E. Clemens v. PSP & Lt. Col. L. Christie ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ethan Clemens, :
Petitioner :
:
v. :
:
Pennsylvania State Police and :
Lieutenant Colonel Lisa Christie :
(Individually and in her capacity as :
Lieutenant Colonel of the Pennsylvania :
State Police), : No. 59 M.D. 2018
Respondents : Argued: November 14, 2019
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: February 7, 2020
Ethan Clemens (Clemens) filed a Petition for Review (Petition) in our
original jurisdiction seeking a writ of mandamus to compel the Pennsylvania State
Police (PSP) and Lieutenant Colonel Lisa Christie (Lt. Col.) to reinstate Clemens as
a cadet at the Pennsylvania State Police Academy (Academy). The PSP and the Lt.
Col. filed preliminary objections in the nature of a demurrer, which are now before
the Court for disposition.1 Upon review, we sustain the PSP and the Lt. Col.’s
preliminary objections in the nature of a demurrer and dismiss the Petition.
1
In ruling upon preliminary objections in the nature of a demurrer, we must accept as true
all well-pleaded allegations of material fact and all inferences reasonably deductible therefrom.
Evans v. Pa. Bd. of Prob. & Parole, 820 A.2d 904, 906 n.3 (Pa. Cmwlth. 2003) (citing Myers v.
Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998)). We do not have to accept as true conclusions of
Factual Background
On September 14, 2015, Clemens entered the Academy as a member of
the 144th class of cadets, with an anticipated graduation date of on or about March
18, 2016. Petition ¶¶ 11 & 14. To graduate from the Academy and become a PSP
trooper, the cadets had to, in relevant part, attend classes and perform satisfactorily
on tests pertaining to certain areas of law enforcement including traffic law. Id. ¶¶
15-19. Of relevance here, the fourth traffic law examination (Traffic 4) was
scheduled for November 30, 2015. Id. ¶ 20.
To prepare for Traffic 4, Clemens alleges that the Academy did not
prohibit the use of study guides and, in fact, “even encouraged” cadets to use study
guides authored by themselves or others, and the cadets were permitted to write notes
in their criminal justice handbooks. Petition ¶¶ 23-24. On the evening before Traffic
4, Clemens alleges that he obtained from another cadet in his class a study guide for
the test, which was a copy of handwritten notes. Id. ¶¶ 25-26. Clemens “looked
only at the first page of the study guide” because that page contained material
“similar to the information presented at the review session provided by [his]
instructor.” Id. ¶ 27. Clemens “took some notes on a piece of notebook paper” from
the first page of the study guide and returned it to the cadet, though he prepared for
Traffic 4 by relying on his own notes. Id. ¶ 28. Clemens alleges that he did not use
any other study guides for Traffic 4. Id. ¶ 29.
After taking Traffic 4, Clemens alleges that in mid-December 2015, a
PSP officer visited one of his classes and held up to the class a “cheat sheet” for
Traffic 4 that had been found in the hallway at the Academy. Petition ¶¶ 31 & 39.
law, unwarranted inferences, argumentative allegations or expressions of opinion. Id. “The test
is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts
legally sufficient to establish his or her right to relief.” Id.
2
The PSP officer asked the class who “had been in possession of” the cheat sheet. Id.
¶ 32. A few weeks later, another PSP officer addressed the cadets in the class again
about the cheat sheet and indicated that “anyone with knowledge of [it] should come
forward” while several other PSP members inspected the cadets’ books. Id. ¶ 33.
“During this time period, at least one cadet approached one of the PSP officers who
[had] spoken to the 144th [c]lass about the [cheat sheet], showed study guides to that
officer, and confirmed that such study guides were permissible, and not what was
being investigated.” Id. ¶ 34.
After the New Year holiday, the Academy had an assembly with the
cadets of the 144th class in the auditorium. Petition ¶ 35. At the assembly, the Lt.
Col. and another PSP officer addressed the cadets about the cheat sheet. Id. ¶ 36.
