1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-14-1998

Larsen v. Senate of The Commonwealth

Precedential or Non-Precedential:

Docket 97-7153

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Recommended Citation

"Larsen v. Senate of The Commonwealth" (1998). 1998 Decisions. Paper 195.

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CORRECTED OPINION 

Filed August 11, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-7153 

ROLF LARSEN 

v. 

SENATE OF THE COMMONWEALTH OF PENNSYLVANIA; 

ROY C. AFFLERBACH; ANTHONY B. ANDREZESKI; 

GIBSON E. ARMSTRONG; EARL BAKER; ALBERT V. 

BELAN; CLARENCE D. BELL; LEONARD J. BODACK; 

MICHAEL E. BORTNER; DAVID J. BRIGHTBILL; 

J. DOYLE CORMAN; MICHAEL M. DAWIDA; MICHAEL 

 B. 

FISHER; VINCENT J. FUMO; STEWART J. GREENLEAF; 

MELISSA A. HART; DAVID W. HECKLER; EDWARD W. 

HELFRICK; EDWIN G. HOLL; ROXANNE H. JONES; 

ROBERT C. JUBELIRER; GERALD J. LAVALLE; 

CHARLES D. LEMMOND, JR.; H. CRAIG LEWIS; 

J. WILLIAM LINCOLN; F. JOSEPH LOEPER; ROGER 

 A. 

MADIGAN; BRUCE S. MARKS; ROBERT J. MELLOW; 

HAROLD F. MOWERY, JR.; RAPHAEL J. MUSTO; 

MICHAEL A. O'PAKE; FRANK A. PECORA; JOHN E. 

PETERSON; EUGENE E. PORTERFIELD; TERRY L. PUNT; 

JEANETTE F. REIBMAN; JAMES J. RHOADES; 

ROBERT D. ROBBINS; FRANK A. SALVATORE; 

ALLYSON Y. SCHWARTZ; TIM SHAFFER; JOHN J. 

SHUMAKER; PATRICK J. STAPLETON, WILLIAM J. 

STEWART; J. BARRY STOUT; RICHARD TILGHMAN; JACK 

WAGNER; NOAH W. WENGER; HARDY WILLIAMS; 

SUPREME COURT OF PENNSYLVANIA; ROBERT NIX; 

JOHN FLAHERTY; STEPHEN ZAPPALA; NICHOLAS 

PAPADAKOS; RALPH CAPPY; FRANK MONTEMURO; 

RONALD CASTILLE; COMMONWEALTH OF 

PENNSYLVANIA COURT OF JUDICIAL DISCIPLINE; 

JOSEPH F. MCCLOSKEY; WILLIAM F. BURNS; 
DAWSON R. MUTH; PETER DEPAUL; CAROL K. 

MCGINLEY, CHRISTINE L. DONOHUE; JUSTIN M. 

JOHNSON; WILLIAM CASSENBAUM; JUDICIAL CONDUCT 

BOARD; JOSEPH A. DEL SOLE; ARTHUR J. EDMUNDS 

 ; 

DIANE M. EDMUNDSON; GERALD P. EGAN; JOHN W. 

HERRON; FREDERICK WELLS HILL; MATTHEW ANITA 

MACDONALD; GERALD J. O'CONNOR; ANDREW PALM; 

CHARLES W. RUBENDALL, II; JAMES E. RUSSO, 

BERNARD C. WATSON; WILLIAM J. ARBUCKLE, III; 

BRUCE A. ANTKOWIAK; THOMAS A. BERGSTROM; 

ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS*; 

NANCY M. SOBOLEVITCH; DAVID A. FRANKFORTER, in 

their official and individual capacities; 

INDIVIDUAL SENATORS 

 Chief Justice Robert N.C. Nix 

 (retired), Chief Justice John 

 Flaherty, Associate Justices 

 Stephen Zappala, Nicholas 

 Papadakos, Ralph Cappy and 

 Ronald Castille, and Judge Frank 

 Montemuro, *The Administrative 

 Office of Pennsylvania Courts, 

 Nancy M. Sobolevitch and David A. 

 Frankforter, 

 Appellants 

*Dismissed pursuant to Clerk order dated 6/27/97 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(No. 95-CV-01540) 

Argued May 19, 1998 

BEFORE: SLOVITER, GREENBERG, and GIBSON,* 

Circuit Judges 

_________________________________________________________________ 

*Honorable John R. Gibson, Senior Judge of the United States Court of 

Appeals for the Eighth Circuit, sitting by designation. 

 2 
(Filed: August 11, 1998) 

 Arlin M. Adams (argued) 

 Joseph T. Lukens 

 Michael J. Barry 

 Schnader, Harrison, Segal & 

 Lewis, L.L.P. 

 1600 Market Street, Suite 3600 

 Philadelphia, PA 19103 

 Attorneys for Appellants 

 Individual Justices of the 

 Supreme Court of Pennsylvania 

 Arthur G. Raynes 

 Harold I. Goodman 

 Stephen E. Raynes 

 Raynes, McCarty, Binder Ross & 

 Mundy 

 1845 Walnut Street, Suite 2000 

 Philadelphia, PA 19103 

 Attorneys for Appellants 

 Individual Administrative Office 

 Defendants 

 Cletus P. Lyman (argued) 

 Michael S. Fettner 

 Lyman & Ash 

 1612 Latimer Street 

 Philadelphia, PA 19103 

 Attorneys for Appellee Rolf Larsen 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

Appellants, present and former justices and court 

administrators of the Supreme Court of Pennsylvania, 

 3 
appeal from the district court's February 28, 1997 order 

denying their motion to dismiss appellee Rolf Larsen's 

claims against them on qualified immunity grounds. The 

district court had jurisdiction over Larsen's claims 

pursuant to 28 U.S.C. S 1331 and 28 U.S.C.S 1343 as

Larsen states his claims under 42 U.S.C. S 1983 and 42 

U.S.C. S 300bb. Jurisdiction over this appeal from a denial 

of qualified immunity rests on 28 U.S.C. S 1291 pursuant 

to the collateral order doctrine. See Mitchell v. Forsyth, 472 

U.S. 511, 530, 105 S.Ct. 2806, 2817 (1985). For the

reasons that follow, we will affirm in part and reverse in 

part the district court's denial of qualified immunity and 

will remand the case to the district court for further 

proceedings. 

II. FACTUAL AND PROCEDURAL HISTORY 

This case arises from appellants' June 1994 decision to 

terminate the medical insurance benefits of appellee Rolf 

Larsen, a former justice of the Supreme Court of 

Pennsylvania, following his conviction on felony charges in 

the Allegheny County Court of Common Pleas and his 

suspension from office pursuant to an order of the 

Pennsylvania Court of Judicial Discipline. In November 

1977, Larsen was elected to a ten-year term on the 

Pennsylvania Supreme Court beginning in January 1978. 

In November 1987, Larsen won a retention election for a 

second ten-year term beginning in January 1988. On 

December 12, 1989, toward the end of Larsen's 12th year 

as a Supreme Court justice, the Supreme Court adopted a 

benefits plan which provided lifetime medical insurance 

benefits for retired judges with ten or more years of judicial 

service, regardless of their age. See app. at 93. 

