Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-14-2000

Boyanowski v. Capital Area
Precedential or Non-Precedential:

Docket 98-7324 98-7349




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Filed June 14, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 98-7324 and 98-7349

DONALD BOYANOWSKI, Individually; DONALD
BOYANOWSKI, tdba, Boyo Transportation Services Inc.;
DOROTHY BOYANOWSKI; BOYO TRANSPORTATION

SERVICES INC.; MICHAEL LABALOKIE

v.

CAPITAL AREA INTERMEDIATE UNIT; JOHN E. NAGLE;
ED FRYE; *ROGER MORRISON, Individually; MARK
BAUER; *WEST PERRY SCHOOL DISTRICT

CAPITAL AREA INTERMEDIATE UNIT; JOHN E. NAGEL;
ED FRYE, Appellants in 98-7324

DONALD BOYANOWSKI; MICHAEL LABALOKIE,

Appellants in 98-7349

*Dismissed - Per Court's order of 7/26/99.

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 94-cv-01252)
District Judge: Honorable Sylvia H. Rambo

Argued: September 23, 1999

Before: BECKER, Chief Judge, and GARTH, Circuit Judge

and POLLAK, District Judge.**

(Filed: June 14, 2000)
_________________________________________________________________

** Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
       STUART L. KNADE, ESQUIRE
        (ARGUED)
       Pennsylvania School Boards
        Association
       774 Limekiln Road
       New Cumberland, PA 17070-2398

       Counsel for Capital Area
       Intermediate Unit John E. Nagle
       and Edward T. Frye

       DONALD A. BAILEY, ESQUIRE
        (ARGUED)
       Suite 209
       3540 North Progress Avenue
       Harrisburg, PA 17110

       Counsel for Donald Boyanowski;
       Dorothy Boyanowski; Boyo
       Transportation Services, Inc.; Michael
       Labalokie; Donald Boyanowski
       t/d/b/a/ Boyo Transportation
       Services, Inc.

       SAMUEL C. STRETTON, ESQUIRE
       301 South High St.
       P.O. Box 3231
       West Chester, PA 19381

       Counsel for Michael Labalokie and
       Donald Boyanowski

OPINION OF THE COURT

BECKER, Chief Judge.

These appeals arise from a judgment entered in the
District Court on separate jury verdicts in favor of a
transportation contractor and his wife in their respective
civil rights and civil conspiracy suits against a local
government entity and its officials. Donald Boyanowski
alleged that his efforts to furnish transportation services to
school districts failed because of conduct by local officials
that violated his substantive due process rights. Dorothy

                               2
Boyanowski claimed to have been the victim of a civil
conspiracy by two local officials that prevented her from
receiving contracts to work as a bus driver. The appeal of
the verdict in Donald Boyanowski's favor requires
consideration of the relation, and separation, between
federal constitutional and state tort actions. The appeal of
the verdict in Dorothy Boyanowski's favor presents the
question whether a plaintiff 's verdict for (state law) civil
conspiracy can survive when the jury has found for the
defendant on the underlying tort.

The first verdict, in favor of Donald Boyanowski and
against his former employer, the Capital Area Intermediate
Unit ("CAIU"), was entered on his claim that the CAIU's
conduct violated his substantive due process rights. He also
won a verdict against John Nagle, who had been executive
director of the CAIU, but the District Court set it aside on
qualified immunity grounds. Mr. Boyanowski's claims are
essentially state tort defamation claims that do not
implicate a federal constitutional interest. Constitutional
claims of this sort have been implicitly rejected by the
Supreme Court, see Siegert v. Gilley, 

(1991),
and find no basis in our jurisprudence. We will therefore
set aside the jury verdict in Mr. Boyanowski's favor. In light
of our conclusion that he has not been deprived of
constitutionally protected rights, there is no need to
consider his cross-appeal of the District Court's decision to
grant Nagle qualified immunity.

