IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Patrick Megraw, :

Appellant :

: v. : No. 577 C.D. 2017
: ARGUED: March 6, 2018 School District of Cheltenham : Township :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER , Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

MEMORANDUM OPINION BY JUDGE CEISLER FILED: May 1 , 2018

Appellant Patrick Megraw ( Mr. Megraw ) appeals from two orders issued on April 13, 2017 by the Court of Common Pleas of Montgomery C ounty (Trial Court) in his action against his former employer, Appellee School Di strict of Cheltenham Township (School District ). In this suit, he requested injunctive relief and sought a declaratory judicial determination that Section 111(f.1)(1) of the Public School Code of 1949 ( Code ) , 24 P.S. § 1

- 111(f.1)(1) , 1 which became effective in September 2011 ,

1 If a report of criminal history record information or a form submitted by an employe under subsection (j) indicates the person has been convicted of an offense graded as a felony offense of the first,

seco nd or third degree other than one of the offenses enumerated under subsection (e), the person shall be eligible for continued or prospective employment only if a period of ten years has elapsed from the date of expiration o f the sentence for the offense. Act of March 10, 1949, P.L. 30, as amended , added by Section 1 of the Act of June 30, 2011, P.L. 112.2

and which mandates a 10

- year employment ban for individuals convicted of certain classes of felonies, was unconstitutional as applied to him. One o rder denied Mr. Megraw ’s Motion for Summary Judgment, as well as his Supplemental Motion for Summary Judgment, while the second granted the School District’s “Supplemental Motion for Summary Judgment.” 2 We conclude that, as applied, this statute violates
Mr. M egraw ’s substantive due process rights and therefore reverse the T rial C ourt. In March 1995, the School District hired Mr. Megraw as a groundskeeper and eventually promoted him to the level of foreman. Megraw Dep., 5/2/16 at 5. Mr. Megraw voluntarily resigned from the foreman position in 2010 and returned to his former groundskeeper position, in connection with repeatedly being admonished by his superiors for excessive absences from and lateness to work. Megraw Dep.,
2/10/17 at 10

. Mr. Megraw claimed these issues stemmed from his responsibilities as sole caretaker for his mother, who had been terminally ill with lung cancer and
die d in September 2012, as well as his own health issues. Megraw Dep., 5/2/16 at 5; Megraw Dep., 2/10/17 at 9

- 10

. However, Mr. Megraw ’s overall problematic disciplinary history with the School District dated back to at least March 2006 and extended through August 2015. See David Dep., 2/10/17 at 7

- 21 (deposition testimony from Lynn David, the School District’s Director of Hum an Resources)

. During this time, Mr. Megraw was suspended twice and reprimanded on multiple occasions, both verbally and in writing, due to overuse of leave time, tardiness, poor performance, and sleeping at his work station. See Synopsis of Patrick Meg r aw Documented Discipline and Un satisfactory Work Documentation at 1

- 2

. Yet, despite these ongoing disciplinary problems, the School District did not fire Mr.

2 The School District gave its Motion this name, despite the fact that it constituted the School District’s initial (and only) request for summary judgment. Tr. Ct. Op. at 5 n.6.3

Megraw and never considered this pattern of behavior serious enough to warrant termination of his employment. See David Dep., 5/2/16 at 12. The School District’s handling of Mr. Megraw took a marked turn when, on January 12, 2016, it fired Mr. Megraw after learning that he had been convicted of a felony in June 2009, for violating former Section 6111 (g)(4) of the Uniform
Firearms Act (UFA) , 18 Pa. C.S. § 6111(g)(4) , 3 by knowingly and intentionally providing false information while attempting to purchase a firearm. The genesis of this conviction occurred in 2007, when Mr. Megraw ’s then

- wife filed for divorce. Megraw Dep., 2/10/17 at 18

. Mr. Megraw refused to leave their home and, as a result, his soon

- to

- be

- former spouse obtained a Protection from Abuse Order (PFAO ), which forced Mr. Megraw to leave the marital residence

. Id. at 18

- 19. Afterwards, the relationship between Mr. Megraw and his ex

- wife improved, to the point where they would occasionally have meals together, and he would visit her home to see their children, attend occasional parties, an d help with maintenance
issues. Id. at 15

- 16

. At some point during this time period, Mr. Megraw ’s former spouse allegedly advised him that the PFAO had been dissolved. Megraw Dep.,
5/2/16 at 15. In May 2008, Mr. Megraw went to a Dick’s Sporting Goods s tore in Plymouth Meeting, Pennsylvania , to purchase a .22

