if so, whether she has alleged the
requisite “reckless indifference” with respect to the knowledge of Sturgeon,
Kaminski and McGovern of the illegality of their actions to seek punitive
damages with respect to this claim under §1983. See Alexander v. Riga, 208
F.3d at 430-31.
C. Pre-Deprivation Due Process Claim, Count I
Plaintiff’s procedural due process claim is based on the 14th Amendment
and is brought in her complaint under §1983. Section 1983 does not itself
bestow substantive rights, but instead creates a remedy for violation of a
person’s constitutional rights. Gonzaga Univ. v. Does, 536 U.S. 273 (2002).
The 14th Amendment prohibits a state from “depriv[ing] any person of life,
liberty, or property without due process of law.” U.S. Const. amend. XIV, §1.
“[A] procedural due process analysis involves a two step inquiry: (1) does the
complaining party have a protected liberty or property interest and, if so, (2)
does the available process comport with all constitutional requirements.”
Bowen v. Ryan, 2006 WL 3437287 (M.D. Pa. Nov. 29, 2006) aff'd, 248
F.App’x 302 (3d Cir. 2007); see also Shoats v. Horn, 213 F.3d 140, 143 (3d
Cir. 2000). First, it must be determined whether plaintiff had a protected
property interest in the superintendent position, and if so, the second step of
the due process analysis is considered to determine whether the process
available to plaintiff met constitutional requirements.
To have a property interest in a job, “a person must have more than a
unilateral expectation of continued employment; rather, she must have a
legitimate entitlement to such continued employment.” Hill v. Borough of
Kutztown, 455 F.3d 225, 234 (citing Elmore v. Cleary, 399 F.3d 279, 282 (3d
Cir. 2005)). “A person can have a property interest in a government job if he
has a legitimate entitlement to it, not just a unilateral expectation of continued
employment.” Kohn, 817 F.Supp.2d at 505 (citing Biliski v. Red Clay Consol.
Sch. Dist. Bd. of Educ., 574 F.3d 214, 219 (3d Cir. 2009)). Whether a
legitimate entitlement exists is a question of state law. Hill, 455 F.3d at 234.
Thus, while state law determines if an employee has a property right in
continued employment, the process that is due is a question of federal law.
McDaniels v. Flick, 59 F.3d 446, 458 (3d Cir. 1995).
Under Pennsylvania law, “[a] local government in Pennsylvania cannot
provide its employees with tenure status unless there exists some express
legislative authority for doing so.” Elmore, 399 F.3d at 282 (citing Stumpp v.
Stroudsburg Mun. Auth., 659 A.2d 333, 334 (Pa. 1995)). The Pennsylvania
legislature has granted professional employees a tenure status, and thus a
protected property interest in their jobs, specifying requirements for
termination of a contract. 24 Pa.C.S. §11–1122. Certified teachers are
professional employees. 24 Pa. C.S. §11–1101(1). Pennsylvania requires that
public school teachers hold a certificate. 24 Pa.C.S. §12-1201. A contract for
employment also confers a property right when “the contract itself includes a
provision that the state entity can terminate the contract only for cause.” Dee
v. Borough of Dunmore, 549 F.3d 225, 230-31 (3d Cir. 2008) (citing Unger v.
Nat’l Residents Matching Prog., 928 F.2d 1392 (3d Cir. 1991)).
“Denial of continued public employment can also constitute deprivation
of a liberty interest.” Baraka v. McGreevey, 481 F.3d 187, 209 (3d Cir. 2007)
(citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972)).”
In the public employment context, this liberty interest arises “[w]here a
person’s good name, reputation, honor, or integrity is at stake because of
what the government is doing to him.” Roth, 408 U.S. at 573 (quoting
Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)).