The second verdict, in favor of Dorothy Boyanowski
against two CAIU officials, is for civil conspiracy. She
claimed that officers of the CAIU conspired to interfere with
her contract rights as part of their campaign against her
husband. The jury found in her favor on her civil
conspiracy complaint while rejecting her claim for tortious
interference with contract. In light of the jury'sfinding that
the underlying tort did not occur, we conclude that the civil
conspiracy claim can not survive. See GMH Assoc., Inc. v.
Prudential Realty Group, CB, ___ A.2d ___, No. 198 EDA
1999, 

(Pa. Super. Ct. March 1, 2000);
Pelagatti v. Cohen, 

(Pa. Super. Ct. 1987). We
will therefore set aside the verdict on civil conspiracy as
well, and remand with directions to enter judgment for the
defendants on all counts.

                               3
I.

The CAIU is a governmental entity operating under
Pennsylvania's public school laws. Intermediate units

("IUs") are part of the state's public school system and
operate service programs that are open to the local public
school districts assigned to each intermediate unit. See Pa.
Stat. Ann. tit. 24 S 9-951 et seq. The board of directors of
the IU is elected from the boards of directors of the
component school districts. See 

The CAIU is
one of twenty-nine IUs in the state. See id.S 9-952. The
CAIU provides transportation for disabled children to and
from classes and programs throughout the unit's region. It
does so through a combination of employees and
independent contractors. Prior to his retirement in July
1993, defendant John Nagle, as is noted above, was
Executive Director of the CAIU. Defendant Edward Frye was
the Assistant Executive Director and succeeded Nagle as
Executive Director.

Until his retirement in March 1993, Donald Boyanowski
was the CAIU transportation supervisor. After retiring, he
established Boyo Transportation Services, Inc. ("Boyo"),
which sought to contract for special transportation services
with the member school districts of the CAIU. This entailed
convincing them to no longer acquire such services through
the CAIU. Mr. Boyanowski was therefore effectively
competing with his former employer. Having been
unsuccessful in persuading any member districts to accept
his contract proposals, he brought suit under 42 U.S.C.
S 1983, contending that his lack of success was the product
of a violation of his substantive due process rights. At trial,
he produced evidence that Nagle unfairly blamed him for
rising costs of the CAIU program that occurred while he
was a supervisor, and had referred to Mr. Boyanowski as a
"crook" in a meeting of the CAIU superintendents council.
Mr. Boyanowski alleged these actions were part of a
concerted effort to keep him from obtaining any contracts.

The jury found that the CAIU's and Nagle's conduct
violated Mr. Boyanowski's substantive due process rights,
and awarded compensatory damages in the amount of
$50,000 against the CAIU and $100,000 against Nagle. The
jury also awarded $100,000 in punitive damages against

                               4
Nagle. On post-trial motions, the District Court ruled that
Nagle was entitled to qualified immunity on the substantive
due process claim, and it set aside the verdict and damages
against him. The CAIU appeals the substantive due process
judgment against it, and Mr. Boyanowski cross appeals the
grant of qualified immunity to Nagle.

The jury also considered several claims brought by
Dorothy Boyanowski. She had been employed as an
independent contractor bus driver for the CAIU. After her
husband established Boyo, Ms. Boyanowski's contract was
not renewed. She contended that Frye and Nagle engaged in
conduct that amounted to tortious interference with
contract against her as well as a civil conspiracy. She
produced evidence at trial not only that her contract was
not renewed, but also that Frye had made statements that
were relayed to one of CAIU's busing contractors that hiring
her would not be a "good idea," and that this
communication occurred while Nagle was still in charge.
Ms. Boyanowski also produced evidence that Nagle had
sent her a letter informing her that her contract would not
be renewed. The jury found for the defendants on the
tortious interference with contract claim, but ruled in Ms.
Boyanowski's favor as to the civil conspiracy, awarding her
$50,000 against Nagle and $100,000 against Frye. The
defendants also appeal this judgment.

The District Court had jurisdiction over Donald
Boyanowski's civil rights claim under 28 U.S.C.SS 1331,
1343. It had supplemental jurisdiction over Dorothy
Boyanowski's state law claims pursuant to 28 U.S.C.
S 1367. Our jurisdiction over the District Court's final order
is based on 28 U.S.C. S 1291. Our review of all legal
questions is plenary.

II.

The core of due process is the protection against
arbitrary governmental action and has procedural and
substantive components. See County of Sacramento v.
Lewis, 

, 845-46 (1998). The substantive
component of the Due Process Clause limits what
government may do regardless of the fairness of procedures

                                5
that it employs, and covers government conduct in both
legislative and executive capacities. See 

The
CAIU's appeal requires us to address executive conduct
alleged to have infringed upon Donald Boyanowski's rights
as protected by the Due Process Clause of the Fourteenth
Amendment.