On July 17, 1991, the Pennsylvania Judicial Inquiry

Review Board ("JIRB"), following an investigation into 

allegations of misconduct, reported to the Pennsylvania 

Supreme Court that Larsen had created an appearance of 

impropriety by engaging in ex parte communications with a 

trial judge in a pending case. The JIRB recommended that 

Larsen be reprimanded publicly. See app. at 72. On 

October 14, 1992, the Supreme Court, acting through a 

panel of three justices, adopted the JIRB's recommendation 

 4 
and issued an order publicly reprimanding Larsen. See In 

re Larsen, 616 A.2d 529 (Pa. 1992). Justices Zappala and 

Cappy voted in favor of the order while Justice Papadakos 

dissented. 

On November 24, 1992, Larsen filed a petition before the 

Supreme Court seeking the disqualification and recusal of 

Justices Zappala and Cappy on the grounds that these 

justices, together with Chief Justice Nix and other

individuals, had engaged in various forms of misconduct 

involving ex parte communications, kickbacks, partiality 

toward litigants and interference in pending cases. See app. 

at 72-73; 769. A grand jury then commenced a nine-month 

investigation into Larsen's accusations and on November 5, 

1993, released a report stating that it had found evidence 

of further wrongdoing by Larsen.1 The grand jury reported 

that Larsen had maintained a list of petitions for allowance 

of appeal to be afforded special handling by his staff and 

had obtained prescription tranquilizers for his own use by 

causing a physician to issue prescriptions in the names of 

members of his judicial staff. See app. at 76. 

The Attorney General of Pennsylvania, acting on a 

presentment issued by the grand jury on October 22, 1993, 

brought criminal charges against Larsen relating to his 

unlawful acquisition of prescription medications. By order 

dated October 28, 1993, the Supreme Court relieved Larsen 

of all judicial and administrative duties as a justice, but did 

not suspend his pay. See app. at 76. 

On November 23, 1993, the Pennsylvania House of 

Representatives adopted House Resolution Number 205

authorizing its judiciary committee to investigate Larsen. 

See app. at 77. That investigation culminated in a writ of 

impeachment summons which eventually resulted in 

Larsen's conviction on October 4, 1994. See app. at 790. 

Larsen has brought claims challenging various aspects of 

_________________________________________________________________ 

1. While the 1992 grand jury reported no evidence to substantiate 

Larsen's accusations against the other justices, the United States 

District Court for the Eastern District of Pennsylvania later found that 

Chief Justice Nix had interfered substantially in a pending criminal case. 

See Yohn v. Love, 887 F. Supp. 773 (E.D. Pa. 1995), aff 'd in relevant 

part, 76 F.3d 508 (3d Cir. 1996). 

 5 
the impeachment proceedings. Those claims are the subject 

of separate appeals before this court and thus we do not 

address them in this opinion. 

On April 9, 1994, after a five-day trial before the Court of 

Common Pleas of Allegheny County, a jury convicted 

Larsen of two counts of felony conspiracy for unlawful 

procurement of controlled substances. See app. at 77.2 On 

June 3, 1994, the Pennsylvania Court of Judicial Discipline 

suspended Larsen from office without pay based on Article 

V, S 18(d)(2) of the Pennsylvania Constitution, which 

authorizes orders "directing the suspension, with or without 

pay, of any justice, judge or justice of the peace .. . against 

whom has been filed an indictment or information charging 

a felony." See In re Larsen, 655 A.2d 239 (Pa. Ct. Judic. 

Disc. 1994). 

The Court of Common Pleas sentenced Larsen on June 

13, 1994, and as part of its sentence removed Larsen from 

judicial office pursuant to Article VI, S 7 of the Pennsylvania 

Constitution, which provides that, "[a]ll civil officers shall 

hold their offices on the condition that they behave 

themselves well while in office, and shall be removed on 

conviction of misbehavior in office or of any infamous 

crime." See Larsen v. Senate of Pennsylvania , 646 A.2d 

694, 697 (Pa. Commw. Ct. 1994). 

In a letter dated June 17, 1994, David A. Frankforter, 

Human Resources Manager for the Court Administrator of 

Pennsylvania, acting on behalf of Court Administrator 

Nancy Sobolevitch and the justices of the Pennsylvania 

Supreme Court, notified Larsen that he was ineligible to 

receive retirement medical benefits as of June 3, 1994, the 

date of the Court of Judicial Discipline order suspending 

Larsen without pay. See app. at 94. 

Until 1993, the Pennsylvania Constitution contained a 

provision mandating that, "[n]o compensation shall be paid 

to any justice, judge or justice of the peace who is 

suspended or removed from office. . . ." Pa. Const. art. V, 

_________________________________________________________________ 

2. Larsen contended that the prescription tranquilizers were medically 

necessary and that he had them prescribed in the names of third parties 

to protect his privacy. 

 6 
S 16(b). In a 1992 decision, the Pennsylvania Supreme 

Court, analyzing the language and history of that provision, 

held that its denial of "compensation" to suspended or 

removed judges did not encompass retirement benefits. 

Thus, the court held that judges who had been removed 

from office for misconduct could not be denied retirement 

benefits based on that provision. See Glancey v. State 

Retirement Bd., 610 A.2d 15, 22-23 (Pa. 1992). 

In 1993, section 16 was amended to provide that, 

"[e]xcept as provided by law, no salary, retirement benefit or 

other compensation, present or deferred, shall be paid to 

any justice, judge or justice of the peace who . . . is 

suspended, removed or barred from holding judicial office." 

Pa. Const. art. V, S 16(b). Therefore, in contrast to the prior 

version of section 16(b) which addressed only 

"compensation," the 1993 version explicitly encompassed 

retirement benefits and other forms of deferred 

compensation and provided for the denial of such benefits 

upon removal. 

Larsen commenced this action on September 13, 1995,

by filing a complaint in the United States District Court for 

the Middle District of Pennsylvania under 42 U.S.C.S 1983 

which, insofar as material to this opinion, alleged that 

appellants' June 17, 1994 decision to terminate his medical 

benefits violated his rights under the Impairment of 

Contracts Clause, U.S. Const. Art. I, S 10, the Due Process 

and Equal Protection Clauses, U.S. Const. amend. XIV, S 1, 

the First Amendment, U.S. Const. amend. I, and the Public 

Health Services Act, 42 U.S.C. SS 300bb-1 et seq. 

Appellants moved to dismiss Larsen's claims on the 

grounds that his complaint failed to state a claim on which 

relief could be granted and that his claims were barred by 

the doctrine of qualified immunity. In an opinion and order 

dated February 28, 1997, the district court denied 

appellants' assertion of qualified immunity. See Larsen v. 

Senate of the Commonwealth of Pennsylvania, 955 F. Supp. 

1549, 1580 n.31 (M.D. Pa. 1997). Appellants filed a timely 

notice of appeal on March 27, 1997.3 

_________________________________________________________________ 

3. By orders dated June 18, 1997, and September 30, 1997, this appeal 

was consolidated with, respectively, the appeals in numbers 97-7296 

and 97-7451 which concern Larsen's challenge to his impeachment. This 

opinion, however, concerns only the appeal in number 97-7153. 

 7 
III. DISCUSSION 

A. Clearly Established Rights 

Initially we set forth the framework for our analysis. In 

Seigert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793 

(1991), the Supreme Court explained that when a qualified 

immunity defense is raised a court first should determine 

whether the plaintiff has asserted a violation of a

constitutional right at all. Only if that question is answered 

affirmatively need the court determine whether the 

defendant is entitled to qualified immunity on the grounds 

that his conduct did "not violate clearly established 

statutory or constitutional rights of which a reasonable 

person would have known." Harlow v. Fitzgerald, 457 U.S. 