In Count I, plaintiff alleges that all defendants “deprived [her] of her right
to employment as the Superintendent of [CSD] in violation of the Due Process
Clause of the Fourteenth Amendment.” (Doc. 1 at ¶ 43). Plaintiff alleges that
she had “a protected property interest in public employment as the
Superintendent of [CSD] under the Contract with [the District] as well as under
the Pennsylvania School Code.” (Id. at ¶’s 43-45). Defendants argue that
plaintiff could not plausibly have had an expectation of continued employment
as CSD’s Superintendent at the time her appointment was rescinded since
she did not possess the statutory credentials required in Pennsylvania to
serve as a public school superintendent at that time. Defendants state that
plaintiff did not have a property interest in the superintendent position
protected by the 14th Amendment and she was not entitled to the pretermination due process requirements under the Code.
In order to state a
cognizable 14th Amendment claim, plaintiff has to establish that she had a
property interest in her employment as superintendent. She has not alleged
a liberty interest in her employment. See Abbott v. Latshaw, 164 F.3d 141,
146 (3d Cir. 1998) (“It is elementary that procedural due process is implicated
only where someone has claimed that there has been a taking or a
deprivation of a legally protected liberty or property interest.”). “Therefore,
when a claim involves an alleged deprivation of due process arising out of the
termination of a specific employment position, the plaintiff must first establish
that he has a property interest in the employment at issue.” DeSimone v.
Coatesville Area School Dist., 248 F.Supp.2d 387, 390 (E.D.Pa.
2002)(citations omitted). “Cognizable property interests can be created by
sources such as state law and implied or express contracts.” Zugarek v.
Southern Tioga School Dist., 214 F.Supp.2d 468, 478 (M.D.Pa.
2002)(citations omitted). Plaintiff argues that she had a property right in her
employment as superintendent created under state law by the provisions of
the School Code.
Property interests of an employee in continued employment are
determined by state law. McDaniels, 59 F.3d at 458. Thus, the question is
whether plaintiff possessed a property interest in the superintendent position
under the School Code. Defendants argue that plaintiff's Contract with the
Board was not governed by the School Code since she was not qualified to
be superintendent under Code when the Contract was rescinded. Defendants
point to Section 10-1078 of the School Code, 24 P.S. §10-1078, which they
state provides that a superintendent candidate must “be commissioned by the
Secretary of Education” in order to serve as a superintendent. Defendants rely
upon the January 1, 2016 Letter of Eligibility issued by the PA Secretary of
Education, (Doc. 16-5, Ex. E), which shows that plaintiff did not become
qualified under State law to serve as superintendent until the date of the
letter. Defendants contend that a school board can only “elect a properly
qualified person as district superintendent” under the Code, namely, 24 P.S.
§10-1071(a), which provides that the “board shall elect or approve a properly
qualified district superintendent to enter into a contract to serve a term of
three to five year.” Additionally, defendants state that “the School Code’s
removal procedures only apply to ‘district superintendents’, i.e., those
individuals ‘commissioned by the Secretary of Education’ and, therefore,
statutorily authorized to serve as a superintendent.” (Doc. 17 at 12-13) (citing
24 P.S. §10-1080(a)3; 24 P.S. §10-1078).
The crux of defendants’ agreement is that prior to the rescission of
plaintiff’s appointment as CSD Superintendent she was not qualified under
state law to serve as a superintendent since she had not yet obtained her
Letter of Eligibility issued by the Secretary of Education. Specifically,
defendants state that “plaintiff’s lame duck appointment as superintendent
was rescinded on December 10, 2015, twenty two (22) days prior to plaintiff’s
receipt of her [January 1, 2016] Letter of Eligibility.” (Id. at 15) (citing Doc. 16
at Ex. E and Ex. D at 9).4 Defendants state that it is of no moment plaintiff
Section 10-1080 deals with removal and provides:
(a) District superintendents and assistant district
superintendents may be removed from office and
have their contracts terminated, after hearing, by a
majority vote of the board of school directors of the
district, for neglect of duty, incompetency,
intemperance, or immorality, of which hearing notice
of at least one week has been sent by mail to the
accused, as well as to each member of the board of
The January 1, 2016 Letter of Eligibility issued by the PA Secretary of
Education, (Doc. 16-5, Ex. E), in relevant part, stated:
This Letter of Eligibility verifies your administrative qualifications
to receive a commission in accordance with 24 P.S. §10-1078
and serve as a superintendent or assistant superintendent in the
public schools of this Commonwealth.