Unfortunately for Mr. Boyanowski, his substantive due
process claim is properly read as a state law defamation
claim. This is even made clear by his own brief, which
indicates that his S 1983 claim is based on defamation and
exists solely to circumvent Pennsylvania sovereign
immunity against state tort claims. As the Boyanowskis'
brief recites:

       According to appellants, if a government entity is
       interested in doing business, and in the process uses
       its political power and muscle to systematically destroy
       the business opportunities of a competing private
       citizen through slur, innuendo, and outright false
       accusations, then the misconduct is simply not
       actionable. In Pennsylvania sovereign immunity
       protects government from tortious interference with
       contracts suits. Appellants know there is no adequate
       recourse under state defamation law also because of
       sovereign immunity statutes.

Appellee's Br. at 8 (emphasis added). Of course the lack of
availability of a state law remedy will not serve to elevate an
ordinary tort to a constitutional violation. The degree to
which Pennsylvania wishes to waive sovereign immunity
claims for state causes of action is the quintessence of a
state law question.

In instructing the jury on Mr. Boyanowski's substantive
due process claim, the District Court charged:

        You must first decide if each of plaintiffs were
       deprived of a fundamental right. You are advised that
       there is no constitutionally protected right to obtain
       future government contracts, and that suspension or
       debarment from bidding on government contracts may
       be a basis for liability only if it is based upon a charge
       of fraud or dishonesty.

                                6
        Plaintiffs must therefore show that the government
       officials stigmatized plaintiff by publishing charges of
       fraud or dishonesty which were substantially and
       materially false, and that the defendants making them
       knew they were false or had serious doubts about the
       truth of these statements, and that those statements
       had the effect of preventing plaintiff from engaging in
       the transportation business.

App. 100.

Assuming arguendo that the jury's verdict for Mr.
Boyanowski on this charge was supported by the evidence,
we must determine if the substance of the charge was
correct, i.e., whether defamatory statements that curtail a
plaintiff 's business opportunities suffice to support a
substantive due process claim. At the outset of this inquiry,
we must be mindful of the Supreme Court's commands in
addressing the interplay of constitutional and state tort
law. First, the Fourteenth Amendment is not "a font of tort
law to be superimposed upon whatever systems may
already be administered by the States." Paul v. Davis, 

, 701 (1976). Second, we must remember that"[a]s
a general matter, the [Supreme] Court has always been
reluctant to expand the concept of substantive due process
because guideposts for responsible decisionmaking in this
uncharted area are scarce and open-ended. The doctrine of
judicial self-restraint requires us to exercise the utmost
care whenever we are asked to break new ground in this
field." Collins v. City of Harker Heights , 

, 125
(1992) (citation omitted). Addressing the substantive due
process claim, therefore, requires scrupulous attention to
the guideposts that have previously been established.

A.

We note preliminarily that establishing a substantive due
process claim even when executive action has infringed an
interest protected by the Due Process Clause is difficult.
"Our cases dealing with abusive executive action have
repeatedly emphasized that only the most egregious official
conduct can be said to be `arbitrary in the constitutional
sense. . . .' " County of Sacramento v. Lewis, 

,

                               7
846 (1998) (quoting Collins v. Harker Heights , 

, 129 (1992)) (emphasis added). For executive conduct,
the Supreme Court has "for half a century now . .. spoken
of the cognizable level of executive abuse of power as that
which shocks the conscience." See 

the challenged action rises to this level has been described
as a "threshold" question in a challenge to an executive
action. See 

n.8 ("[T]he threshold question is
whether the behavior of the governmental officer is so
egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience. . . . Only if the necessary
condition of egregious behavior were satisfied would there
be a possibility of recognizing a substantive due process
right to be free of such executive action . . . .").