The Lt. Col. indicated that “if no one came forward with information about the [cheat
sheet] by 4pm [sic], the PSP would interview and polygraph all the cadets in the
144th [c]lass.” Id. The cadets were restricted to the Academy until further notice,
they were not allowed outside contact for three days, and the PSP staff confiscated
their phones and books. Id. ¶ 37. Shortly after the assembly, Cadet Vogle admitted
that the cheat sheet belonged to him and he was dismissed, along with another cadet
connected to the cheat sheet. Id. ¶¶ 38 & 44. After Cadet Vogle came forward, the
PSP conducted an internal investigation and interviewed every cadet in the 144th
class with respect to “cheating.” Id. ¶ 41.
In his Petition, Clemens alleges that he never saw, used, or discussed
the content of the cheat sheet before sitting for Traffic 4. Petition ¶ 40. Clemens
further alleges that during his interview with the PSP, he was shown the cheat sheet
and “denied any use of, or access to, that sheet[,]” though he disclosed his use of the
study guide, which was “wholly different” from the cheat sheet. Id. ¶ 43. Clemens
3
alleges that about a month before graduation, on February 4, 2016, he met with two
PSP captains but was not afforded the opportunity to defend himself or have
representation present, nor was any evidence presented or discussed. Id. ¶¶ 54-56.
Rather, Clemens alleges that the meeting had a “pre-determined outcome,” which
was to force Clemens to sign the “pre-prepared termination” letter dated February
11, 2016. Id. ¶¶ 51 & 56. PSP publicized the names of the graduating cadets, which
did not include Clemens. Id. ¶ 57.
Thereafter, the Commonwealth’s Office of Inspector General (OIG)
conducted an investigation of the cheating at the Academy and published its findings
in a report made public in February 2017.2 Petition ¶¶ 61 & 64. The OIG’s report
found that the problem at the Academy was not the cheating by the cadets but the
policies of the “PSP, its staff and instructors.” Id. ¶ 73. Based on the foregoing
allegations of fact, Clemens brings two claims against the PSP and the Lt. Col. in
his Petition relating to his discharge.
2
Specifically, the OIG report stated, in relevant part:
[t]he evolved culture within the Academy up to the 144th [c]adet
[c]lass appears to have permitted the sharing within cadet classes
and between cadet classes of information concerning Academy
examinations, in some cases questions and answers. This is shown
through some of the so-called “study guides” that the OIG found
during its review, some of which members of earlier Academy
classes passed to members of the 144th [c]adet [c]lass. Because
over time the Academy rarely changed examination questions and
correct answers, this essentially transformed some study guides into
cheat sheets for future Academy classes. . . . It is unclear to the OIG
whether the PSP investigators who initially reviewed the [c]adets’
actions were aware of, and appreciated, this culture at the time of
their investigations. . . .
Petition Ex. A, OIG Investigative Report at 33-34.
4
In Count I, Clemens alleges wrongful discharge in violation of the
public policy embodied in PSP Field Regulation (F.R.) 1-2, Section 2.02
(5/16/2017), requiring members to be responsible for their own acts, and asks this
Court for a writ of mandamus to compel the PSP and the Lt. Col. to withdraw his
termination and permit him to rejoin as a cadet in the next class at the Academy.
Petition ¶¶ 77-78 & 89. Alternatively, in Count II, Clemens alleges a claim under
42 U.S.C. § 1983 (Section 1983) for deprivation of his liberty interest in reputation
secured by the 14th Amendment to the United States Constitution, U.S. Const.
amend. XIV, § 1, without due process of law and seeks a name-clearing hearing. Id.
¶¶ 91, 104 & 106.
The PSP and the Lt. Col. responded by filing three preliminary
objections in the nature of a demurrer. First, the PSP and the Lt. Col. assert that
Clemens cannot prevail on his claim for wrongful discharge because he does not
have a clear legal right to the relief he seeks, which is to require the PSP and the Lt.