At the new Board’s December 10, 2015 regular meeting, the majority,
including the three individuals defendants, voted to rescind the November 19,
2015 decision of the prior Board which entered into an agreement with plaintiff
to serve as Superintendent of the CSD. (Doc. 16-4 at 10).
received the letter after her appointment was rescinded since she alleges that
the deprivation of her property interest in the superintendent position occurred
on December 10, 2015. (Doc. 1, ¶ 31). Thus, they argue that at the time of
plaintiff’s rescission she was not qualified to be a superintendent by law and
she could not have possessed a legitimate property interest protected under
the School Code in the position entitling her to pre-termination due process.
In particular, defendants state that “[t]he procedural protections
provide[d] by the General Assembly to ‘[d]istrict superintendents’ is limited to
those individuals commissioned to serve as a superintendent.” (Id. at 16)
(citing 24P.S. §10-1080(a)). Therefore, defendants assert that plaintiff cannot
rely upon the procedural protections afforded in the Code with respect to her
due process claim since she simply did not meet the requirements to be
superintendent at the time her appointment was rescinded by the new Board.
Defendants cite to Marin v. McClincy, 15 F. Supp.3d 602, 612 (M.D.Pa. 2014),
for the proposition that “[a] property right may not be found, however, if the
right to practice the occupation has not yet accrued.” No doubt that “[t]he
Fourteenth Amendment’s procedural protection of property is a safeguard of
the security of interests that a person has already acquired in specific
benefits.” Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576, 92
S.Ct. 2701 (1972). Defendants state that plaintiff did not have a property
interest at the time her due process claim accrued since she was not yet
qualified to be superintendent and did not have a legitimate claim of
entitlement to the superintendent position under the School Code. They
maintain that since plaintiff had no protected property interest under the Code,
she was an at-will employee and was not entitled to any process. Indeed, only
“a public employee with a property interest in continued employment ‘is
entitled to oral or written notice of the charges against him, an explanation of
the employer’s evidence, and an opportunity to present his side of the story,’
before he or she may be terminated.” Snook v. Midd-West School Dist., 2015
WL 1209756, *8 (M.D.Pa. March 16, 2015) (quoting Loudermill, 470 U.S. at
Plaintiff points out that her appointment as the new Superintendent was
effective January 8, 2016 through June 30, 2019 and contingent on her
meeting the requirements for the position by that date. She states that she
met the requirements before that date and thus satisfied the condition
precedent under the terms of her appointment by the former Board. She
contends that “[b]ased on the actions of CSD, the CSD Board and the CSD
Solicitor, [she] did possess a property interest in serving as Superintendent
of CSD effective January 8, 2016.” She states that there is no provision in the
School Code that required her to have had the Letter of Eligibility before she
was to begin serving as the Superintendent and, even if it did, she obtained
the Letter before January 8, 2016. (Doc. 24 at 14, 16).
Plaintiff states that the prior Board could legally appoint her to fill a
future vacancy even though her appointment would not commence until the
new Board was seated, especially after a lengthy application process. Plaintiff
cites to Burns v. Board of Directors of Uniontown Area Sch. Dist., 748 A.2d
1263,1266-1268 (Pa.Cmwlth. 2000), in which the Commonwealth Court found
that an existing school board could elect a sitting superintendent for another
term despite the fact that the superintendent’s new term would not begin until
after a new school board was seated. The Burns Court also held that the only
mechanism to remove a duly elected superintendent under the Code was by
adhering to the due process requirements detailed in 24 P.S. §1080. Id.