Though we construe the trial record in Mr. Boyanowski's
favor, we cannot agree that the conduct of which he
complains rises to the level required by the Supreme Court
in Lewis. The statements allegedly made about Donald
Boyanowski--that he was a "crook" and was responsible for
cost overruns of the CAIU's transportation program--had
no direct legal effect upon him. He was not prohibited from
bidding on contracts or otherwise restricted in his conduct,
and the comments were not publicized in a manner that
would humiliate him before the community at large. At
least one of our sister circuits has found that far more
defamatory statements did not rise to a conscience-
shocking level for substantive due process purposes. See
Mertik v. Blalock, 

, 1367-68 (6th Cir. 1993)
(affirming district court conclusion that banning coach from
city ice rink and publishing to third parties false statements
that coach was sexually abusing minor students did not
rise to conduct that shocked the court's conscience). The
evidence in this case does not rise to the level of truly
egregious conduct that is required for a substantive due
process claim as described by the Supreme Court in Lewis.
At worst, the evidence indicates sharp business practices
by a competitor.

It is true that Lewis teaches that what"shocks the
conscience" varies from circumstance to circumstance. See

("Deliberate indifference that shocks
in one environment may not be so patently egregious in

                               8
another, and our concern with preserving the constitutional
proportions of substantive due process demands an exact
analysis of circumstances before any abuse of power is
condemned as conscience-shocking."). We need not,
however, definitively calibrate the egregiousness level that
Lewis would require of a defamation-type claim because
other precedent makes clear that this sort of claim cannot
present a substantive due process violation in thefirst
place.

B.

The Supreme Court has made clear that federal courts
are not to view defamatory acts as constitutional violations.
In Paul v. Davis, 

(1976), a procedural due
process case, the Court held that defamation by itself did
not harm a "liberty" interest protected under the
Fourteenth Amendment. Paul involved a plaintiff whose
name and photograph appeared on a police flyer that was
captioned "Active Shoplifters" and distributed among
merchants. The Court turned aside a procedural due
process claim on the grounds that harm to reputation alone
did not suffice for a constitutional tort based on procedural
due process. See 

Although the claim was
based in procedural due process, the Court's holding was
that the interest in reputation was neither "liberty" nor
"property" that was protected by the Due Process Clause.
See 

Even more relevant to the case at hand is the Court's
return to the issue in Siegert v. Gilley, 

(1991).
In Siegert, the plaintiff was a clinical psychologist who had
been employed by a federally operated hospital in
Washington, D.C. He resigned his post, rather than face
termination, and found another position at a U.S. Army
hospital in West Germany. That position required
"credentialing," the securing of which required plaintiff to
ask his former employer to provide information to the Army
facility. In response to the request, his former supervisor
wrote a letter that labeled plaintiff as inept, unethical, and
untrustworthy. Plaintiff was subsequently denied the
necessary credentials and ultimately lost his position. He
then brought a Bivens action against his former supervisor.

                               9
See 

The Supreme Court rejected the claim.
Though the Court acknowledged that defamation injuries
do indeed lead to monetary losses that flow from the injury
to reputation, it stated that "so long as such damage flows
from injury caused by the defendant to a plaintiff 's
reputation, it may be recoverable under state tort law but
it is not recoverable in a Bivens action." 

"The
statements contained in the letter would undoubtedly
damage the reputation of one in his position, and impair
his future employment prospects. But the plaintiff in Paul
v. Davis similarly alleged serious impairment of his future
employment opportunities as well as other harm." 

therefore concluded that Siegert failed to allege a
constitutional deprivation. See 

Donald Boyanowski also alleged that harm flowed from
the statements made about him insofar as he was unable
to receive any of the contracts for which he bid. We do not
see how his harm was of a different nature from that
alleged in Siegert. Both plaintiffs alleged harm flowing from
defamatory statements made by former employers. It is
therefore hard to see how Siegert is not fatal to the
substantive due process claim.1 Even if Siegert is construed
strictly as a procedural due process case, it does not
support the claim because Siegert declares that the claim of
harm flowing from the defamatory statement is not a liberty
interest protected by the Due Process Clause. Cf. Reich v.
Beharry, 

, 244 (3d Cir. 1989) ("[I]n this circuit
at least, not all property interests worthy of procedural due
process protection are protected by the concept of
_________________________________________________________________

1. The similarity of harms in the two cases also would appear to doom
any effort to link the "stigma plus" analysis that has characterized
procedural due process cases that have arisen in wake of Paul v. Davis
and concern defamatory statements, see, e.g., Ersek v. Township of
Springfield, 

, 83 n.5 (3d Cir. 1996), with the substantive due
process claim urged by Mr. Boyanowski. Even if we were to entertain
such an application, our precedents are decidedly against such claims.
See, e.g., Kelly v. Borough of Sayreville, 

, 1078 (3d Cir.
1997) ("[E]ven financial injury due solely to government defamation does
not constitute a claim for deprivation of a constitutional liberty
interest."); Sturm v. Clark, 

, 1012-13 (3d Cir. 1987) ("Most,
if not all, charges of defamation are inevitably accompanied by financial
loss.").