- caliber rifle. Id. at 14

. Mr. Megraw filled

3 As of May 2008, this statute contained the following language: Any person, purchaser or transferee who in connection with the purchase, delivery or transfer of a firearm under this chapter knowingly and intentionally makes any materially false oral or written statement or willfully furnishes or exhibits any false identification intended or likely to deceive the seller, licensed dealer or licensed manufacturer commit s a felony of the third degree. Former Section 6111(g)(4) of the UFA, 18 Pa. C.S. § 6111(g)(4) , amended by Section 6 of the Act of October 17, 2008, P.L. 1628.4

out the required rifle purchase application form as part of the i nstant background check process. On this form he stated that he was not subject to any currently outstanding PFAOs. Id

. The store clerk submitted the form and t hen told Mr. Megraw he was not eligible to purchase t he weapon. The clerk advised Mr. Megraw
that the explanation as to why his application was denied would be mailed to him at
a later date. Id. Thereafter, in December 2008, Mr. Megraw was arrested and charged with one count of violating 18 Pa. C.S. § 4904 4 and one count of violating 18 Pa. C.S. § 6111(g)(4). Id. at 17

- 18

. On June 25, 2009, Mr. Megraw ple d guilty
to th e latter, which is a third

- degree felony offense. Id. at 17

- 18; Complaint at 2

. 5 Mr. Megraw was sentenced to four years’ probation, which he completed without
incident. Tr. Ct. Op. at 2. At the time of his conviction in 2009, there was no law that required Mr. Megraw to report his conviction to the School District and , thus , he did not do so. This changed in June 2011 , when the General Assembly enacted Section 111(f.1)(1)
of the Code , to bar any individual who had been convicted of a first, second, or third

degree felony, of a type not otherwise subjecting him to any other type of ban under the Code, from continued employment by a school in this Commonwealth, unless at
least 10 years had e lapsed from the end of the individual’s sentence. 6

4 Sec tion 4904 of the Crimes Code c lassifies certain categories of unsworn false statements as second

- or third

- degree misdemeanors. 18 Pa. C.S. § 4904

.

5 The Commonwealth dropped the charge relating to unsworn falsifications as part of Mr. Megraw ’s plea agreement. See Megraw Dep., 5/2/16 at 19.

6 Section 111 of the Code also mandates bans of varying lengths for certain, enumerated types of felony and misdemeanor convictions, as well as in response to convictions for which the crime has been graded as a first

- degree misdemeanor. See 24 P.S § 1

- 111(e)(1), (f.1)(2)

- (3).5

Subsequently, the General Assembly again amended the Code, mandating that all current school employees submit their state and federal criminal history record s to their employers no later than December 31, 2015, so that the relevant school
administrator could review each submission and determine whether additional action
should be taken. See 24 P.S. § 1

- 111(c.3) , added by Act of February 16, 2016, P.L.
6

. Mr. Megraw provided the School District with the re quired information by this
deadline. Shortly thereafter, o n January 12, 2016, the School D istrict terminated Mr. Megraw due to his June 2009 felony conviction. David Dep., 5/2/16 at 7

- 12

. In February 2016, Mr. Megraw filed suit against the School District, requesting a declaratory finding that 24 P.S. § 1

- 111(f.1)(1) violated his substantive due process rights under Article I, Section 1 of the Pennsylvania Constitution, as applied to him. 7 Thereafter, Mr. Megraw filed his Motio n for Summary Judgment,
which the Trial C ourt denied on November 7, 2016. The next day, Nov ember 8, 2016, the T rial C ourt vacated this ruling and issued a new order, which required the parties to take discovery and/or enter into a stipulation of facts reg arding the following outstanding relevant factual issues discussed in Johnson v. Allegheny
Intermediate Unit , 59 A.3d 10, 24

- 25 (Pa. Cmwlth. 2012):

1. Whether [ Mr. Megraw ’s ] underlying criminal offense affected his ability to perform his job duties as a grou ndskeeper;

7 Mr. Megraw also sought a permanent injunction to prohibit the School District from firing him “solely based upon the [felony] conviction.” Complaint at 2, 5

- 7. As the T rial C ourt noted, though Mr. Megraw initially sought injunctive relief, he had already been fired by the time he filed suit, and never subsequently offered any additional argument in support of his request for a permanent injunction. Therefore, he effectively abando ned that portion of his suit against the School District and focused solely on obtaining a declaratory judgment in his favor. See Tr. Ct. Op. at 4 n.4.6 2. How the 2009 conviction reflects upon [ Mr. Megraw ’s] present abilities to perform his duties with the [ S ] chool [ D ] istrict; 3. [ Mr. Megraw ’s ] job performance from 1995 to the present; 4. The reason why [ Mr. Megraw ’s ] criminal conviction in 2009 is pred ictive of future behavior and continues to
warr ant the harsh result of the ten[

- ] year ban of employment with the [ S ] chool [ D ] istrict; 5. The rational reason that applying a ten [