Plaintiff concludes, (Doc. 24 at 22), by stating that:
Here, as in Burns, the CSD Board had authority to act on the
vacancy that they knew would occur on January 8, 2016. The
application and selection process began in June of 2015 and
lasted almost six months. It was at the end of that process on
November 19th that CSD, through the CSD Board at that time,
fulfilled their duties under Section 10-1073(a) of the School Code
and approved [plaintiff] to fill the vacancy, contingent on her
meeting all of the requirements by January 8, 2016.
The Code undoubtedly does provide that a board of school directors
shall elect a properly qualified person as district superintendent. 24 P.S.
§10-1071(a). The Code also provides that superintendents “shall be
commissioned by the Secretary of Education.” 24 P.S. §10-1078. Further,
§10-1073(a) of the Code provides that when a vacancy occurs in the office of
superintendent, the school board is to elect or approve a properly qualified
superintendent to enter into a contract to serve a term of three to five years
from “a time mutually agreed upon by the duly elected district superintendent
and the board of school directors.” Plaintiff points out that §10-1073(a) “does
not say that the person has to be ‘properly qualified’ at the time of the
approval or election; nor does it preclude appointing an individual contingent
upon receiving the required documentation by the hire date.” (Id. at 23).
Plaintiff also argues that the new Board improperly appointed Waite as
acting superintendent on January 7, 2016 since “it was not ‘impossible or
impracticable’ to fill the vacancy immediately, which is required by Section 101079 to justify the appointment of an acting superintendent instead of a
superintendent.” She states that on January 1, 2016, she had received the
Letter of Eligibility and had advised CSD, the CSD Solicitor and the CSD
Board that she had received it. Thus, she contends that the Board did not
have authority to appoint Waite as acting superintendent on January 7, 2016
because she was able and available to fill the position. Plaintiff cites to
Hetherington v. Rogers, 6 A.3d 6 (Pa.Cmwlth. 2010), in which School Board
members were removed as school directors because they failed to appoint a
qualified superintendent. The Court indicated that the directors failed to
contact any of the applicants for the superintendent position to determine
whether it was impossible or impracticable to immediately fill the
superintendent vacancy with a qualified person as required by §10-1079.
As such, plaintiff states that under §§10-1071(a), 10-1073(a) and 101079 of the Code she had a legitimate property interest in being employed as
Superintendent on January 8, 2016.
Unfortunately, Section 10-1080 did not vest plaintiff with a property right
to continue employment as superintendent since it “establishes procedural
rights for district superintendents facing removal” and plaintiff was not a
“district superintendent” at the time her appointment was rescinded.
DeSimone, 248 F.Supp.2d at 390. Moreover, the Burns case is inapposite
since this case involved a district superintendent. Unlike the superintendent
in the Burns case, plaintiff Foster was not yet approved by the State to serve
as a superintendent at the time of her appointment which was contingent
upon her meeting the requirements and, the rescission of her appointment
was made before she was eligible to serve as superintendent. Also, while the
Burns Court held that a duly elected superintendent could only be removed
by adhering to the due process requirements detailed in 24 P.S. §1080,
plaintiff Foster was not removed at a time when she actually held the position
of superintendent. Rather, her appointment was rescinded when she was not
yet qualified to serve as a superintendent and her alleged deprivation of her
property interest occurred before she was qualified for the position.
There is no question that a teacher without a certification is not a
professional employee under Pennsylvania law, and does not have a statutory
property interest in her employment. Coreia v. Schuylkill Cty. Area Vo-Tech
School Auth., 241 F.App’x 47, 50 (3d Cir. 2007)(citing 24 Pa.Cons.Stat.
§11–1101(1)(providing “[t]he term ‘professional employe[e]’ shall include
those who are certificated as teachers”); Occhipinti v. Bd. of Sch. Dirs. of Old
Forge Sch. Dist., 464 A.2d 631, 632 (Pa.Cmwlth. 1983)(holding that teacher
ceases to be a “professional employee” when certification lapses)). In Coreia,
the Third Circuit found that since plaintiff “did not hold a certificate at the time
he resigned, he did not qualify as a professional employee” and “[he] was not
entitled to the procedural protections accorded professional employees [by
Pennsylvania law].” Id.