Col. to withdraw his discharge. See Preliminary Objections by [Respondents] to the
Petition for Review (Objections) ¶ 13. Next, the PSP and the Lt. Col. argue that
Clemens cannot prevail on his claim for deprivation of liberty interest because he
failed to “assert any actual harm that has occurred to his reputation” and he cannot
demonstrate that he has a clear right to a name-clearing hearing when he alleges that
he had an opportunity before the PSP officials to refute the charge of cheating. Id.
¶¶ 19, 23 & 27. Third, the PSP and the Lt. Col. argue that Clemens’ Section 1983
claim for deprivation of liberty interest cannot proceed because the PSP and the Lt.
Col. are not subject to suit and Clemens did not plead any facts showing the Lt.
Col.’s personal involvement. Id. ¶¶ 33, 34, & 39-40. In response, Clemens opposed
the PSP and the Lt. Col.’s preliminary objections. See Answer of [Petitioner] in
5
Opposition to the Preliminary Objections by [Respondents] to the Petition for
Review.
Upon review, we agree that Clemens’ claim for wrongful discharge
cannot proceed because he asks this Court to direct the PSP and the Lt. Col. to
reverse action taken in the exercise of discretion, which we cannot do, and
additionally he fails to allege a clear legal right to relief required for his writ of
mandamus claim to proceed. Further, Clemens’ Section 1983 claim for deprivation
of liberty interest in reputation against the PSP and the Lt. Col. cannot proceed as a
matter of law because he fails to allege facts showing harm to his reputation to
support his claim.
Count I: Wrongful Discharge
First, Clemens asserts a claim for wrongful discharge in violation of a
public policy embodied in Field Regulation 1-2, Section 2.02, which requires
members to be responsible for their own acts and not attempt to shift to others the
burden of responsibility for executing or failing to execute a police duty. Petition ¶¶
76-87. Clemens argues that the OIG report identified that the problem giving rise to
the cadets’ cheating was not the cadets’ actions but, instead, the Academy culture
where PSP instructors and staff “routinely” provided cadets with the questions and
answers to the questions that were to appear on upcoming examinations and the
failure of the PSP instructors and staff to modify examinations for successive
Academy classes. Id. ¶¶ 81-84. Clemens argues that the PSP and the Lt. Col.
arbitrarily exercised their discretion and improperly shifted their violations and
failures to Clemens, and other cadets like him, when they terminated him for
cheating, but he did not cheat. Id. ¶ 87. Clemens contends that allowing the
discharge to stand violates the public policy incorporated in Field Regulation 1-2,
6
Section 2.02. Id. ¶ 86. Clemens further contends that he lacks an adequate remedy
at law and, therefore, asks this Court to issue a writ of mandamus to compel the PSP
and the Lt. Col. to withdraw Clemens’ discharge and permit him to rejoin as a cadet
in the next class at the Academy. Id. ¶ 89.
Mandamus is an extraordinary remedy that compels the official
performance of a ministerial act or a mandatory duty. Nickson v. Pa. Bd. of Prob.
& Parole, 880 A.2d 21, 23 (Pa. Cmwlth. 2005); Evans v. Pa. Bd. Prob. & Parole,
820 A.2d 904, 914 (Pa. Cmwlth. 2003). This Court has previously explained:
[I]n an action in mandamus involving an administrative
agency’s exercise of discretion, we may only direct the
agency to perform the discretionary act; we may not direct
the agency to exercise its judgment or discretion in a
particular way or direct the retraction or reversal of
action already taken. A writ of mandamus may be issued
only where there is a clear legal right in the [petitioner],
a corresponding duty in the [respondent], and lack of any
other appropriate and adequate remedy. The purpose of
mandamus is not to establish legal rights, but to enforce
those rights already established.
Evans, 820 A.2d at 914-15 (emphasis added).
Here, the relief sought by Clemens in his wrongful termination claim is
to “compel” the PSP and the Lt. Col. to withdraw the termination of Clemens and
permit him to rejoin as a cadet at the Academy. Petition ¶ 89. We cannot, however,
order the reversal of Clemens’ alleged termination and reinstate Clemens as a cadet
because we cannot direct the reversal of action already taken within the exercise of
the administrative agency’s discretion. See Evans, 820 A.2d at 915.