800, 818, 102 S.Ct. 2727, 2738 (1982). The Court recently 

reaffirmed this principle in County of Sacramento v. Lewis, 

118 S.Ct. 1708, 1714 n.5 (1998). In this case we largely 

focus on the second question because we are satisfied that 

except with respect to the equal protection of the law and 

the Public Health Services Act claims Larsen adequately 

asserted a violation of his constitutional rights. 

In considering the second question we recognize that 

qualified immunity is from suit as well as from liability, so 

that "[u]nless the plaintiff 's allegations state a claim of 

violation of clearly established law, a defendant pleading 

qualified immunity is entitled to dismissal before the 

commencement of discovery." Mitchell, 472 U.S. at 526, 105 

S.Ct. at 2815. For purposes of this appeal from the district 

court's denial of qualified immunity based upon the

pleadings, we must accept Larsen's allegations as true and 

afford him the benefit of all reasonable inferences. See Nami 

v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Appellants' 

entitlement to qualified immunity under these standards is 

a question of law subject to plenary review. See Pro v. 

Donatucci, 81 F.3d 1283, 1285 (3d Cir. 1996); Giuffre v. 

Bissell, 31 F.3d 1241, 1247 (3d Cir. 1994). 4 

_________________________________________________________________ 

4. The district court addressed the qualified immunity issue as follows: 

 [appellants'] arguments in support of qualified immunity are 

limited 

 to the same arguments they assert in support of the outright 

 8 
A right is "clearly established" for qualified immunity 

purposes only if "[t]he contours of the right" are "sufficiently 

clear that a reasonable official would understand that what 

he is doing violates that right." Anderson v. Creighton, 483 

U.S. 635, 640, 107 S.Ct. 3034, 3039 (1982). Thus, 

defendants are entitled to qualified immunity if"reasonable 

officials in [their] position at the relevant time could have 

believed, in light of what was in the decided case law, that 

their conduct would be lawful." In re City of Philadelphia 

Litig., 49 F.3d 945, 961 n.14 (3d Cir. 1995). Even where 

officials "clearly should have been aware of the governing 

legal principles, they are nevertheless entitled to immunity 

if based on the information available to them they could 

have believed their conduct would be consistent with those 

principles." Acierno v. Cloutier, 40 F.3d 597, 620 (3d Cir. 

1994) (citations and internal quotations marks omitted). 

However, for reasonable officials to be on notice that their 

conduct would be unlawful, there need not be "a previous 

precedent directly on point." Acierno, 40 F.3d at 620; accord 

Anderson, 483 U.S. at 640, 107 S.Ct. 3039 (holding that 

the "clearly established" standard does not require that "the 

very action in question has previously been held unlawful"). 

Rather, there need only be "some but not precise factual 

correspondence between relevant precedents and the 

conduct at issue," Pro, 81 F.3d at 1292 (citations and 

internal quotation marks omitted), so that "in the light of 

pre-existing law the unlawfulness [would be] apparent." 

Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. We must 

_________________________________________________________________ 

 dismissal of Larsen's claims. As the court has determined that 

these 

 arguments provide no basis upon which to dismiss Larsen's . . . 

 claims, they also provide no basis upon which to afford 

[appellants] 

 immunity from suit in their personal capacities. 

Larsen, 955 F. Supp. at 1580 n.31. Thus the court did not distinguish 

the issue of whether the complaint alleged viable claims for purposes of 

Federal Rule of Civil Procedure 12(b)(6) from the issue of whether it 

alleged violations of clearly established rights within the meaning of the 

qualified immunity doctrine. Our analysis largely turns on a de novo 

inquiry as to the latter issue, see Mitchell, 472 U.S. at 526, 105 S.Ct. 

at 

2815, as we are satisfied that for the most part Larsen adequately has 

asserted a violation of his constitutional rights. 

 9 
determine, in light of these principles, whether Larsen 

alleges violations of clearly established rights. 5

B. Impairment of Contracts Clause 

Appellants contend that the district court erred in

denying them qualified immunity as to Larsen's claim that 

termination of his benefits violated his rights under the 

Impairment of Contracts Clause, which provides that"[n]o 

state shall . . . pass any . . . Law impairing the Obligation 

of Contracts." U.S. Const. art. I, S 10. According to 

appellants, Larsen's right to receive those benefits following 

his removal from office was not clearly established, since 

reasonable officials could have believed either that Larsen 

was not eligible for benefits under the terms of the benefits 

plan, or that Larsen, even if otherwise eligible for benefits, 

lawfully could be denied those benefits pursuant to the 

1993 version of Article V, section 16, of the Pennsylvania 

Constitution which precludes payment of benefits to

justices who have been removed from office. 

1. Eligibility Under the Retirement Benefits Pla n 

Appellants contend that Larsen fails to allege a clearly 

established right to receive retirement medical benefits 

because, according to his complaint, the plan conferring 

the right to those benefits applied only to "retired" members 

of the judiciary. Thus, appellants argue, a reasonable 

official "would have been justified in concluding that Larsen 

was not covered" by the terms of the benefits plan since he 

_________________________________________________________________ 

5. Larsen, br. at 14, contends that the doctrine of qualified immunity is 

inapplicable because appellants' revocation of his medical benefits 

involved "a ministerial, non-discretionary act." See People of Three Mile 

Island v. Nuclear Regulatory Comm'rs, 747 F.2d 139, 143 (3d Cir. 1984). 

We disagree. As the Supreme Court recognized in Davis v. Scherer, 468 

U.S. 183, 195 n.14, 104 S.Ct. 3012, 3020 n.14 (1984), officials must 

make discretionary determinations even in the course of applying facially 

clear provisions. Because appellants' decision to deny Larsen's benefits 

required such discretionary determinations, including legal analysis as 

to the applicability of the 1993 version of section 16(b), it cannot be 

characterized as a ministerial act outside the scope of the qualified 

immunity doctrine. 

 10 
had been removed from office and had not "retired" 

voluntarily. Br. at 12. We disagree. As of the time

appellants decided to deny Larsen's benefits, the 

Pennsylvania Supreme Court had held that judicial officers 

who had been removed from office for misconduct were 

entitled to receive benefits under a plan which by its terms 

applied to "retired" judicial officers. In upholding removed 

judges' right to receive "retirement" benefits, the

Pennsylvania Supreme Court did not find it significant that 

those judges had not "retired" voluntarily from office. 

Rather, the court treated them as fully eligible under the 

retirement plan and proceeded to analyze whether a 

separate provision of law precluded them from receiving 

those benefits to which they were entitled under the plan. 

See Glancey, 610 A.2d at 22-23.6 The decision in Glancey 

forecloses appellants' argument that officials charged with 

administering a retirement benefits plan reasonably could 

construe the terms of that plan narrowly to exclude

removed judges from coverage when the Pennsylvania 

Supreme Court had included such individuals in the terms 

of eligibility.7 

In light of this case law including individuals such as 

Larsen within the terms of eligibility for retirement benefits, 

and in the absence of any authority for excluding 

individuals from eligibility under a retirement plan on the 

_________________________________________________________________ 

6. Glancey resolved the cases of several different judges, some of whom 

were removed while still in office and others of whom were not issued 

removal orders until after they had resigned or retired. The court treated 

those judges identically in terms of their eligibility for benefits under 

the 

retirement plan. See 610 A.2d at 22-23. 