Thus, the court is compelled to hold that since plaintiff Foster was not
certified to be a superintendent at the time her appointment was rescinded,
she could not have had a statutory property interest in this position. See
Coreia, supra; Occhipinti, 464 A.2d at 632; Markovich v. Panther Valley
School District, Civil No. 13-3096 (M.D.Pa. July 28, 2014)(this court held that
since plaintiff was not certified as an ROTC instructor by Army at the time he
was terminated by school district, he was not a professional employee under
Pennsylvania law, and did not have a statutory property interest in his
employment based on the School Code at the time he was fired); Moiles v.
Marple Newtown School Dist., 2002 WL 1964393 (E.D.Pa. Aug. 23,
2002)(court held that principal did not have a protected property interest in his
job after his state certification lapsed); Collins v. Lebanon County Vocational
Tech. Sch., 660 A.2d 231, 234 n. 4 (Pa.Commw.Ct. 1995)(“If an employee is
issued a professional employee contract without meeting the statutory
requirements of such status, that contract will be disregarded and the
employee will not be considered a professional employee.”).
In short, since plaintiff was not yet authorized to be superintendent by
the Secretary of Education at the time her appointment was rescinded on
December 10, 2015 and she was not yet statutorily qualified to serve as a
superintendent, the court finds that the Code, namely, 24 P.S. §10-1071, 24
P.S. §10-1073, and 24 P.S. §10-1078, did not create a cognizable property
interest in the position. Indeed, at the time of the rescission, it was not even
known with certainty if plaintiff would meet the requirements for
superintendent and if the Secretary of Education would issue the Letter of
Eligibility. Clearly, if plaintiff had failed to meet the requirements, the Code
would not have bestowed upon her a protected property interest in the
superintendent position. Although the position of superintendent is “treated
specially in the School Code”, the court finds that the School Code only
imposes rights and duties upon “a qualified superintendent, who is a
commissioned officer of the Commonwealth of Pennsylvania.” Antonini v.
Western Beaver Area School Dist., 874 A.2d 679, 684 (Pa.Comwlth.Ct. 2005).
“One alleging a property interest in a benefit protected by due process must
go beyond showing an unsubstantiated expectation of the benefit.” Carter v.
City of Philadelphia, 989 F.2d 117, 119 (3d Cir. 1993). Plaintiff has failed to
show that her alleged property right has a basis in state law.
Moreover, in Burger v. School Bd. of McGuffey School Dist., 592 Pa.
194, 923 A.2d 1155, 1164 (2007), the Supreme Court of Pennsylvania stated
that “the office of school superintendent is not expressly provided for in
[Pennsylvania’s] Constitution; nor does the Constitution expressly prohibit the
superintendents.” The office of superintendent “is a statutory creation and, as
such, Article VI, Section 1 [of Pennsylvania’s Constitution] authorizes the
General Assembly to enact provisions governing appointment and removal.”
Id. at 209-10. Thus, if the Pennsylvania General Assembly wished to make
the removal procedural requirements of §10-1080(a) of the School Code
applicable to prospective superintendent candidates who were not yet
commissioned by the Secretary of Education it would have provided so in this
As such, plaintiff Foster’s due process claim which is based on the
creation of a protected property interest by §§10-1071, 10-1073 and 10-1078
of the School Code and by the removal procedural requirements found in §101080(a) of the School Code will be dismissed for failure to state a claim. See
Moiles, 2002 WL 1964393, *8 (“when plaintiff’s employment was terminated,
he was not deprived of a constitutionally protected property interest, and he
may not state a claim for a violation of his procedural due process rights”).
Plaintiff also alleges that her Contract to be employed as
Superintendent of CSD conferred a protected property right and expectation
of continued employment. (Doc. 1 at ¶ 45). She states that the Contract
provided CSD would function in accordance with the provisions of the School
Code. Plaintiff contends that she has a property right to employment as
Superintendent based on the Contract since it specifically provided she would
be entitled to pre-termination procedural rights and that any termination would
only be for “just cause.”