                               10
substantive due process."); In re Selcraig , 

,
796 (5th Cir. 1983) (rejecting substantive due process claim
arising from stigmatization of discharged employee but
discussing potential availability of procedural name-clearing
hearing). Indeed, it would be an odd result to hold that the
CAIU was free to stigmatize Mr. Boyanowski without
providing him with procedural protections from the
statements, but was not free to make the statements
without incurring liability under the Constitution.
Upholding the substantive due process claim, therefore,
would not be supported by Supreme Court precedent.

Neither does Mr. Boyanowski's claim find refuge in those
Third Circuit cases that have upheld substantive due
process claims. We have recognized substantive due
process claims in certain limited circumstances when the
existence of procedural due process protections is not at
issue. See, e.g., Independent Enters., Inc. v. Pittsburgh
Water & Sewer Auth., 

, 1179 (3d Cir. 1997).
We have never, however, suggested that a substantive due
process cause of action lies for the kind of claim pursued
in the District Court.

Independent Enterprises, Inc. v. Pittsburgh Water and
Sewer Authority is perhaps the most analogous precedent.
The facts in that case presented a stronger basis for a
substantive due process claim than do those in the case at
hand because there was evidence of direct interference by
executive actors with the procurement of contracts. The
plaintiff was a contractor who had entered into a consent
decree with a city water and sewer authority. That decree
precluded the contractor's being barred based on past
performance from bidding on city contracts. In subsequent
bids, the contractor was the low bidder on two contracts
and received neither. In one case, the contracting authority
was ordered to halt awarding contracts to the contractor
because of a cost overrun in a recent project. These actions
appeared to violate the consent decree, which provided that
the contractor could not be "disqualified" based on post-
decree performance absent a hearing under local law. See

In ruling whether those facts could be used to state a
substantive due process claim, we summarized our
substantive due process jurisprudence as follows:

                                11
       Although the Third Circuit has recognized that a
       governmental deprivation that comports with
       procedural due process may still give rise to a
       substantive due process claim "upon allegations that
       the government deliberately and arbitrarily abused its
       power," we have also held that a substantive due
       process claim grounded in an arbitrary exercise of
       governmental authority may be maintained only where
       the plaintiff has been deprived of a "particular quality
       of property interest." Although our court has suggested
       that only fundamental property interests are worthy of
       substantive due process protection, it has provided
       little additional guidance regarding what specific
       property interests should receive substantive due
       process protection.

(citations omitted).

Though it ultimately "le[ft] for another day definition of
the precise contours of the `particular quality of property
interest' entitled to substantive due process protection," 

the Independent Enterprises panel observed that
the infringed interest must be a concrete one:

       We have held that "ownership is a property interest
       worthy of substantive due process protection,"
       [DeBlasio v. Zoning Bd. of Adjustment for the Township
       of West Amwell, 

, 600 (3d Cir. 1995)], but
       we have found that neither interest in prompt receipt
       of payment for professional services provided to the
       state, 

, nor state law
       entitlement to water and sewer services, Ransom v.
       Marrazzo, 

, 411-12 (3d Cir. 1988), are the
       "certain quality" of property interest worthy of
       substantive due process protection. We have also
       strongly suggested in dictum that a student's right to
       continued enrollment in a graduate program does not
       rise to such a level on the ground that such an interest
       bears " `little resemblance to the fundamental interests
       that previously have been viewed as implicitly protected
       by the Constitution.' " Mauriello v. Univ. of Med. &
       Dentistry of N.J., 

, 50 (3d Cir. 1986)
       (quoting Regents of Univ. of Michigan v. Ewing , 474

                               

, 229-30, 

, 516, 

       (Powell, J., concurring)).

(quoting Homar v. Gilbert , 

, 1021
(3d Cir. 1996), rev'd on other grounds, 

(1997)).