- ] year ban of employment serves a legitimate governmental purpose to be protected. Tr. Ct. Order, 11/8/16 at 1

. On March 10, 2017, both parties filed Supplemental Motions for Summary Judgment. On March 27, 2017, the Trial C ourt held oral argument regarding these
motions. On April 13, 2017, the Trial C ourt issued two o rders, one granti ng the School District’s Supplemental Motion, and the other denying both Mr. Megraw ’s initial Motion for Summary Judgment, as well as his Supplemental Motion , prompting this appeal to our Court.
S tandard of Review When ruling upon a motion for summary judgment, the trial court must resolve all doubts against the movant, examining the case record in the light most
favorable to the non

- moving party, and “may grant summary judgment only where the right to such a judgme nt is clear and free from doubt.” Fine v. Checcio , 870 A.2d 850, 857 (Pa. 2005). Our standard of review on appeal regarding a trial court’s granting of such a motion is limited to determining whether that decision constituted
an abuse of discretion or an error of law. Salerno v. LaBarr , 632 A.2d 1002, 1003 (Pa. Cmwlth. 1993).7 I ssues On appeal, Mr. Megraw makes the following claims , which we have paraph rased and condensed for clarity. First, 24 P.S § 1

- 111(f.1)(1)’s employment ban and its irrebuttable presumption regarding felony convictions violate Mr. Megraw ’s substantive due process rights, and are thus facially unconstitutional. Megraw ’s Br

. at 14

- 30. Second, the ban and irrebutt able presumption are also
unconstitutional as

- applied, on substantive due process grounds , because his
criminal behavior occurred nearly eight years before his termination and the School
District did not establish that Mr. Megraw ’s decision to pr ovide fals e information in
2008 has , or will have, any e ffect upon his ability to carry out his groundskeeping
duties or rendered him a threat to school safety

. Id. at 30

- 38. Third, the Trial C ourt abused its discretion by factoring Mr. Megraw ’s employment history and evidence regarding the employment

- ban

- related guidance documents issued by the
Commonwea lth’s Department of Education into its rulings upon the parties’ various motions, when his 2009 felony conviction was the exclusive reason for the School
Distr ict’ s decision to terminate him. Id. at 38

- 45. Finally, the Trial Court abused its discretion by determining that Mr. Megraw ’s repeated assertions that he had
believed his ex

- wife had dropped the PFAO constituted dishonesty, and that his
termination was warr anted as a result of this dishonesty. 8 Id. at 45

- 46.

8 The Pennsylvania State Education Association (“PSEA”) also submitted an amicus curiae brief in support of Mr. Megraw

. Therein, PSEA makes essentially the same arguments as Mr. Megraw di d in his brief, except that PSEA also opines that Section 111(f.1)(1) is unconstitutional as applied to Mr. Megraw , due to its retroactive application in h is situation ( i.e. , Mr. Megraw pled guilty to knowingly and intentionally providing false information on his rifle purchase application at a point in time when the law did not mandate his firing consequent to the conviction). Since Mr. Megraw did not rais e this issue himself, we cannot consider it for purposes of this appeal. See Banfield v. Cortes , 110 A.3d 155, 172 n.14 (Pa. 2015) (“ [ A ] micus briefs cannot raise issues not set forth by the parties.”).8 D iscussion

A. Mr. Megraw Has Waived His Challenge to t he Facial Constitutionality

of Section 111(f.1)(1) of the Code Preliminarily, we must note that Mr. Megraw has waived his argument that
Section 111(f.1)(1 ) is facially unconstitutional for a number of reasons. First, Mr. Megraw failed to raise or preserve this issue at the trial level , and explicitly stated that he was making an as

- applied challenge

. See Complaint at 2, 5

- 7; Megraw
Motion for S ummary Judgment at 1

- 2, 8; Megraw Supplemental Motion for Summary Judgment at 6; Concise Statement of Errors Complained of in The Appeal Of The Orders Of Court Dated April 13, 2017 at 1

- 3; Pa. R.A.P. 302(a); Pa. R.A.P. 1925(b)(4)(vii). Additionally , Mr. M egraw failed to notify the Commonwealth’s Attorney General of his intent to mount a facial attack upon Section 111(f.1)(1), and in fact expressly disclaimed such a desire via a February 25, 2016 letter to then

Attorney General Kathleen Kane. School District’s Br

. , App

. ; see Kepple v. Fairman Drilling Co. , 615 A.2d 1298, 1303 (Pa. 1992) (citing Pa. R.C.P. No. 235 and Pa. R.A.P. 521) (party waives ability to mount facial challenge to constitutionality of statute if it fails to notify Attorney General o f its intent to do so). Finally, Mr. Megraw ’s attorney informed our Court during the course of oral argument that the facial challenge had been waived.
Given that Mr. Megraw ’s remaining issues pertain to his as