Section 205(f) of The Administrative Code of 1929 (Code), Act of
April 9, 1929, P.L. 177, as amended, 71 P.S. § 65(f), governs Clemens’ employment
as a new cadet and provides:
7
All new cadets and troopers shall serve a probationary
period of eighteen months from the date of original
enlistment, during which time they may be dismissed by
the [PSP] Commissioner for violations of rules and
regulations, incompetency, and inefficiency without
action of a court martial board or the right of appeal to a
civil court.
(Emphasis added.) As plainly stated, Clemens as a cadet, or probationary employee,
“may” be dismissed by the PSP Commissioner for violations of rules and regulations
without action of a court martial board or the right of appeal to a civil court. Id. By
use of the term “may” and by providing for no review of the PSP Commissioner’s
decision via hearing or otherwise, the legislature indicated its intention that “the
decision to discharge has been committed to the discretion of the employer[,]” as the
employee has no property right in continued employment. Pipkin v. Pa. State Police,
693 A.2d 190, 193 (Pa. 1997) (emphasis added); accord Graham v. Pa. State Police,
634 A.2d 849, 851 (Pa. Cmwlth. 1993); Marino v. Pa. State Police, 486 A.2d 1033,
1034 (Pa. Cmwlth. 1985) (holding that a new cadet does not have a property interest
in continued employment, and therefore, the legislature did not wish to afford cadets
an opportunity to be heard thereby leaving the decision to terminate to the discretion
of PSP without review by this Court). Because the decision to discharge a cadet has
been committed to the discretion of the PSP Commissioner, this Court cannot “direct
the retraction or reversal of action already taken,” that is, we cannot order a reversal
of Clemens’ termination and a reinstatement of his employment as a cadet in a
mandamus action. See Evans, 820 A.2d at 915; Hunt v. Pa. State Police, 400 A.2d
907, 909 (Pa. Cmwlth. 1979) (explaining that once an agency has exercised its
discretion, “a party [that] is dissatisfied with the result may not seek to compel a
8
different result through mandamus; for mandamus does not lie to review a
discretionary act, nor to compel a particular result in a process involving the exercise
of discretion”).
Nevertheless, Clemens argues that the mandamus remedy is broader
than the PSP and the Lt. Col. assert. Clemens’ Brief at 14. Clemens contends that
this Court can grant him mandamus relief because the courts will review the exercise
of a government actor’s discretion where it is arbitrary or fraudulently exercised or
based upon a mistaken view of the law or to determine if constitutional rights have
been violated.3 Id. at 15. Clemens asserts that his claim for wrongful discharge
shows that the PSP and the Lt. Col. acted “arbitrarily and under mistaken view of the
law in discharging him in violation of a clear mandate of public policy.” Id. at 16
(emphasis added).
Clemens does not cite any law to support his assertion that he has a
clear legal right to relief. Instead, Clemens relies on the PSP Field Regulation to
support his assertion that it establishes a “clear mandate of public policy.”
Section 2.02 provides, in pertinent part:
Members shall also be held responsible for the proper
performance of all duties assigned to them; the appropriate
use of delegated authority; and strict adherence to the
rules, regulations, and directives promulgated by the
Department. Ignorance of the rules, regulations, and
directives shall not be considered an excuse or justification
for any violation of such by a member. Members shall be
responsible for their acts and shall not attempt to shift the
burden of responsibility for executing or failing to execute
a lawful order or police duty. . . .
3
We note that in Count II, Clemens asks for mandamus relief for the violation of his liberty
interest in reputation but he fails to allege facts to support this claim. See discussion infra pp. 10-
15.