7. The Pennsylvania Supreme Court had reached similar results in cases 

involving "retirement" plans for elected officials and public employees, 

upholding the eligibility under such plans of individuals who did not 

retire voluntarily. See Bellomini v. State Retirement Bd., 445 A.2d 737, 

741 (Pa. 1982) (holding that legislators who resigned under pressure at 

about the time of their criminal convictions were entitled to "retirement" 

benefits); Harvey v. Retirement Bd. of Allegheny County, 141 A.2d 197, 

203 (Pa. 1958) (holding that public employee who had been dismissed for 

cause was entitled to "retirement" benefits); Wright v. Retirement Bd. of 

Allegheny County, 134 A.2d 231, 233-34 (Pa. 1957) (holding that public 

employee who had been separated involuntarily from employment was 

entitled to "retirement" benefits). 

 11 
grounds that they were involuntarily removed from office, 

we find that it was clearly established that Larsen could not 

be disqualified from receiving benefits under the terms of 

the benefits plan. Accordingly, we must consider whether 

appellants are entitled to qualified immunity on the 

grounds that they reasonably could have believed that 

Article V, section 16, as amended in 1993, operated to 

divest Larsen of benefits which he otherwise would have 

been eligible to receive. 

2. Divestiture of Benefits Pursuant to Section 1 6 

Appellants contend that they are entitled to qualified 

immunity because a reasonable official could have believed 

that their revocation of Larsen's benefits was lawful 

pursuant to the 1993 version of section 16, which provides 

that judges who are suspended or removed from office shall 

not receive any "salary, retirement benefit or other 

compensation, present or deferred." Pa. Const. art. V, 

S 16(b). Larsen, however, contends that the application of 

that provision violated his clearly established rights, as it 

was adopted after his right to retirement benefits had 

vested in 1989, at which time he had completed ten years 

of service and thus had satisfied all requirements necessary 

to receive full retirement benefits.8 Larsen emphasizes that 

the version of section 16 in effect at the time his rights 

vested did not revoke retirement benefits upon removal 

from office. See Glancey, 610 A.2d at 22-23. Thus, Larsen 

argues that the 1993 amendment to that provision 

unilaterally altered the terms of his employment 

compensation, retroactively depriving him of contractual 

rights which had vested before the amendment and 

violating his right against impairment of contractual 

obligations. See br. at 19. 

We agree. The Pennsylvania Supreme Court has held 

that, 

_________________________________________________________________ 

8. Vesting occurs when an individual "has completed the number of 

years of service required for eligibility" to receive benefits under the 

terms of a retirement plan. Police Pension Fund Ass'n Bd. v. Hess, 562 

A.2d 391, 395 (Pa. Commw. Ct. 1989). 

 12 
 [i]t has long been recognized in Pennsylvania that the 

 nature of retirement provisions for public employees is 

 that of deferred compensation for service actually 

 rendered in the past. And it is the law of this 

 Commonwealth that unilateral modifications . . . after 

 retirement eligibility requirements have been met, may 

 not be adverse to the [employee]. 

Commonwealth ex rel. Zimmerman v. Officers & Employees 

Retirement Bd., 461 A.2d 593, 595 (Pa. 1983) (citations 

omitted). In Zimmerman, the Commonwealth sought to 

terminate a public official's retirement benefits based on a 

statute providing for forfeiture of the right to such benefits 

upon conviction of a crime related to public office. The 

court, finding that the official's vested right to retirement 

benefits had accrued before enactment of the statute, held 

that that right "cannot be reached by a retroactive forfeiture 

provision," and thus upheld the official's right to receive 

retirement benefits despite his conviction for crimes that 

warranted forfeiture under the statute. See id. at 598. 

In reaffirming its decision on reargument, the court 

reiterated that, "[i]t is [the] attempt to divest previously 

vested rights of a public . . . official by subsequent 

legislative judgment that we find to be a constitutionally 

impermissible retroactive divestment of vested rights." 

Commonwealth ex rel. Zimmerman v. Officers & Employees 

Retirement Bd., 469 A.2d 141, 142 (Pa. 1983) (per curiam). 

Justice Zappala, one of four justices who joined in the 

majority opinion, wrote separately "to emphasize that no 

law, regardless of how noble its purpose may retroactively 

affect existing contract obligations. U.S. Const. art. 1 S 10. 

cl. 1. . . . Once a contractual obligation vests . .. the same 

cannot be altered, amended or changed by unilateral

action." 469 A.2d at 144 (Zappala, J., concurring). We find 

that these precedents analyzing an impairment of contract 

claim under circumstances closely analogous to those in 

the present case clearly establish that retirement benefits 

could not lawfully be denied based upon a provision

adopted after the right to receive those benefits had vested.9 

_________________________________________________________________ 

9. Because Larsen's right to retirement benefits had vested before 

adoption of the 1993 constitutional amendment, we need address only 

the implications of applying that amendment retroactively to previously 

vested rights. Accordingly, our opinion has no application to individuals 

whose rights vested after 1993. 

 13 
Appellants contend that Zimmerman is distinguishable 

because the official in that case had begun receiving 

benefits before the Commonwealth sought to terminate 

them. However, Zimmerman expressly noted that the court's 

prior decisions had established that a subsequently

adopted provision "could not prevent the payment of

benefits to employees whose . . . rights were vested in 

enjoyment" before passage of the provision. See id. at 143 

(citing Bellomini v. State Employees' Retirement Bd., 445 

A.2d 737 (Pa. 1982)). The court then held that the same 

principle applied where the official's "right in the terms of 

entitlement, although not enjoyment, had vested" before 

passage of the benefits forfeiture provision. Id. Thus, 

Zimmerman establishes that the dispositive time after which 

an employee's right to benefits cannot be altered is the time 

of the vesting of those rights "in the terms of entitlement." 

In this case, Larsen's right to retirement benefits vested in 

terms of entitlement in 1989, at which time he had satisfied 

all conditions necessary to receive full retirement benefits, 

and under the law that existed at that time, those benefits 

could not be terminated upon removal from office. See 

Glancey, 610 A.2d 15. Accordingly, it was clearly 

established that Larsen could not be denied benefits based 

upon a provision adopted in 1993.10 

Numerous other Pennsylvania cases have reached the 

same result precluding infringements on previously vested 

rights based on rules that did not exist at the time of 

vesting. In Association of Pennsylvania State College & Univ. 

Faculties v. State Sys. of Higher Educ., 479 A.2d 962, 965 

(Pa. 1984), the court, applying both the federal and state 

Impairment of Contracts Clauses, held that the 

"constitutional infirmity" of an adverse amendment of 

previously existing rules "with respect to [employees] whose 

entitlement to retirement benefits had already vested is 

clear." Thus, the court held that the amendment was "void 

_________________________________________________________________ 

10. Zimmerman, in dictum, distinguished the situation before it from a 

situation where a removal due to misconduct would result in the 

official's "failure . . . to complete the term of eligibility." See 469 

A.2d at 

143. This dictum does not apply to Larsen, who had satisfied the term 

of eligibility before he was removed from office and before the benefits 

forfeiture provision was adopted. 