- applied constitutional challenge, his arguments about the irrebuttable presumption contained
in Section 111(f.1)(1) are no longer relevant. Pennsylvania law is clear that we need only analyze the constitutionality of such irrebuttable presumptions in cases where the facial constitutionality of a law has been properly challenged. Compare Johnson , 59 A.3d at 15

- 16, 20

- 25 (as

- applied constitutional challenge, with no discussion of9

irrebuttable presumption test) , with Pea ke v. Com monwealth , 132 A.3d 506 , 516

- 22 (Pa. Cmwlth. 2015) (facial constitutional ity challenge, with discussion and application of irrebuttable presumption test). Therefore, we need not address whether this irrebuttable presumption comports with the due process requirements of the Pennsylvania Constitution. B. Section 111(f.1)(1) of the Code , As Applied to Mr. Megraw , Violated His

Substantive Due Process Rights Mr. Megraw bases his claim that Section 111(f.1)(1)’s 10

- year employment
ban , as applied to him, violated his substantive due process rights upon Article I, Section 1 of the Pennsylvania Constitution. 9 Pennsylvania jurisprudence has consistently interpreted the language of this section as “guarantee[ing] an individual’s right to engage in any of th e common occupations of life.” Johnson , 59 A.3d at 21 (citations omitted). However, this right
is not “fundamental” in nature, and any law that allegedly impinges upon it is thus subject to a rational basis test. 10 Nixon v. Com monwealth , 8 39 A.2d 277, 28 7

- 88 & n.15 (Pa. 2003)

. 11

9 Article I, Section 1 of the Pennsylvania Constitut ion states that “[a]ll men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of p ursuing their own happiness.” Pa. Const. art. I, § 1

.

10 The parties do not dispute that the rational basis test applies.

11 Although the due process guarantees provided by the Pennsylvania Constitution are substantially coextensive with those provided by the Fourteenth Amendment, a more restrictive rational basis test is applied under the Pennsylvania Constitution. See [ Pa. State Bd. of Pharmacy v. Pastor , 272 A.2d 487, 490

– 91 (Pa. 1971)] (explaining that Pennsylvania courts have analyzed due process c hallenges under rational basis tests “more closely” than the United States Supreme Court). Needless to say, under the rational basis test10

For a law to be deemed constitutional under the rational basis test, it “must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.” Gambone v. Com monwealth , 101 A.2d 634, 637 (Pa. 1954). While a state may regulate a business which affects the public health, safety and welfare, it may not, through regulation, deprive an individual of his right to conduct a lawful business unless it can be shown that such deprivation is reasonably
related to the state interest sought to be protected.” Sec’y of Revenue v. John’s Vending Corp. , 309 A.2d 358, 361 (Pa. 1973). Here, the challenged statute , Section 111(f.1)(1), applies to all school employees who have any form of direct contact with children, and establishes a 10

- year ban for those who have been convicted of a first, second, or third

- degree felony. 12 Th is statute is unambiguous and does not permit any discretion on the part of the employer to consider additional information, such as the affected em ployee’s employment history, professional reputation, or the details of his personal life. This law does not require that any nexus exist between the nature of criminal behavior and the job responsibilities. If an employee’s conviction fits within the st atute’s parameters, a sch ool is required to terminate that employee

. Alt hough Johnson dealt with a separate section of the Code , interestingly,
b oth parties primarily rely on our Cour t’s holding in Johnson to support their

applied under our Constitution, deference is still given to the General Assembly in that laws are presumed constituti onal and the General Assembly therefore does not need to present evidence to sustain their constitutionality. See O’Donnell v. Casey [405 A.2d 100 6, 1009

- 10 (Pa. Cmwlth. 1979)]. Nixon , 839 A.2d at 288 n.15

. 12 Mr. Megraw never argued that, as part of his j ob with the School District, he had no such contact with children.11

respective positions. See Megraw ’s Br

. at 31

- 33; School District’s Br

. at 17

- 24. In
Johnson , Johnson’s employer, Allegheny Intermediate Unit (AIU), terminated him due to a nearly 30

- year

- old conviction for felony voluntary manslaughter , which subjected him to a lifetime employment ban u nder Section 111(e)(1) of the Code

. Johnson , 59 A.3d at 13

- 15. Johnson filed suit against AIU, seeking declaratory and injunctive relief. Id. at 15. The trial court issued a permanent injunction, reasoning
that the amended law was ex post facto in natur e and , thus , unconstitutional as applied to Johnson. Id. at 16. On appeal by the Commonwealth’s Department of
Education , we affirmed on different grounds, finding that, while this was not an ex post facto law , it did violate Johnson’s substantive due pro cess rights as applied,
since : AIU . . . [had] failed to present any rational reason that

applying the lifetime ban to Johnson served a legitimate governmental purpose . . . [and because the statute] create[d] a lifetime ban for a homicide offense that ha[ d] no temporal proximity to Johnson’s present ability to perform the duties of his position, and it [did] not bear a real and substantial relationship to the Commonwealth’s interest in protecting children[.] Id. at 17