Under the November 27, 2015 Contract, plaintiff was to begin the
position of Superintendent of CSD on January 8, 2016. (Doc. 16-2). Article III
of the Contract provides in part that “[t]he Superintendent covenants that she
possesses all of the qualifications that are required by law to serve as
Superintendent.” Article VIII pertains to discharge or termination and provides
in relevant part:
Throughout the term of this Agreement, the Superintendent shall
be subject to discharge for valid and just cause including the
reasons specified in the Public School Code of the
Commonwealth of Pennsylvania. The Board of School Directors
shall not arbitrarily or capriciously call for her dismissal and the
Superintendent shall in any event have the right to written
charges, to notice of hearing, to a fair and impartial hearing, to all
elements of due process, and to the right to appeal to a court of
Article XV of the Contract also provided that its provisions “shall be
interpreted in accordance with the laws of [Pennsylvania] and the rules and
regulations fo the Pennsylvania Department of Education.”
At issue is whether plaintiff’s Contract can give her a protected property
interest in her employment as superintendent since it included a provision that
the District could only terminate the Contract for cause. In Markovich, this
court found that since plaintiff’s contract provided that “no professional
employee shall be disciplined, reprimanded, reduced in rank or compensation
or deprived of any professional advantage without just cause”, his contract
provided him with a property interest in his employment because he could
only be deprived of professional advantage for just cause. See Markovich,
supra (citing Dee, 549 F.3d, at 230-31). In fact, this court denied the school
district defendants’ motion to dismiss Markovich’s procedural due process
claim since it found he had a protected property interest in his position as
ROTC instructor based on his contract.
Plaintiff Foster’s Contract had a provision that the District could only
terminate the “Superintendent” for “just cause” and it provided the
Superintendent with pre-termination procedural due process rights. No doubt
that “a [Pennsylvania] contract incorporates the law in existence at the time
it was made”, Kohn, 817 F.Supp.2d at 501, and that the law in Pennsylvania
at the time of plaintiff’s Contract required a Superintendent to be
commissioned by the Secretary of Education. Plaintiff was thus not qualified
to hold the position of Superintendent of CSD at the time her Contract was
entered even though she would have been qualified to hold the position at the
time she was to commence serving as Superintendent.
Defendants argue that since plaintiff did not meet the statutory
requirements to be superintendent at the time the Contract was entered, the
Contract was not a valid professional employee contract and was void. There
is no question that plaintiff’s Contract was executed and later rescinded
before the Secretary of Education issued her Letter of Eligibility authorizing
her to serve as Superintendent and, thus, before plaintiff was qualified to hold
this position. Therefore, defendants state that “the School Code does not, in
this instance, afford Plaintiff a legitimate expectation of continued employment
as a superintendent at the District, because Plaintiff was at all times material
hereto incompetent to hold the position.” (Doc. 17 at 17). For support,
defendants cite to Collins v. Labanon County Voc. Tech. School, 660 A.2d
231, 234 n. 4 (Pa.Cmwlth. 1995), in which the Commonwealth Court noted
“[i]f an employee is issued a professional employee contract without meeting
the statutory requirements of such status, that contract will be disregarded
and the employee will not be considered a professional employee.” (citations
Pursuant to the discussion above, the court finds that neither the School
Code nor the Contract created a constitutionally protected property interest
in the superintendent position for plaintiff since she was not yet commissioned
by the Secretary of Education to be superintendent on December 10, 2015.
Since there is no question that at the time plaintiff Foster’s Contract was
rescinded on December 10, 2015 she was not commissioned by the state to
be a superintendent, she was not entitled to the due process rights provided
in the School Code and in the Contract since these rights plainly applied to
Now the court must consider whether plaintiff’s due process claim in
Count I should be dismissed with prejudice as defendants suggest. As
indicated, the court will consider plaintiff’s Declaration and exhibits attached
thereto in determining whether an amendment of her due process claim would
Even considering plaintiff’s Declaration and the extraneous exhibits
attached thereto, the court finds that any amendment of her due process
claim in Count I would be futile based on the above discussion since despite
any amendment, plaintiff simply was not commissioned by the Secretary of
Education to be a superintendent under state law at the time her appointment
was rescinded.5 It is undisputed that plaintiff’s appointment as Superintendent
was rescinded by the new board before her credentials were processed and
before the Secretary of Education issued her Letter of Eligibility. (Doc. 24-2,
¶ 14; Doc. 24-5). Neither her Declaration nor her exhibits will change this fact.