 14 
as applied to employees whose rights were vested prior to 

its enactment." Id.; accord Burello v. State Employes' 

Retirement Sys., 411 A.2d 852, 855 (Pa. Commw. Ct. 1980) 

(citations omitted) ("[W]hen the conditions of retirement 

eligibility have been satisfied, retirement pay has ripened 

into a full contractual obligation and become a vested right 

[which] cannot be disturbed by subsequent legislation."); 

Harvey v. Allegheny County Retirement Bd., 141 A.2d 197, 

203 (Pa. 1958) (holding that employee who had "complied 

with all conditions necessary" to receive benefits "cannot be 

affected adversely by subsequent legislation which changes 

the terms of the retirement contract"); Wright v. Allegheny 

County Retirement Bd., 134 A.2d 231, 233-34 (Pa. 1957) 

(holding that a provision which was adopted after an 

employee's rights had vested but before employee retired 

could not lawfully be applied, as the employee's rights were 

"vested and unqualified" under the previously existing law 

and "could not be qualified or altered" by a subsequent 

enactment).11 

_________________________________________________________________ 

11. The Pennsylvania Impairment of Contracts Clause provides that, 

"[n]o . . . law impairing the obligation of contracts . . . shall be 

passed." 

Pa. Const. art. I, S 17. Because the Pennsylvania cases discussed above 

apply the federal Impairment of Contracts Clause, see, e.g., Association 

of Pennsylvania State College & Univ. Faculties, 479 A.2d at 964; 

Zimmerman, 469 A.2d at 144 (Zappala, J., concurring); Burello, 411 A.2d 

at 855, they clearly establish Larsen's rights under federal law, 

particularly absent any federal precedent to the contrary. See Mississippi 

v. Miller, 276 U.S. 174, 179, 48 S.Ct. 266, 268 (1928) (holding that 

"retroactive application" of a law adopted"after services have been 

rendered" would deprive employee of an amount"he had theretofore 

earned" and thus "would impair the obligation of the . . . contract" that 

existed at the time service was rendered). In Dodge v. Board of Educ. of 

Chicago, 302 U.S. 74, 77-78, 58 S.Ct. 98, 99-100 (1937), the Court 

permitted an impairment of retirement benefits, but did so on the 

grounds that state law rendered those benefits"mere gratuities" that did 

not give rise to vested contractual rights. Thus, Dodge is inapposite in 

this case where the benefits are a form of deferred compensation to 

which employees have enforceable contractual rights, see Zimmerman, 

469 A.2d at 142 ("[W]e have rejected the view that pension benefits are 

mere gratuities . . . . [I]t is the well settled law of this jurisdiction 

that 

the nature of retirement provisions . . . is that of deferred compensation 

for services actually rendered in the past.") (citations omitted), and 

does 

not alter the fact that nothing in the federal precedents blurs the 

clearly 

 15 
Appellants, br. at 12-13, argue that despite these cases 

clearly holding that retroactive denials of previously vested 

rights to retirement benefits unconstitutionally impair a 

contractual obligation to pay those benefits, the contours of 

Larsen's rights were not clearly established because cases 

analyzing impairments of contract have held that afinding 

of a "technical impairment is merely a preliminary step in 

resolving the more difficult question of whether that 

impairment is permitted under the Constitution," United 

States Trust Co. v. New Jersey, 431 U.S. 1, 21, 97 S.Ct. 

1505, 1517 (1976) (citations and internal quotations 

omitted), and therefore have analyzed the nature, purpose, 

and extent of the impairment in light of the public interests 

at stake. See Association of Surrogates & Supreme Court 

Reporters v. New York, 940 F.2d 766, 771 (2d Cir. 1991). 

We find this argument unpersuasive. As of the time of 

appellants' decision, the Pennsylvania Supreme Court had 

considered and rejected the argument that public interests 

in sanctioning official misconduct warranted retroactive 

impairment of vested rights. The court held that,"any 

_________________________________________________________________ 

established contours of the rights under the federal Impairment of 

Contracts Clause which are set forth in the Pennsylvania cases. 

In this case the provision adopted after vesting was set forth in the 

state constitution whereas in the cases discussed above, the provisions 

purporting to infringe the right to benefits were adopted by statute or 

ordinance. However, it was clearly established that,"[a] state can no 

more pass a law violating the obligation of a contract by means of a 

convention than by its legislature, so a provision in a state constitution 

which prohibits the enforcement of a contract is void." Fisk v. Police 

Jury 

of Jefferson, 116 U.S. 131, 135, 6 S.Ct. 329, 331 (1885) (citations 

omitted); accord McBride v. Retirement Bd. of Allegheny County, 199 A. 

130, 132-33 (Pa. 1938) ("the Contract Clause of the Federal Constitution 

. . . forbids impairment by the states, not only by statute, but also by 

amendment to . . . the State Constitution") (citations omitted). Moreover, 

nothing in the cases addressing retroactive statutory impairments of 

vested rights suggests that their holdings turn on the source of the 

retroactive law. Thus, the contours of the right against retroactive 

impairment were clearly established when appellants terminated 

Larsen's benefits despite the lack of "precise factual correspondence" 

between this case and those where the subsequently enacted provision 

was statutory. See Pro, 81 F.3d at 1292. 

 16 
argument predicated upon a compelling state interest must 

necessarily fail when applied to this attempted retroactive 

forfeiture" of previously vested retirement benefits. See 

Zimmerman, 461 A.2d at 598.12 Thus, officials charged with 

administering a retirement benefits plan could not 

reasonably have believed, in light of the decided cases 

construing the scope of the Impairment of Contracts

Clause, that the balance of interests rendered the 

impairment of Larsen's rights lawful. 

Based on the cases discussed above, we find that Larsen, 

by alleging that he was deprived of previously vested rights 

pursuant to a provision adopted after vesting, has alleged a 

violation of clearly established rights under the Impairment 

of Contracts Clause of which reasonable officials charged 

with administering retirement benefits would have known.13 

_________________________________________________________________ 

12. The court explained that benefit forfeiture provisions are powerless 

to 

deter official misconduct that occurred before their enactment. See 461 

A.2d at 598. The misconduct leading to Larsen's removal occurred well 

before the 1993 adoption of the amended section 16, bringing this case 

squarely within the rationale of Zimmerman's holding that the public 

interest in enforcing benefit forfeiture provisions did not outweigh the 

constitutional interests in protecting vested contractual rights to 

retirement benefits against retroactive impairment.

13. Appellants also contend that they are entitled to qualified immunity 

because it was not clearly established that retirement medical benefits 

were to be treated in the same manner as other forms of retirement 

benefits. See br. at 11-12. We reject this contention. It was clearly 

established that "the nature of retirement provisions . . . is that of 

deferred compensation for services actually rendered in the past." 

Zimmerman, 469 A.2d at 142-43 (citations omitted). Retirement medical 

benefits, like other retirement benefits, are an item of economic value 

offered in return for work performed, and thus fall squarely within the 

principles set forth in the cases discussed above. Indeed, to accept 

appellants' argument we would have to close our eyes to what we know 

in this era of high medical costs, that medical benefits are of crucial 

importance to retired employees. Moreover, while the Pennsylvania 

Supreme Court had not applied this rule in the precise context of 

medical benefits, it had indicated in dictum that it would do so. See, 

e.g., 

In re Upper Providence Police Delaware County Lodge No. 27, 526 A.2d 

315, 322 n.6 (Pa. 1987) (citing deferred compensation cases for the 

proposition that denial of medical benefits would"pose serious 

constitutional problems"); Lower Merion Fraternal Order of Police Lodge v. 