Applying this precedent, we ruled that the facts in
Independent Enterprises did not give rise to a viable
substantive due process claim, observing that we had"no
difficulty" in concluding that the alleged interest was not
the sort of fundamental interest protected by substantive
due process. See 

the facts in Independent
Enterprises, where defendants actively prevented plaintiffs
from winning contracts in violation of a consent decree, as
constituting a more compelling claim that a protected
interest had been violated than that proffered by Donald
Boyanowski, who was never barred from having his bids
considered. There is no basis in our substantive due
process precedent for according him the relief that he
seeks.

C.

The District Court's jury instruction characterized the
issue at stake as Donald Boyanowski's liberty interest to
engage in the transportation business. In its denial of
CAIU's post-trial motion, the District Court defended this
characterization by referring to Meyer v. Nebraska, 

(1923). The District Court described Donald
Boyanowski's defamation-based damages as "derived from a
fundamental liberty interest to engage in the common
occupations of life protected by the Fourteenth
Amendment." Op. at 10 (citing Meyer, 

, 399
(1923)).

As discussed above, our precedent has never read
substantive due process as extending as far as did the
District Court. Contrary to that court, we do not view Meyer
as helpful to the substantive due process claim before us.
Meyer involved a prosecution of a teacher who violated a
statutory bar on the teaching of a foreign language. In
reversing the conviction on due process grounds, the
Supreme Court uttered the broad and celebrated language

                                13
about the right to engage in any of the common
occupations of life, on which the District Court's opinion
relies. See 

. The case turned,
however, on a direct bar to the teacher's teaching, as well
as the concurrent interference in parental rights over
children. See 

The more analogous situation for
Mr. Boyanowski, if Meyer were relevant, would have
involved a prosecution targeting him for the mere act of
bidding on transportation contracts. His actual situation
was too remote from the facts of Meyer for that case to have
particular applicability.

The Supreme Court has already held that Meyer may not
be read to constitutionalize all executive actions that affect
the pursuit of a profession in any way. See Conn v.
Gabbert, 

(1999). In Conn, the Court
rejected an attorney's attempt to claim that a search
warrant executed upon him while his client was testifying
before a grand jury violated the attorney's Fourteenth
Amendment right to practice his profession. In so doing,
the Court focused on the language of Meyer on which the
District Court relies here, but specifically rejected its
application to the plaintiff 's circumstances. See 

We similarly view Meyer as too slender a reed on which to
rest Mr. Boyanowski's substantive due process claim.

Moreover, the approach taken by the District Court
would subsume broad categories of tort law under the
constitutional aegis. Equating a defamatory statement that
leads to a third party's not extending a contract to a
frustrated plaintiff with the deprivation of the plaintiff 's
legal right to engage in the common occupations of life in
a manner protected by the Fourteenth Amendment goes too
far. It is true that such an action has some effect on an
individual's ability to navigate the often treacherous waters
of government contracting, but to leap to the broad level of
generality necessary to classify the harm in substantive due
process terms would constitutionalize broad swaths of state
tort law.

If Donald Boyanowski's claim can survive, the same
could be said for any number of mundane state tort cases
that lack a clear constitutional basis. In addition to
implicitly overruling the Supreme Court's holding in Siegert,

                               14
upholding the verdict would ignore the Supreme Court's
twin commands that the Fourteenth Amendment not
become a font of tort law that supplants state systems, see

, and that the cause of action
encompassed by substantive due process not be expanded
without extreme care, see 

.

Because Donald Boyanowski's claim, the record evidence,
and the District Court's jury instruction all point to a state
law defamation claim and not a constitutional substantive
due process claim, we will reverse the judgment entered on
the jury verdict in favor of Mr. Boyanowski on his
substantive due process claim against the CAIU. Our ruling
in this regard moots his cross-appeal as to the District
Court's grant of qualified immunity to Nagle.

III.