Indeed, plaintiff’s Declaration and her exhibits confirm this fact.
Further, plaintiff argues that the District had an established past practice
of hiring people “contingent upon receipt of the necessary qualification
documentation and clearances”, (Doc. 24, p. 28), and she attempts to show
this by her Declaration, (Doc. 24-2), and by the unsworn affidavit of third party
Chmiola, (Doc. 24-8). However, the past practice of the District simply cannot
create a property interest. See Berlanti v. Bodman, 780 F.2d 296, 299 (3d Cir.
1985)(“Property interests are created and defined by state law.”)(citation
omitted); Kohn, 817 F.Supp.2d at 506(“State law determines if a property right
exists.”). As indicated, property interests of an employee in continued
employment are created by state law and not the customs or practices of
school districts. McDaniels, 59 F.3d at 458.
The court has found that plaintiff did not have a property right in her
employment as superintendent created by the School Code. Thus any
amendment by plaintiff with respect to her due process claim based on a
property interest created by the Board’s past practice is futile.
In Kohn, 817 F.Supp.2d at 502, the court stated that in the context of
a contract for a school official, the Pennsylvania General Assembly meant
“cancel” when referring to the word “rescind” in 24 P.S. §17-1704-B(a)(8).
As such, the court will grant defendants’ motion to dismiss plaintiff’s due
process claim in Count I of her complaint and this claim will be dismissed with
Counts II and III: State Law Claims
Based on judicial economy, convenience and fairness to the litigants,
the district court in its discretion is permitted to decline the exercise of
supplemental jurisdiction over state law claims if the court has dismissed all
of the claims over which it had original jurisdiction. Kach v. Hose, 589 F.3d
626, 650 (3d Cir. 2009) (citations omitted). The court has made the
appropriate considerations and finds no extraordinary circumstances exist in
this case to exercise supplemental jurisdiction over plaintiff’s breach of
contract claim, Count II, and claim for violation of the School Code, Count III.
Thus, since plaintiff’s only remaining federal claim over which this court had
original jurisdiction (i.e., 14th Amendment procedural due process claim, Count
I) shall not be permitted to proceed to trial, the court, in its discretion, declines
to exercise supplemental jurisdiction over plaintiff’s state law claims, Counts
II and III, against defendants CSD and CSD Board. Id.; see also 28 U.S.C.
§1367(c)(3); Verdecchia v. Prozan, 274 F.Supp.2d 712, 728 (W.D. Pa. 2003).
As such, plaintiff’s state law claims shall be dismissed without prejudice.
Kach, 589 F.3d at 650 (“If a district court decides not to exercise
supplemental jurisdiction and therefore dismisses state-law claims, it should
do so without prejudice, as there has been no adjudication on the
merits.”)(citation omitted); Markovich, 2015 WL 4077758 (M.D.Pa. July 6,
For the foregoing reasons, defendants’ motion to strike plaintiff’s Declaration,
(Doc. 26), is GRANTED IN PART and DENIED IN PART. Defendant CSD
Board of Directors is DISMISSED WITH PREJUDICE. Defendants’ motion to
dismiss, (Doc. 11), is GRANTED as to Count I of plaintiff’s complaint, (Doc.
1), the 14th Amendment procedural due process claim, and this claim is
DISMISSED WITH PREJUDICE. The court declines to exercise supplemental
jurisdiction over plaintiff’s state law claims, Counts II and III, and these claims
are DISMISSED WITHOUT PREJUDICE. An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: March 22, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-1096-01.wpd
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