 17 
We hold, therefore, that appellants are not entitled to 

qualified immunity as to Larsen's claim that their 

termination of his medical benefits unconstitutionally 

impaired his contractual right to those benefits. 

C. Due Process 

The Due Process Clause provides that "[n]o state shall 

. . . deprive any person of life, liberty, or property without 

due process of law." U.S. Const. amend. XIV,S 1. Larsen 

claims that appellants violated his due process rights by 

terminating his medical benefits as they did so without 

providing him notice and either a pre- or post- revocation 

hearing. Br. at 22. Appellants answer that, because Larsen 

had no clearly established property interest in medical 

benefits for retired members of the judiciary, their 

_________________________________________________________________ 

Lower Merion Township, 512 A.2d 612, 619 (Pa. 1986) (noting that three 

justices of equally divided court would treat medical benefits like any 

other form of deferred compensation while three justices would resolve 

case on grounds that did not implicate the issue). Thus, despite the lack 

of a precedent "directly on point," the law was sufficiently clearly 

established that a reasonable official would have known that an action 

that was unlawful as to other forms of retirement benefits also would be 

unlawful as to retirement medical benefits. See Acierno, 40 F.3d at 620. 

In holding that retroactive application of a provision adopted after 

vesting violates rights of which a reasonable official charged with 

administering retirement benefits would have known, we recognize that 

Larsen alleges that both Supreme Court justices and court 

administrators participated in the decision to deny his benefits. 

Although, under certain circumstances, a reasonable judicial officer 

might be held to more stringent standards than a reasonable court 

administrator, the cases proscribing retroactive divestment of vested 

rights are sufficiently clear that any reasonable official, whether 

judicial 

or administrative, charged with administering a retirement benefits 

program should have known of this proscription. We also recognize that 

the judicial officers and court administrators may have played different 

roles in the decision to deny Larsen's benefits. However, at this 

juncture, 

the pleadings do not elucidate the nature of each appellant's 

participation in the challenged decision. Accordingly, we address only the 

principles of law of which reasonable officials in any of the appellants' 

positions should have known in participating in a decision to deny 

vested benefits. 

 18 
cancellation of Larsen's benefits did not violate clearly 

established rights under the Due Process Clause of which 

a reasonable official would have known. Appellants,

however, do not deny that if Larsen had a property interest 

in his medical benefits he was entitled to some sort of 

hearing with respect to their termination. See, e.g., 

McDaniels v. Flick, 59 F.3d 446, 453-61 (3d Cir. 1995). 

For the purposes of the Due Process Clause, property 

interests are defined by state law. See Board of Regents v. 

Roth, 408 U.S. 564, 569, 577, 92 S.Ct. 2701, 2709 (1972); 

Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir. 

1997). Larsen contends that he had a clearly established 

property right to the benefits associated with his office, 

since he had a contractual right to those benefits, and it 

was "clearly established that contractual rights are property 

interests under the Due Process Clause of the Fourteenth 

Amendment." Br. at 22. We find merit in this argument 

because it is clear that a contract right is a "form of 

property." United States Trust Co., 431 U.S. at 19 n.16, 97 

S.Ct. at 1516 n.16. Thus, inasmuch as "in Pennsylvania 

. . . the nature of retirement provisions for public employees 

is that of deferred compensation for services actually 

rendered in the past," Zimmerman, 461 A.2d 597, Larsen 

had a property interest in his right to medical benefits that 

was sufficiently clear that appellants should have 

understood that the termination of those benefits triggered 

Larsen's right under the Due Process Clause to an 

opportunity to be heard regarding his claim of entitlement 

to those benefits. Anderson, 483 U.S. at 640, 107 S.Ct. at 

3039.14 

_________________________________________________________________ 

14. Appellants contend that since the Pennsylvania Supreme Court had 

held that elected public officials have no constitutionally protected 

property interest in their elected public office, see In re 1991 

Pennsylvania Legislative Reapportionment Comm'n, 609 A.2d 132 (Pa. 

1992), it was reasonable for them to infer that there was no 

constitutionally protected right to the benefits associated with that 

public office. Br. at 15. We disagree. A holding than an elected official 

does not have a property right in his office is completely distinguishable 

from the situation at hand which involves deferred compensation for 

services rendered. 

 19 
Appellants contend that even if Larsen had a clearly 

established property interest in his medical benefits "a 

reasonable state official would be justified in concluding 

that Larsen received all the process to which he was 

entitled before the cancellation of his health care benefits." 

Br. at 15-16. Specifically, appellants argue that Larsen had 

ample opportunity to challenge his impeachment in the 

Senate, his criminal conviction in the state courts, and his 

suspension by the Court of Judicial Discipline. Id. at 15. 

We reject this argument because, while these proceedings 

allowed Larsen to contest the basis for his suspension and 

removal from office, none of them afforded him an 

opportunity to address the distinct issue of whether 

medical benefits lawfully could be terminated as a result of 

that suspension and removal. Since Larsen was not 

afforded an opportunity to be heard regarding the propriety 

of terminating his medical benefits, reasonable officials 

could not have believed that Larsen received the process he 

was due in connection with a deprivation of a clearly 

established property right. Accordingly, appellants are not 

entitled to qualified immunity with respect to Larsen's due 

process claim.15 

D. Equal Protection 

Appellants contend that they are entitled to qualified 

immunity as to Larsen's claim that the denial of his medical 

benefits violated his rights under the Equal Protection 

Clause, which provides that "[n]o state shall. . . deny to 

any person within its jurisdiction the equal protection of 

the laws." U.S. Const. amend. XIV, S 1. We agree. Larsen 

asserts that he was denied equal protection of the law 

because he was denied retirement benefits following his 

removal from office, whereas judges who had been removed 

for misconduct in the past had received such benefits 

notwithstanding their removal. Since Larsen does not allege 

that appellants violated a fundamental right or relied on a 

_________________________________________________________________ 

15. We do not find it necessary to address the question of what 

opportunity to be heard should have been afforded Larsen as appellants 

offered him no such opportunity at all either before or after 

Frankforter's 

June 17, 1994 letter. 

 20 
suspect or quasi-suspect classification, their actions, in 

order to comport with the Equal Protection Clause, need 

have only a rational relationship to a legitimate state 

interest. See Tolchin v. Supreme Court of New Jersey, 111 

F.3d 1099, 1113 (3d Cir.), cert. denied, 118 S.Ct. 435 

(1997); Dyszel v. Marks, 6 F.3d 116, 125 (3d Cir. 1993).16 

According to appellants, reasonable officials could believe 

that they had a rational basis for treating Larsen differently 

from judges removed in the past, since there had been an 

intervening constitutional amendment which served the 

rational and legitimate objective of preventing"officials who 

have been removed from office for breaching the public's 

trust from benefitting from the . . . public purse." Br. at 17. 