We turn to Dorothy Boyanowski's jury verdict for civil
conspiracy against Frye and Nagle. The defendants offer an
array of arguments in support of our setting aside the
verdict. First, they submit that the jury's verdict in their
favor as to the underlying tort of tortious interference with
contract requires dismissal of the civil conspiracy verdict.
Second, they contend that the defense verdict on the tort
claim vitiates any award of damages on the conspiracy
claim. Third, the defendants argue that they had no legal
capacity to conspire; they submit that because under
Pennsylvania precedent a corporation cannot conspire with
itself, Dorothy Boyanowski had to prove that Frye or Nagle
was acting outside the scope of his duty for personal
reasons. Fourth, the defendants claim that there was no
evidence of a concerted action or common scheme
necessary to sustain a conspiracy finding. Fifth, the
defendants assert that no evidence was presented
indicating that Frye and Nagle willfully engaged in unlawful
conduct, and that such evidence is a prerequisite for the
removal of their statutory immunity under Pennsylvania
law. Furthermore, the defendants submit that Frye and
Nagle should have been given absolute immunity as"high
public officials." Finally, the defendants claim that there
was insufficient evidence to support the jury's verdict
against them on the claim of civil conspiracy.

                               15
Many of these assignments of error pertain to the
sufficiency of the evidence presented by Ms. Boyanowski at
trial. Unfortunately, rather than provide any citations to the
record in their brief on appeal, which consisted mostly of
assertions that were unsupported by citation, legal or
otherwise, the Boyanowskis' counsel elected simply to
submit several volumes of trial transcript, refer to the trial
record as a whole, and unhelpfully tell this Court that "only
a review of the entire record can totally illuminate the entire
picture heard by the jury." Appellees' Br. at 14. At oral
argument the panel afforded counsel a second opportunity
to point to specific instances in the record that supported
the jury's findings in this matter. Although the evidence in
the record finally cited by the Boyanowskis' lawyer is
exceedingly thin, possibly to the point of justifying reversal
on insufficiency grounds alone, we need not consider the
weight of the evidence presented at trial because the issue
can ultimately be disposed of on the defendants'first
assignment of error.

In their brief, the defendants point to Pennsylvania
precedent that holds that a claim of civil conspiracy cannot
be pled without also alleging an underlying tort. See, e.g.,
Nix. v. Temple Univ., 

, 1137 (Pa. Super. Ct.
1991); Pelagatti v. Cohen, 

, 1342 (Pa. Super.
Ct. 1987). They fail, however, to cite authority for the
proposition that once an underlying tort has been alleged,
only a finding that the underlying tort has occurred will
allow an appellate court to sustain a similar finding on the
civil conspiracy charge. The rule that civil conspiracy may
not exist without an underlying tort is a common one. See
In re Orthopedic Bone Screw Prods. Liab. Litig., 

, 789 & n.7 (3d Cir. 1999) (collecting cases). Indeed, "we
are unaware of any jurisdiction that recognizes civil
conspiracy as a cause of action requiring no separate
tortious conduct." 

It is not surprising that there
are few cases dealing with the sort of mixed verdict we have
here, as a jury would not logically be expected to determine
that civil conspiracy occurred, but that the underlying tort
did not. Candidates for such verdicts would usually be
screened out at the summary judgment or pleading stage,
and that is indeed where most precedents that state the
underlying tort rule are to be found. We must therefore

                               16
predict whether the Pennsylvania Supreme Court would
apply a rule that is normally employed at the pleading stage
to overturn a jury verdict for civil conspiracy in a plaintiff 's
favor. We predict that it would.

In predicting how a matter would be decided under state
law we examine: (1) what the Pennsylvania Supreme Court
has said in related areas; (2) the decisional law of the
Pennsylvania intermediate courts; (3) federal appeals and
district court cases interpreting the state law; and (4)
decisions from other jurisdictions that have discussed the
issues we face here. See Wiley v. State Farm Fire & Cas.
Co., 

, 459-60 (3d Cir. 1993). While we lack a
clear statement from the Pennsylvania Supreme Court on
the precise question at issue, a panel of the Pennsylvania
Superior Court recently decided a case that would
decisively resolve the issue if we follow the resulting
precedent. See GMH Assoc., Inc. v. Prudential Realty Group,
CB, ___ A.2d ___, No. 198 EDA 1999, 

(Pa.
Super. Ct. March 1, 2000).