- 25.
Johnson is part of a larger c orpus of case law, dating back to 1973, in which our appellate courts have validated both facial and as

- applied substantive due process challenges to sta tutory employment bans and other similar laws predicated upon prior convictions

. In John’s Vending
, t h e Cigarette Tax Board learned that a shareholder and former president of John’s Vending had been convicted in the 1950s of a crime of moral turpitude. 309 A.2d at 360. Consequently, the Board revoked a wholesale cigarette dealer license held by John’s Ve nding, based upon violations of Section12

403 of the Cigarette Tax Act , 13 which established a bar to holding a license where an individual or corporate officer had been convicted of such a crime, and required any applicant for such a license to disclose any c onvictions to the Board as part of the application process. Id. at 360

- 61. T his ban was not explicitly lifelong, but the statutory language effectively made it such, since the ban was conditioned upon a conviction and was not expressly limited in duratio n

. Id. at 360

- 62. We affirmed the Board, but our Supreme Court reversed us and vacated the Board’s decision, finding that there was no reasonable relationship between the ban and the governmental interest sought to be protected. Specif ically, the Supreme
Court held: [t]o interpret Section 403(2) [ of the Cigarette Tax Act ] as

a blanket prohibition barring anyone who has been convicted of a crime of moral turpitude without regard to the remoteness of thos e convictions or the individual’ s subsequent performa nce would be unreasonable. We cannot assume that the legislature intended s uch an absurd and harsh result. Id. at 362.
In Nixon , several affected employees and a nonprofit corporation challenged the constitutionality of a statutory employment ban contain ed in the Older Adults
Protective Services Act (OAPSA)

. 14 839 A.2d at 279

- 83. This law, covering employment in the field of elder care , required new applicants and those employees who had been on the job for less than a year to submit crimin al background check information, mandating that anyone whose information showed he had been
convicted of an enumerated crime be barred for life from working in that field

. Id.
at 280

- 82. O ur Supreme Court ultimately held that there was no “real and substantial

13 Act of July 22, 1970, P.L. 513, formerly 72 P.S. § 3169.403 , repealed by Section 5 of the Act of December 21, 1981, P.L. 482, 72 P.S. § 8297

.

14 Act of November 6, 1987, P.L. 381, as amended , 35 P.S. §§ 10225.101

- 10225.5102

.13

relatio nship” between the carve

- out for employees with more than a year ’s tenure and “the Commonwealth’ s interest in protecting the elderly, disabled, and infirm from victimization[.]” Id. at 289

- 90. Therefore, this ban impermissibly infringed upon the employees’ substantive due process rights and was unconstitutional as applied to them

. Id. at 289.
In Warren C ounty Human Serv ices v. State Civil Service Commissio n (Roberts) , 844 A.2d 70 (Pa. Cmwlth. 2004), Roberts was hired by Warren County
to be a case worker, but was terminated shortly thereafter, pursuant to a lifetime employment ban mandated by the Child Protective Services Law (CPSL), 23 Pa. C.S. § § 6301

- 6386 , when his employer learned he had been convicted in 1980 of aggravated assault. Warren , 844 A.2d at 71

- 72. He appealed this decision to the State Civil Service Commission, which found in his favor and

declined to apply the life

- time criminal history ban in Section 6344(c) of the CPSL because it found that it violated Article I, Section 1 of the Pennsylvania Constitution by providing “a per se life

- time prohibition to employment without considering the individual's present or past ability . . . to perform the duties of the position.” . . . Because Warren County’s removal of Roberts was based solely on the CPSL, the Commission reversed Warren County’s decision to terminate Roberts for failing to present evidence establishing just cause for Roberts’ removal. Id. at 72. Warren County appealed this decision, and we affirmed the Commission for

two reasons: First , “the CPSL fails to satisfy the rational basis test. Section 6344(c) prohibits the hiring of applicants previously convicted of certain enumerated crimes; however, it does not ban existing employees from continuing to work in the child

car e field, despite having a similar conviction.” Id. at 74. Second,14 the CPSL’s lifetime ban of previously convicted applicants from employment in child

- care is unconstitutional [because it] . . . ‘runs afoul of the deeply ingrained public policy of this St ate to avoid unwarranted stigmatization of and unreasonable restrictions upon former offenders.’ John’s Vending
, . . . 309 A.2d at 362