We agree and in fact are satisfied that Larsen's equal 

protection claim does not adequately allege a violation of a 

constitutional right at all and thus does not satisfy the first 

prong of the Siegert test. See 500 U.S. at 232, 111 S.Ct. at 

1793. The Equal Protection Clause does not require 

identical treatment of all individuals, but rather permits 

differential treatment of individuals who are differently 

situated in some relevant respect. See Nordlinger v. Hahn, 

505 U.S. 1, 10, 112 S.Ct. 2326, 2331 (1992). Thus, 

individuals who are differently situated in terms of their 

"legitimate expectation and reliance interests" rationally 

may be subjected to different rules designed to afford 

greater protection to those with heightened legitimate 

expectations. Id. at 13 (citations omitted) (upholding 

imposition of greater tax burden on those who acquired 

property after change in tax law based on their lesser 

expectation interests as compared to those who owned 

property before change in law). Because Larsen was 

removed from office at a time when the Pennsylvania

Constitution provided for denial of benefits upon removal, 

his position was different from that of judges who were 

removed when no such provision existed.17 Accordingly, 

_________________________________________________________________ 

16. Suspect classifications involve traits such as race, national origin, 

or 

alienage, while quasi-suspect classifications involve traits such as 

gender. See Dyszel, 6 F.3d 125 n.13. 

17. The difference in the law at the time of removal creates a distinction 

which a reasonable official could believe was a rational basis, under the 

 21 
there was a rational basis for treating Larsen differently 

from judges removed from office before the 1993 

constitutional amendment, and appellants are entitled to 

dismissal of Larsen's equal protection claim. 

E. First Amendment 

Larsen contends that appellants' revocation of his 

benefits violated his right of free speech under the First 

Amendment because it was a form of retaliation for his 

protected speech in alleging misconduct on the part of his 

fellow Supreme Court justices. To state a claim for

actionable retaliation under the First Amendment, the 

plaintiff must allege facts which, if proven, would establish 

that the plaintiff 's protected First Amendment activity was 

a "substantial or motivating factor in the alleged retaliatory 

action." Feldman v. Philadelphia Hous. Auth. , 43 F.3d 823, 

829 (3d Cir. 1994). This rule is derived from the Supreme 

Court's opinion in Mount Healthy City Sch. Dist. Bd. of 

Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576 

(1977). 

In support of their assertion that they are entitled to 

qualified immunity as to Larsen's First Amendment claim, 

appellants contend, br. at 18-19, that they could have 

_________________________________________________________________ 

Equal Protection Clause, for treating Larsen differently from the judges 

removed before 1993, thus entitling appellants to qualified immunity 

under the second prong of the Siegert analysis even if Larsen's 

allegations satisfied the first prong. While a reasonable official could 

believe that the 1993 constitutional amendment created a distinction 

between different judges depending on their status at the time of its 

adoption, which provided a "rational basis" for differential treatment 

within the meaning of the equal protection jurisprudence, as discussed 

in Part III. B 2, supra, a reasonable official could not believe that the 

1993 amendment may be applied retroactively to deny previously vested 

rights, as the impairment of contracts jurisprudence clearly proscribes 

such retroactive impairments. Because of the divergent standards under 

these distinct constitutional provisions, we find that reasonable 

officials 

could believe that the decision to deny Larsen's benefits did not violate 

clearly established equal protection principles but could not believe that 

this decision did not violate clearly established impairment of contracts 

principles. 

 22 
believed that their decision to revoke Larsen's benefits was 

not unconstitutionally retaliatory because they could have 

believed that they were required to apply the 1993 version 

of section 16, and thus that they would not be liable under 

the First Amendment as they would have reached the same 

decision " `even in the absence of the protected conduct.' " 

Givhan v. Eastern Line Consol. Sch. Dist., 439 U.S. 410, 

416, 99 S.Ct. 693, 697 (1979) (quoting Mount Healthy v. 

Doyle, 429 U.S. at 287, 97 S.Ct. at 576). Appellants' 

argument requires the court to apply the objective 

reasonableness standards of the qualified immunity 

doctrine to the subjective element of a First Amendment 

retaliation claim, and thus calls for the somewhat illogical 

inquiry into "whether a person reasonably could have 

thought that he in fact thought something." Sheppard v. 

Beerman, 94 F.3d 823, 828 (2d Cir. 1996). 

The qualified immunity analysis requires a determination 

as to whether reasonable officials could believe that their 

conduct was not unlawful even if it was in fact unlawful. 

See In re City of Philadelphia Litig., 49 F.3d at 961 n.14. In 

the context of a First Amendment retaliation claim, that 

determination turns on an inquiry into whether officials 

reasonably could believe that their motivations were proper 

even when their motivations were in fact retaliatory. Even 

assuming that this could be demonstrated under a certain 

set of facts, it is an inquiry that cannot be conducted 

without factual determinations as to the officials' subjective 

beliefs and motivations, and thus cannot properly be 

resolved on the face of the pleadings, but rather can be 

resolved only after the plaintiff has had an opportunity to 

adduce evidence in support of the allegations that the true 

motive for the conduct was retaliation rather than the 

legitimate reason proffered by the defendants. See 

Sheppard, 94 F.3d at 828-29.18 

_________________________________________________________________ 

18. In this respect the qualified immunity analysis as to a First 

Amendment retaliation claim differs from the qualified immunity analysis 

as to claims under the Impairment of Contracts or Due Process Clause, 

which requires only an objective analysis of whether reasonable officials 

could believe that the challenged actions conformed to objective 

standards of conduct. 

 23 
According to Larsen's allegations, which we must accept 

as true for purposes of this appeal from an order entered 

on the pleadings, the true motive for appellants' decision 

was retaliation for his protected speech. See app. at 72-73; 

96-97. Appellants may be able to establish by the end of 

discovery that their decision in fact rested on a good faith 

belief, which they would have formed even in the absence 

of any protected speech, that they were to required to 

revoke Larsen's benefits under the 1993 version of section 

16. However, at this juncture, we must accept Larsen's 

allegations that their true reasons were retaliatory, 

allegations which state a claim for violation of clearly 

established rights under the First Amendment, precluding 

dismissal on qualified immunity grounds. See Walker v. 

Schwalbe, 112 F.3d 1127, 1133 (11th Cir. 1997) (rejecting 

assertion of qualified immunity on grounds that defendants' 

proffer of non-retaliatory reason created factual dispute as 

to "true reason" for the adverse action and did not defeat 

claim for violation of clearly established right against 

retaliatory action); see also Azzaro v. County of Allegheny, 

110 F.3d 968, 981 (3d Cir. 1997) (holding that assertion of 

non-retaliatory reason which would have justified decision 

even in absence of protected activity created factual issue 

precluding summary judgment as to retaliation claim). 

In reaching this result we are not suggesting that a bare 

allegation of retaliatory motive necessarily is sufficient to 

defeat an assertion of qualified immunity as to a retaliation 

claim. In some circumstances, the legitimate basis for the 

actions might be so apparent that the plaintiff 's allegations 

of retaliatory motive could not alter the conclusion that 

under the circumstances alleged in the pleadings, the 

defendants would have been compelled to reach the same 

decision even without regard for the protected First 

Amendment activity. In this case, however, appellants were 

faced with a decision as to whether to subject Larsen to the 

more adverse 1993 version of section 16, a decision whose 

outcome, under the circumstances alleged by Larsen, could 

have been affected by a retaliatory motive.19 Thus we 

_________________________________________________________________ 

19. To defeat a First Amendment retaliation claim if a plaintiff 

demonstrates that his protected First Amendment activity was a 

 24 
cannot conclude from the face of the pleadings that

appellants would have taken the same action in the 

absence of protected speech. Accordingly, appellants are 

not entitled, at this preliminary stage of the litigation, to 

qualified immunity as to Larsen's First Amendment 

retaliation claim. 