9
PSP F.R. 1-2, § 2.02 (emphasis added). The purpose of the PSP Field Regulation is
to “establish policy and guidelines regarding duty requirements for the conduct of
members.” PSP F.R. 1-2, § 2.01 (emphasis added). The Field Regulation is, by its
terms, a “policy and guideline[]” developed by the PSP, an executive agency, to
govern the conduct of its members; therefore, it does not and cannot confer a legal
right to probationary employees. See Shore v. Dep’t of Corr., 168 A.3d 374, 386
(Pa. Cmwlth. 2017) (explaining that allegations made by inmate that the Department
of Corrections failed to follow its regulations or internal policies cannot support a
claim based on a vested right or duty); see also Tindell v. Dep’t of Corr., 87 A.3d
1029, 1034-35 (Pa. Cmwlth. 2014) (rejecting argument that policies and regulations
adopted by agency create enforceable rights because “[a]dministrative regulations
are not statutes or constitutional provisions”). Clemens has not established a clear
legal right to relief necessary for his mandamus action for wrongful termination to
proceed. For the foregoing reasons, we sustain the PSP and the Lt. Col.’s
preliminary objection as to Count I of the Petition asserting wrongful discharge. We
now turn to Clemens’ alternative claim.
Count II: Section 1983 Claim-Deprivation of Liberty Interest
Alternatively, in Count II of his Petition, Clemens asserts a claim under
42 U.S.C. § 19834 for a deprivation of his liberty interest in his reputation without
due process as required by the 14th Amendment to the United States Constitution,
U.S. Const. amend. XIV, § 1. Petition ¶¶ 91-104. Clemens asserts that the PSP and
4
To maintain an action under Section 1983, Clemens must allege that a person or persons
deprived him of his constitutional rights while acting under color of state law. Robles v. Pa. Dep’t
of Corr., 718 A.2d 882, 883 (Pa. Cmwlth. 1998). A Section 1983 action does not create any
substantive rights, but merely serves as a vehicle or device by which a citizen is able to challenge
conduct by a state official whom he claims has deprived him of his civil rights. Id.
10
the Lt. Col. created a “false and stigmatizing impression” of him as a “cheater, or
dishonest person, in connection with his termination” from the Academy, thereby
depriving his liberty interest in reputation and entitling him to “due process, in the
form of, at a minimum, a name-clearing hearing.” Id. ¶¶ 96 & 106.
To state a claim under 42 U.S.C. § 1983, a petitioner “must establish
that [he was] deprived of a right secured by the Constitution or laws of the United
States, and that the alleged deprivation was committed under color of state law.”
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The 14th
Amendment of the United States Constitution5 requires due process where a state
seeks to deprive a person of a life, liberty or property interest. Pa. Game Comm’n
v. Marich, 666 A.2d 253, 255 (Pa. 1995). Reputational interests alone are
insufficient to invoke federal due process protections. R. v. Dep’t of Pub. Welfare,
636 A.2d 142, 149 (Pa. 1994) (citing Paul v. Davis, 424 U.S. 693 (1976)). A
petitioner can establish a deprivation of liberty interest in reputation if he makes a
showing of a “reputational stigma plus deprivation of another protected right or
interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). The
“stigma” is the creation and dissemination of a false and defamatory impression and
the “plus” is the termination or the “alteration or extinguishment” of a right or status
previously recognized by law. Id. The stigma-plus test has been applied in the
public employment context to mean that when an employer creates and disseminates
a false and defamatory impression about the employee in connection with his
termination, it deprives the employee of a protected liberty interest. See Smith v.
Engler (E.D. Pa., No. 15-6542, filed June 14, 2018), slip op. at ___, 2018 WL
5
Section 1 of the 14th Amendment provides, in relevant part, that: “nor shall any state
deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend.
XIV, § 1.
11
2984861, at *13 (citing Hill). The right that is accorded is an opportunity to refute
the charges and clear one’s name. Id. Although this Court has not addressed a name-
clearing hearing as applicable relief, the Third Circuit held that a public employee
who is defamed in the course of being terminated or constructively discharged can
bring a claim for a post-termination name-clearing hearing and satisfies the stigma-
plus test even if, as a matter of state law, he lacks a property interest in the job he
lost. See Hill, 455 F.3d at 238; see also Graham v. Johnson, 249 F. Supp. 2d 563,
568 (3d Cir. 2003) (concluding that a lack of protectible property interest in
employment with the Philadelphia Police Department does not preclude employee
from bringing a claim for a post-termination name-clearing hearing).