. . . . Because Section 6344(c), as it relates to aggravated assault, creates limitations that have no temporal proximity to the time of hiring, it does not bear a real and substantial relationship to the Commonwealth’s i nterest in protecting children[.] Id

. In two related cases, Croll v. Harrisburg School Dist rict , (Pa. Cmwlth. , No. 210 M.D. 2012, filed December 13, 2012) , 2012 WL 8668130 , and Jones v. Penn
Delco School Dist rict , (Pa. Cmwlth. , No. 294 M.D. 2012 , filed December 13, 2012) , 2012 WL 8668277, 15 a bus driver, a school custodian, and a teacher challenged the

as

- applied constitutionality of lifetime employment bans imposed upon them due to previous convictions for decades

- old convictions and the requirements of the Code.
Croll , slip op. at 1

- 8, 20 12 WL 8668130 at *1

- *2; Jones , slip op. at 1

- 7, 2012 WL
8668277 at *1

- *2. The Commonwealth’s Department of Education intervened in these matters, successfully petitioned to have them transferred to our Court, and then filed preliminary objections to each lawsuit, which we overruled as to plaintiffs’ substantive due process claims. Croll , slip op. at 9

- 20, 2012 WL 8668130 at *2

- *7;
Jones , slip op. at 8

- 19, 2012 WL 8668277 at *2

- *7. I n each case , we found that the statutory lifetime employment ban “ has no temporal proximity to [the plaintiffs’] present abili ty to perform the duties of [their jobs] , and . . . does not bear a real and
substantial r elationship to the Commonwealth’ s interest in protecting children,

15 See Commonwealth Court Internal Operating Procedure 414 (a) , 210 Pa. Code § 69.414 (a) (unreported Commonwealth Court opinions issued after January 15, 2008 may be cited for their persuasive value )

.15

[meaning] it is unreasonable, unduly oppressiv e and patently beyond the necessities
of the offense. ” Croll , slip op. at 20, 2012 WL 8668130 at *7; Jones , slip op. at 19,
2012 WL 8668277 at *7. On that basis, we held that, as applied, the Code’s lifetime
bans were “unconstitutional as violative of [plaintiffs’] substantive due process rights as guaranteed by Article 1, Section 1 of the Pennsylvania Constitution.” Croll , slip op. at 20, 2012 WL 8668130 at *7; Jones , 2012 WL 8668277 at *7 , slip op. at
19

. Finally, in Peake , five individuals and a non

- profit social service s agency challenged the same OAPSA lifetime employment ban that had been addressed in
Nixon , arguing that the ban was both unconstitutional on a facial basis and as applied
to them. 132 A. 3 d at 509

. W e found in favor of the se petitioner s, ruling that the

statut e was facially unconstitutional for two reasons: First, it included a grandfather clause exempting those who had been employed in elder care positions as of July 1, 1998, but no such exemption for those wh ose empl oyment s tarted later

. Id. at 521. Second, the ban was based upon an irrebuttable presumption that was impermissible
under the three

- prong test articulated by our Supreme Court in Dep artment of Transportation , Bureau of Driver Licensing v. Clayton , 684 A.2d 1060 (Pa. 1996).
Peake , 132 A.3d at 521

- 22. In making this determination in Peake , we reasoned that : [OAPSA]

- covered facilities should not be required to employ a person with a criminal record, but they should have the opportunity to assess the situation an d exercise their discretion to employ an applicant found to be sufficiently rehabilit ated and a good fit for the job . . . [OAPSA] must be “fine

- tuned” to relate the particular criminal conviction to particular employment. [OAPSA’s] current blanket prohibi tion lacks fine

- tuning because it treats all the enumerated crimes, regardless of their vintage or severity, as the same even though they present very different risks of employment.16

Id. at 522. 16 The nature of the statute challenged in Johnson , as well as these other cases, can be distinguished from Section 111(f.1)(1) , in that those other statutes imposed lifelong bans, rather t han an employment ban of a fixed duration, like the statute in the instant matter. In that regard, the instant appeal presents a matter of first impression, namely, whether a time

- limited employment ban resulting from a criminal conviction violates an individual’s substantive due process rights under the Pennsylvania Constitution. However, the right affected by Section 111(f.1)(1) , namely employment in one’s desired field , as well as the predication of this statute’s employment ban upon previous convictions , are not so distinguishable. Thus, while the particulars of this matter are unique, these cases still serve to define the contours of our analysis.
Th e above

- cited case law reveals the inherent tension which exists between general principles of statutory interpretation and how our appellate courts have

a pplied the rational basis test, in the context of statutory employment ba ns predicated upon previous criminal convictions. The General Assembly has declared “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Section 1921 (b) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921 (b)