F. Public Health Services Act 

Appellants contend that they are entitled to qualified 

immunity as to Larsen's claim that the termination of his 

benefits violated his rights under the Public Health Services 

Act, 42 U.S.C. SS 300bb-1 et seq. ("PHSA"). The PHSA 

provides that state-operated group health plans must offer 

18 months of continuing coverage to qualified beneficiaries 

who otherwise would lose coverage as a result of a 

"qualifying event." 42 U.S.C. SS 300bb-1(a), 300bb-2(2). The 

PHSA defines the term "qualifying event" to include

"termination (other than by reason of [the] employee's gross 

misconduct)." Section 300bb-3(2). 

Appellants contend that Larsen did not have a clearly 

established right to continuing coverage under the PHSA, 

because reasonable officials could believe that Larsen's 

termination was not a "qualifying event" within the meaning 

of the PHSA entitling him to elect continuing coverage. 

According to appellants, reasonable officials could conclude 

that Larsen's termination was "by reason of . . . gross 

misconduct," thus excluding his termination from the 

definition of a "qualifying event" under section 300bb-3(2), 

and rendering him ineligible for coverage under section 

_________________________________________________________________ 

substantial or motivating factor for the retaliatory action, a defendant 

must establish not merely that he "could properly" have taken the same 

adverse action based on an independent "legally sufficient" reason, but 

also that he "would have" done so in the absence of protected conduct. 

Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1075 (3d Cir. 1990). 

The mere fact that the 1993 version of section 16 provided for 

termination of benefits upon removal would not defeat Larsen's 

retaliation claim if he could demonstrate that appellants decided to apply 

that provision, rather than the more lenient version of section 16 that 

existed at the time of vesting, due to retaliatory animus. 

 25 
300bb-1(a). In support of their argument that Larsen's 

termination reasonably could be viewed as a termination 

"by reason of . . . gross misconduct," appellants emphasize 

that Larsen had been convicted of two felony counts, 

removed from office by the Court of Common Pleas as part 

of his criminal sentence, suspended from office by the 

Court of Judicial Discipline for his criminal conduct which 

that court found had undermined public confidence in the 

judiciary, and called before the Senate on a writ of 

impeachment summons. Br. at 20-21. 

Neither the PHSA, nor the comparable statute applicable 

to private employers, defines the term "gross misconduct." 

See 42 U.S.C. SS 300bb-1 et seq.; 29 U.S.C. SS 1161 et seq.20 

Moreover, as of the time appellants decided to terminate 

Larsen's benefits, the cases construing these provisions had 

not set forth a clear definition of "gross misconduct" under 

the PHSA.21 These cases, however, had applied the 

standard to conduct which reasonable officials could believe 

was no more egregious than Larsen's conduct in unlawfully 

procuring controlled substances through the use of his 

subordinates. See, e.g., Burke v. American Stores Employee 

Benefit Plan, 818 F. Supp. 1131 (N.D. Ill. 1993) (holding 

that use of improperly procured promotional discount 

vouchers to obtain free products from employer's retail 

outlets constituted gross misconduct); Adkins v. United Int'l 

Investigative Servs., Inc., 1993 WL 345186 (N.D. Cal. 1993) 

(holding that leaving post unattended and falsifying records 

to receive additional paychecks constituted gross 

misconduct); Conery v. Bath Assocs., 803 F. Supp. 1388, 

1396 (N.D. Ind. 1992) (holding that misappropriation of 

_________________________________________________________________ 

20. The analogous provision governing private employers is set forth in 

the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 

U.S.C. S 1161(a), which requires the employer to offer continuing 

coverage to employees who otherwise "would lose coverage under the 

plan as a result of a qualifying event." 

21. In Burke v. American Stores Employee Benefit Plan, 818 F. Supp. 

1131, 1135 (N.D. Ill. 1993), the court, applying 29 U.S.C. S 1161(a), 

noted that, "[t]here is little direct statutory or judicial guidance on 

the 

meaning of `gross misconduct.' " While the Burke court looked to Illinois 

state law for guidance, we have not made any comparable state-law 

analysis. 

 26 
funds constituted gross misconduct). We are satisfied from 

these cases and from the language of the PHSA that Larsen 

has not adequately alleged a violation of the PHSA and thus 

his complaint with respect to that statute does not pass 

muster under the first prong of a Siegert analysis.

Moreover, even if it did, because a reasonable official could 

believe that the acts which resulted in Larsen's termination 

amounted to gross misconduct, it was not clearly 

established that Larsen's termination was a "qualifying 

event" triggering his right to coverage under the PHSA. 

Larsen contends that, regardless of the egregiousness of 

his conduct, it cannot be characterized as "gross 

misconduct" under the PHSA because it did not occur

"within the scope of his employment as an associate

justice." Br. at 26-27. However, nothing in the statutory 

language or relevant case law clearly establishes, or even 

suggests, that "gross misconduct" under the PHSA must 

occur within the scope of employment. Accordingly, it 

appears that a reasonable official applying the plain 

language of the PHSA could conclude that any termination 

which occurred "by reason of [the] employee's gross

misconduct" would fall within the exception to section 

300bb-3(2) and thus would not constitute a "qualifying 

event" entitling the employee to continuing coverage, 

regardless of whether the conduct occurred within the 

scope of employment.22 Because Larsen did not adequately 

allege a violation of the PHSA and because, therefore, there 

was no clearly established law indicating that Larsen's 

termination was a qualifying event under section 300bb3(2), appellants are entitled to qualified immunity as to 

Larsen's claim under the PHSA. 

_________________________________________________________________ 

22. Even if it were clearly established that"gross misconduct" 

encompassed only misconduct within the scope of employment, a 

reasonable official could believe that Larsen's conduct was sufficiently 

related to his employment to satisfy such a requirement. As the district 

court noted, 955 F. Supp. at 1581 & n.33, the criminal misconduct 

which led to Larsen's removal from office involved Larsen's use of his 

subordinates and his state employees' prescription plan to procure 

prescription medications unlawfully. Absent some authority to the 

contrary, reasonable officials could conclude that this nexus between 

Larsen's misconduct and his employment would satisfy any requirement 

in that regard. 

 27 
IV. CONCLUSION 

For the foregoing reasons, we hold that Larsen's 

complaint alleges violations of clearly established rights 

under the Impairment of Contracts Clause, the Due Process 

Clause, and the First Amendment. Therefore, appellants are 

not entitled to qualified immunity with respect to those 

claims and, accordingly, we will affirm the district court's 

denial of their motion to dismiss those claims on qualified 

immunity grounds. However, Larsen's complaint fails to 

allege violations of his rights under the Equal Protection 

Clause or the Public Health Services Act. We therefore will 

reverse the denial of appellants' motion to dismiss those 

claims and on remand the district court should dismiss 

those claims on qualified immunity grounds. In summary, 

we will affirm in part, will reverse in part, and will remand 

this case to the district court for further proceedings 

consistent with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 28