However, to satisfy the stigma-plus test, Clemens must allege facts
showing harm to his reputation, that is, a false and stigmatizing statement about him
was published or disseminated. See Hill, 455 F.3d at 236 (explaining that to satisfy
the “stigma” prong of the test, it must be alleged that the purportedly stigmatizing
statement(s) . . . were made publicly”)). Clemens alleges that a false and
stigmatizing impression of him as a cheater is memorialized in his termination letter
and file, but this is not sufficient to support the publication requirement. See Bishop
v. Wood, 426 U.S. 341, 348 (1976) (explaining that the reasons for the discharge
must be made public to form a basis for the conclusion that the employee’s “good
name, reputation, honor, or integrity” was impaired to support a deprivation of
liberty interest claim). Although Clemens cites to cases from other federal circuit
courts to support his position,6 the United States Court of Appeals for the Third
6
See, e.g., Brandt v. Bd. of Coop. Educ. Servs., 820 F.2d 41, 45 (2d Cir. 1987) (explaining
that if the plaintiff “is able to show that prospective employers are likely to gain access to his
personnel file and decide not to hire him, then the presence of the charges in his file has a damaging
effect on his future job opportunities[,]” and therefore, the “presence of the charges in his personnel
file coupled with a likelihood of harmful disclosure” are sufficient to meet the publication
12
Circuit7 has explained that simply depositing material into an employee’s personnel
file does not meet the publicity requirement, as there must be a dissemination of the
contents of the personnel file to prospective employers, or others, to support a
deprivation of liberty interest claim. See Copeland v. Phila. Police Dep’t, 840 F.2d
1139, 1148 (3d Cir. 1988) (explaining that to succeed on a claim based on
deprivation of liberty interest, the petitioner must establish that the reason for his
termination was made public); see also Cooley v. Pa. Hous. Fin. Agency, 830 F.2d
469, 473-75 (3d Cir. 1987), abrogated on other grounds by Foster v. Chesapeake
Ins. Co., 933 F.2d 1139, 1148 (3d Cir. 1991) (holding that a termination letter placed
in an employee’s personnel file is not sufficient to support a deprivation of liberty
requirement); see also Sciolino v. City of Newport News, 480 F.3d 642, 650 (4th Cir.) cert. denied,
552 U.S. 1076 (2007) (holding that the plaintiff must allege a likelihood that prospective
employers or the public at large will inspect the personnel file).
We further note that Clemens cites Morgan v. Covington Township, 648 F.3d 172, 181 (3d
Cir. 2011), and asserts that the “Third Circuit cited Brandt, with apparent approval, for the
proposition that the placement of a termination letter in the plaintiff’s personnel file can constitute
public disclosure or ‘publicity’ only where the plaintiff can show the file is likely to be disclosed
to prospective employers.” Clemens’ Brief at 32 n.10. We disagree as Morgan does not concern
a personnel file and cites to Brandt only for the proposition that the plaintiff had to produce
evidence to show an instance of publication. In Morgan, the Third Circuit affirmed the district
court’s finding that summary judgment was appropriate because Morgan failed to produce
evidence to “identify any instance in which any defendant publicly accused him of a crime.”
Morgan, 648 F.3d at 175. In so concluding, the Third Circuit relied on Hill, 455 F.3d at 236, a
later decided Third Circuit case, and stated that “Morgan would have to show that [the defendant]
publicized a false, stigmatizing statement about him” to withstand summary judgment. Morgan,
648 F.3d at 181.
7
We are not obligated to follow the decisions of federal district and intermediate appellate
courts on issues of federal law as they are persuasive precedent. Commonwealth v. Hicks, 208
A.3d 916, 936 n.13 (Pa. 2019); Hall v. Pa. Bd. of Prob. & Parole, 851 A.2d 859, 863-65 (Pa.