GMH arose out of a failed real estate transaction. The
trial court, sitting without a jury, found defendants liable to
plaintiffs for breach of contract, breach of duty to negotiate
in good faith, promissory estoppel, fraudulent
misrepresentation, fraudulent non-disclosure, and civil
conspiracy. See 

On appeal, the Pennsylvania
Superior Court concluded that no fraud had actually
occurred. See 

The claim of fraud was the
underpinning for the civil conspiracy claim. See 

Because the fraud claim was set aside, the court held that
the civil conspiracy claim could not survive:

        [Plaintiffs'] conspiracy claims were based on the
       allegation that all defendants conspired to defraud
       [plaintiff]. Because we conclude that no fraud was
       committed, we correspondingly find that no civil
       conspiracy to defraud occurred. See generally
       [Rutherford v. Presbyterian-Univ. Hosp., 

,
       508 (Pa. Super. 1992)] (citing Rose v. Wissinger, 

, 

(1982) (where
       complaint fails to set forth claim for defamation or
       outrageous conduct causing emotional distress, there
       could be no conspiracy to commit those acts); and

                               17
       Raneri v. DePolo, 65 Pa.Cmwlth. 183, 

,
       1376 (Pa.Cmwlth. 1982) (under Pennsylvania law,
       when a party fails "to sufficiently allege in[other]
       counts any unlawful act or unlawful means" the
       conspiracy claim must also fail when it is based on
       these claims)).

quoted passage makes clear, the court did not
dismiss the conspiracy claims based on an independent
evaluation of their viability in light of the record developed
by the trial court. Rather, the failure of the underlying
fraud claim sufficed as a matter of law to vitiate the finding
of civil conspiracy notwithstanding the fact that it had been
successfully pled as an independent cause of action.

An intermediate appellate state court's decision"is a
datum for ascertaining state law which is not to be
disregarded by a federal court unless it is convinced by
other persuasive data that the highest court of the state
would decide otherwise." West v. American Telephone & Tel.
Co., 

, 237 (1940). We not only conclude that
GMH is persuasive on its logic, but rather thanfinding
sufficient contrary persuasive data, we find other factors
that counsel that we follow the GMH court.

The precept employed by GMH is logically sound. It is
sensible that the rule requiring the existence of an
underlying tort in the pleading stage similarly requires that
the tort be proven if a civil conspiracy claim is to prevail. To
be sure, there are arguments to the contrary. One could
argue the reverse inference and maintain that the jury's
finding that there was a civil conspiracy against Dorothy
Boyanowski that caused damage means that the jury's
ruling for the defendants in the tortious interference of
contract claim was actually the legally incorrect one.
Another argument is that the two causes of action,
whatever their linkage in the pleading stage, are distinct.
Inconsistent jury verdicts are an unfortunate fact of life in
law, and should not, in and of themselves, be used to
overturn otherwise valid verdicts. Cf. Mosley v. Wilson, 

, 90-91 (3d Cir. 1996) (ruling that district court
erred as a matter of law when it directed judgment

                               18
notwithstanding the jury's verdict on one claim on the sole
ground that it was inconsistent with the jury's verdict on
another claim).

We nonetheless believe that the defendants' reading is
the better one in light of the nature of civil conspiracy.
"Since liability for civil conspiracy depends on performance
of some underlying tortious act, the conspiracy is not
independently actionable; rather, it is a means for
establishing vicarious liability for the underlying tort."
Halberstam v. Welch, 

, 479 (D.C. Cir. 1983). A
verdict on civil conspiracy should yield to a finding for the
defendant on the underlying tort because the cause of
action is wholly subordinate to the underlying tort's
existence. We also are supported by the fact that courts in
other jurisdictions have made similar holdings to that in
GMH when faced with similar circumstances. See K&S
Partnership v. Continental Bank, N.A., 

, 980
(8th Cir. 1991); see also Akins v. Zeneca, Inc. , 

, 

, (6th Cir. July 27, 1995) (affirming
district court's dismissal of civil conspiracy claim after close
of plaintiff 's evidence because of failure to prove underlying
tort).

In light of the clear statement by the Pennsylvania
Superior Court, practice in other jurisdictions, and what we
perceive as the logical rule, we predict that if faced with
this matter, the Pennsylvania Supreme Court would reverse
Dorothy Boyanowski's judgment for civil conspiracy. We
therefore need not reach the defendants' other arguments
for reversing the verdict.

The judgment of the District Court will be reversed, with
direction to enter judgment in favor of the defendants on all
counts.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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