. In addition, it is well

settled that: [o]ur law provides a strong presumpt ion that legislative

enactments . . . do not violate our Constitution. Pennsylvanians Against Gambling Expansion Fu nd, Inc. v. Commonwealth , 583 Pa. 275 , 292, 877 A.2d 383, 393 (2005) . . . A party that challenges the constitutionality of

16 We also held that the statute was unconstitutional as applied, noting that all of the petitioners’ convictions were 15 to 34 years old and that their criminal records had been clean ever since their long

- ago convictions. Peake , 132 A.3d at 522.17 a statute bears “a very heavy burden of persuasion” to overcome this presumption. Id. “Accordingly, a statute will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution. All doubts are to be resolved in favor of finding that the legislative enactment passes constitutional muster.” Id. (Emphasis in original.) (Citations omitted). Barrel of Monkeys, LLC v. Allegheny Cty. , 39 A.3d 559, 563

– 64 (Pa. Cmwlth. 2012). Even so, our Supreme Court has held:

[i]n order to avoid an absurd and harsh result, a court may look beyond the strict letter of the law to interpret a statute according to its r eason and spirit and accomplish the object intended by the Legislature. To interpret [a law as mandating] . . . a blanket prohibition barring anyone wh o has been convicted of a crime . . . without regard to the remoteness of those convictions or the indiv idual’s subsequent performance would be unreasonable. John’s Vending , 309 A.2d at 362 (citations omitted). Con sequently, as shown by the aforementioned cases, such statutory employment bans have been repeatedly
deemed facially unconstitutional , or uncons titutional as

- applied on substantive due process grounds, either because the challenged statute itself does not permit contemplation of such evidence and sweeps too broadly , or the evidence in a specific
situation does not establish a reasonable basis for imposing a severe sanction like the loss of one’s job. Applying this precedent to the instant manner, as stated earlier, Mr. Megra w asserts that the challenged 10

- year employment ban, as applied to him, violated his substantive due process rights because there is no correlation or evidence that his
2009 conviction impact s his current or prospective ability to properly perform his grounds keeping duties. Megraw’s Br. at 30

- 38. Mr. Megra w further alleges that the Trial Court erred in considering his prior disciplinary history since the School District’s sole witness specifically admitted that Mr. Megra w’s 2009 felony18

conviction was the only reason Mr. Megra w was fired. Id. at 38

- 45. F in ally, Mr. Megra w argues that the Trial Court also abused its discretion by determining that Mr. Megraw’s termination was warranted, because Mr. Megraw’s repeated
assertions that he had believed his ex

- wife had dropped the PFAO showed him to be

a dishonest person. Id. at 45

- 46.
T he School District counters Mr. Megraw ’s claims of as

- applied unconstitutionality by arguing the statute does not impose a lifetime ban, meaning
his case is thus distinguishable from Johnson

. School District’s Br. at 17

- 18. It next opine s the gap in time between Mr. Megraw ’s criminal activity and his subsequent termination ( 7 years , 8 months ) is far closer than those in Johnson (30 years). Id. Third, the School District raises concerns about Mr. Megraw ’s 2009 conviction, an d his subsequent disavowals that he was guilty. The School District asserts that
because Mr. Megraw has backtracked on his admissions in his guilty plea, this
render s him too untrust worthy to carry out his grounds keeping duties, and implicates
the School District’s interest in having honest employees. Id. at 18

- 20. Finally, the
School District maintains that Mr. Megraw ’s post

- conviction disciplinary record shows that his conviction was part, and predictive, of a larger pattern of bad
behavior. Id. at 20

- 21. However, these responses by the School District fail to establish a rational
basis for applying Section 111(f.1)(1)’s 10

- year ban to Mr. Megraw by virtue of his
2009 conviction

. While both a statutory employment ban’s duration and the length of time between conviction and sanction are important elements of an inquiry into such a ban’ s constitutionality, the law does not permit these factors to be assessed in a
mechanical fashion to determine whether a ban passes muster

. Both th e 10

- yea r ban,19

as well as the 7

- year, 8

- month gap between the activity which gave rise to Mr. Megraw’s criminal conviction and his subsequent firing, represent significant lengths of time, which must be treated as such when assessing the ban’s as

- applied
constitut ionality. See Ake v. Bureau of Professional and Occupational Affairs , 974 A.2d 514, 520 (Pa. Cmwlth. 2009) ( “[T]he nature of the offending conduct and its remoteness in time must be considered where an agency seeks to revoke a professional license on the basis of a conviction. . . . [S]even years [between the offending conduct and license revocation] is a substantial interval of time.”). As it relates to “dishonesty
, ” the School District, like any employer, clearly
has a vested interest in ensuring its employees are honest

. H owever, a fired employee’s untruthfulness can only supply the rational basis for a pplying a statutory employment ban where the dissembling has , or has had, a tangible and direct effect upon his job performance. See John’s Vending
, 309 A.2d at 362 (an individual’s convictions for crimes of moral turpitude cannot justify license revocation, where the convictions do not implicate his “present ability to properly discharge the responsibilities required by [his] position.”; id

. at 19

- 20 ( general interest in employees’ character and moral fitness does not create rational basis for statutorily mandated firing)

. Here, it would take a significant leap of logic , in support of which
the School District offers no evidence , to affirmatively link Mr. Megraw’s decision
to disavow his guilty plea with his ability to diligently, faithfully, and honestly mow lawns and trim bushes at the School District’s behest.
Nor does Mr. Megraw’s prior history of disciplinary issues create a suitable justi fication for imposing the 10

- year ban upon him

. Indeed, Ms. Lynn David, the
School Distric t’s Director of Human Resources and the School District’s only witness presented via her prior deposition testimony, specifically tes tified that Mr.20

Megraw was fired solely because Section 111(f.1)(1) required such action by the
School District due to his felony conviction and agreed that, were it not for this law,
the School District would not have terminated Mr. Megraw : 17

[ MR. HERRING ] [Mr. Megraw ’s atto rney]: Okay. And now that you learned that he has this F

-- I’m going to call it F3

-- F3 related to the firearm, what do you then do? [ MS. DAVID ] : Contact counsel. [ MR. HERRING ] : Okay. And don’t tell me what counsel said. But as a result of your contact w ith counsel, we can agree that a decision was made to terminate Mr. Megraw? [ MS. DAVID ] : Correct. [ MR. HERRING ] : Okay. And the termination decision was based on the fact that he had the F3 conviction in his background? [ MS. DAVID ] : Correct

-- [ MR. HERRING ] : Okay. [ MS. DAVID ] :

-- as it relates to that law. [ MR. HERRING ] : As it relates to the changes in the School Code? [ MS. DAVID ] : Correct. [ MR. HERRING ] : And the changes in the School Code create a bar of employment for anyone that has an F3 conviction? [ MS. DAVID ] : It has a span of time during which, after the conviction, the individual may not be employed by the School District... [ MR. HERRING ] : [T]he School Code requires as written that there’s a bar of employment for ten years after that, correct, as you read it? [ MS. DAVID ] : I would not rely on my reading of it. [ MR. HERRING ] : How about counsel’s? [ MS. DAVID ] : Yes. I would rely on counsel’s reading of it. [ MR. HERRING ] : And that’s why the termination took place, because the bar had not ended?

17 It is important to note that , pursuant to Section 111(g) of the Code , the School District faced the threat of civil penalties if it did not fire Mr. Megraw upon learning of his felony conviction, as required by Section 111(f.1)(1).21 [ MS. DAVID ] : Correct. [ MR. HERRING ] : And we can agree, but for the conviction and the bar, the School District would not have terminated Mr. Megraw? But for the conviction and the bar, there would not have been a termination action? [ MS. DAVID ] : Not at that time, no

. [ MR. HERRING ] : Correct, or as we sit here today, there was no intent to terminate him for any reason at that time? [ MS. DAVID ] : Correct.

David Dep. , 5/2/16 at 9

- 12

.

T h us, the School District cannot defend the constitutionality of Mr. Megraw’s termination by referring to prior deficiencies in his employment history that would not have otherwise resulted in the loss of his job. See Johnson , 59 A.3d at 24

- 25 (employer’s admission that employee would not have been fired absent statutorily
mandated employment ban shows “ that his [temporally] remote conviction does not reflect upon his present abilities to perform the duties of his position .”).
F inally, to support its decision to terminate Mr. Megra w, the School District maintains that Mr. Megraw’s post

- conviction disciplinary record shows that his conviction was part, and predictive, of a larger pattern of bad behavior. Even if we were to disregard the fact that the School District offered no evidence whatsoever to support such a bald and broad as sertion, this argument also fails for the same reason that Mr. Megra w’s prior disciplinary record is not a relevant consideration

. Therefore, as the School District has failed to articulate a ny rational basis for how imposing the 10

- year employment ban upon Mr. Megraw furthers a legitimate governmental interest, we hold that Section 111(f.1)(1), as applied, violated Mr. Megraw’s substantive due process rights under Article I, Section 1 of the Pennsylvania Constituti on

. Accordingly, we reverse the Trial Court’s orders22

denying summary judgment to Mr. Megraw and granting summary judgment in
favor of the School District

.

________________________ ELLEN CEISLER, Judg eIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Patrick Megraw, :

Appellant :

: v. : No. 577 C.D. 2017
: School District of Cheltenham : Township :

O R D E R

AND NOW, this 1 st day of May , 201 8 , the order s of the Court of Comm on Pleas of Montgomery County, dated April 13, 2017, are hereby REVERSED

.

________________________ ELLEN CEISLER, Judge