2004); West Chester Area Sch. Dist. v. A.M., 164 A.3d 620, 630 (Pa. Cmwlth. 2017). Though we
are not bound to follow the Third Circuit Court of Appeals, “when possible, it is appropriate for a
Pennsylvania appellate court to follow the Third Circuit’s ruling on federal questions to which the
U.S. Supreme Court has not yet provided a definitive answer.” West Chester Area Sch. Dist., 164
A.3d at 630.
13
interest claim because there must be an actual dissemination of the defamatory letter
to prospective employers). Clemens alleges no facts to show that the allegedly false
and stigmatizing statements, that he was discharged for cheating, were published to
prospective employers or others.
Clemens does allege that the statements contained in his personnel file
are “likely” to be publicized in response to prospective employers or to those making
requests under the Right-to-Know Law.8 Petition ¶¶ 58, 98 & 100. However, these
allegations, if proven, would not establish that his reputation had actually been
harmed but, instead, are merely speculative and show only that Clemens’ reputation
could be harmed in the future upon occurrence of the publication. See Cooley, 830
F.2d at 473-75 (holding that termination letter placed in employee’s personnel file
is not sufficient to support deprivation of liberty interest claim as there must be actual
publication); Copeland, 840 F.2d at 1148.
Additionally, Clemens alleges:
PSP announced the ‘cheating scandal,’ to the public, and
subsequently announced the identities of those cadets in
the 144[th] [c]lass who graduated from the Academy.
Those knowing Clemens was a cadet in the 144[th] [c]lass,
reviewing the graduation list and finding Clemens’ name
absent, knew that Clemens was terminated, or resigned, in
connection with the ‘cheating scandal.’
Petition ¶ 101; see also Petition ¶ 57 (alleging “[t]hose cadets who had been
dismissed or resigned in connection with the ‘cheating scandal,’ like Clemens, could
be determined by their absence from that list”). These allegations, if proven, would
8
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
14
not establish that a false and stigmatizing impression of Clemens was published, and
therefore, he fails to allege harm.
In other words, Clemens has not alleged facts that would establish that
PSP published a list of cadets who failed to graduate because they were found guilty
of cheating or were forced to resign in connection with cheating even though they
did not cheat. Rather, these facts, if proven, show only that (1) an announcement
was published about the cheating scandal involving the 144th class, and (2)
subsequently, a list was published identifying the names of the cadets in the 144th
class that graduated from the Academy, which did not include Clemens. Petition ¶¶
50 & 59. Because Clemens was not identified in the graduation list or the
announcement regarding the cheating scandal, those publications did not, in any
way, relate to Clemens personally, directly connect Clemens to the cheating scandal,
or provide any facts relating to Clemens’ discharge. Cf. Hill, 455 F.3d at 239
(explaining that if the defamation occurred in connection with the employee’s
discharge, then this is sufficient to meet the “plus” prong); see Petition ¶¶ 14, 51 &
56-57. For the foregoing reasons, we sustain the PSP and the Lt. Col.’s preliminary
objections as to Count II of the Petition asserting a deprivation of liberty interest in
reputation.9
Because we sustain the PSP and the Lt. Col.’s preliminary objections
in the nature of a demurrer as to Counts I and II of Clemens’ Petition, the Petition is
dismissed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
9
Due to our disposition on the two preliminary objections addressed herein, we do not
reach the preliminary objection that the Section 1983 claim cannot proceed against the PSP and
the Lt. Col. because they are not subject to suit.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ethan Clemens, :
Petitioner :
:
v. :
:
Pennsylvania State Police and :
Lieutenant Colonel Lisa Christie :
(Individually and in her capacity :
as Lieutenant Colonel of the :
Pennsylvania State Police), : No. 59 M.D. 2018
Respondent :
ORDER
AND NOW, this 7th day of February, 2020, the preliminary objections
in the nature of a demurrer filed by the Pennsylvania State Police and Lieutenant
Colonel Lisa Christie as to Counts I and II of Ethan Clemens’ Petition for Review
(Petition) are sustained, and the Petition is dismissed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge