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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD L. WARKEVICZ, : No. 4:15-cv-01922

:

Plaintiff, : (Judge Brann)

:

v. :

:

BERWICK AREA SCHOOL :

DISTRICT, MARYANN :

KOVALEWSKI, DANIEL :

MCGANN, WILLIAM :

MCLAUGHLIN, RON ROBSOCK, :

and SUZY WIEGAND, :

:

Defendants. :

MEMORANDUM

July 14, 2016

Plaintiff initiated this obscure action with a correspondingly sparse 

complaint. As the Court attempted to wade through Plaintiff’s murky and 

often discontinuous recounting of the events that gave rise to this 

litigation, it shortly became evident that Plaintiff had failed to allege 

sufficient factual matter to establish a plausible entitlement to relief as a 

matter of law. 

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Further obstructing Plaintiff’s path to relief, a careful examination of 

this action’s dramatis personae quite plainly reveals to any reasonable 

onlooker that the public officials implicated herein enjoy either qualified or 

absolute immunity as to each of the claims asserted against them—forms 

of immunity, which I note from the outset, promote the vitality of 

democratic rule by minimizing judicial second-guessing through lawsuits 

like this one.

As such, and in accordance with the decisions of the Supreme Court 

of the United States in Bell Atlantic Corp. v. Twombly and Ashcroft v. 

Iqbal, as well as that of the United States Court of Appeals for the Third 

Circuit in Connelly v. Lane Construction Corp., Defendants’ motion to 

dismiss is granted in whole. 1Importantly, because I have also determined 

that, as a matter of law, amendment would be futile, the motion is granted 

with prejudice, and the courthouse doors will consequently be closed to 

any further attempt by Plaintiff to pursue this action in federal court.

 

1 550 U.S. 544 (2007); 556 U.S. 662 (2009); 809 F.3d 780 (3d Cir. 2016).

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I. BACKGROUND

“Although a reviewing court now affirmatively disregards a 

pleading’s legal conclusions, it must still—as we have already 

emphasized—assume all remaining factual allegations to be true, construe 

those truths in the light most favorable to the plaintiff, and then draw all 

reasonable inferences from them.”

2 Plaintiff’s complaint here is so 

inartfully drafted that distillation of fact from legal opinion has been 

rendered exceedingly difficult. The complaint, for instance, lacks any 

semblance of a sound factual basis or perceptible timeline for the events in 

question. Nevertheless, as demanded by prevailing law, this Court has 

endeavored to discern the complaint’s factual allegations and thereafter, to 

cast them in the light most favorable to the Plaintiff.

A. The Berwick Area School District’s board allegedly excludes 

Plaintiff from district property on June 25, 2015.

The Berwick Area School District (hereinafter “the District”) is a 

public school district that spans portions of both Columbia and Luzerne 

 

2 Connelly v. Lane Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016) (Jordan, J.).

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Counties. According to the complaint, on June 25, 2015, the District’s 

school board “purported to exclude and bar Plaintiff from all real estate, 

property, buildings, stadiums, fields and any other location, owned,

operated or controlled by the District, effective immediately.”

3 The 

individual Defendants—Maryann Kovalewski, Daniel McGann, William 

McLaughlin, Ron Robsock, and Suzy Wiegand—apparently are the five 

school board directors who voted to exclude Plaintiff.4 Plaintiff fails to 

provide any further meaningful facts about the June 25, 2015 board 

meeting.

5

 

3 Pl.’s Compl., ECF No. 1 at 5 ¶ 20.

4

Id. at ¶ 23.

5 Although unclear from the text of Plaintiff’s complaint, Plaintiff had 

apparently come under fire by the District’s school board in 2015 as a result of 

his purported involvement as a high school football “booster” and his alleged 

connections to the late George Curry, the District’s then head football coach 

and the winningest coach in Pennsylvania high school football history. In 

recent years, the District has found itself in the heart of an investigation by 

the District II Athletic Committee for the Pennsylvania Interscholastic 

Athletic Association (PIAA), which examined whether male student-athletes 

residing outside of the District’s geographic bounds were improperly 

“recruited” to play football for the District’s high school football team. The 

District’s recruitment scandal, rumored expansive in both temporal and 

geographic scope, ultimately resulted in a brief suspension of the program as 

well as the PIAA’s District II Athletic Committee rescinding the eligibility of 

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“The District thereafter informed Plaintiff that should he attempt to

be physically present at any such location, that it had informed and 

instructed the local law enforcement officials to immediately remove him 

and consider him as a trespasser.”

6 According to Plaintiff, the area from 

which he was excluded “includes property to which the general public is 

invited without limitation for purposes of assembly, including, but not 

limited to, school buildings, stadiums and fields.”

7 Moreover, Plaintiff 

notes that “Defendants acted to exclude Plaintiff from all District property 

 

several of the District’s high school football players in 2015. See, e.g., Cam 

Smith, Powerful Pennsylvania Football Program Berwick Suspended for Two 

Weeks during Investigation, USA Today: High School Sports, May 13, 2015, 

at http://usatodayhss.com/2015/powerful-pennsylvania-football-programberwick-suspended-for-two-weeks-during-investigation; Berwick Football 

Players Ruled Ineligible by District 2 Committee, The Citizens’ Voice, June 24, 

2015, at http://citizensvoice.com/sports/berwick-football-players-ruledineligible-by-district-2-committee-1.1903064; Steve Bennett, Berwick Football 

Supported Banned from Program, The Times-Tribune, June 26, 2015, at 

http://thetimes-tribune.com/sports/berwick-football-supporter-banned-fromprogram-1.1904100. See also ECF No. 8 Exs. 1–4. Although inessential to my 

determination here, for a complete discussion of a district court’s ability to 

consider documents that are external to the complaint, yet critical to the 

underlying claim, without converting a motion to dismiss into one for 

summary judgment, see Part III.A, infra.

6

Id. at ¶ 21.

7

Id. at 5–6 ¶ 24.

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without any form of due process or hearing prior to the deprivation.”

8

Plaintiff’s June 25, 2015 exclusion was subsequently reiterated by the 

District’s school board on September 14, 2015.9 He alleges that he

requested a hearing from the District, which request has not yet been 

granted.10 No further details as to Plaintiff’s ban have been pled.

As a consequence, Plaintiff alleges that “the Defendants have denied 

to Plaintiff his rights of assembly and access to public places and his 

privileges and immunities as guaranteed to him under the First, Fifth and 

Fourteenth Amendments of the United States Constitution.”

11 Counts I 

through IV of Plaintiff’s complaint each pertain, in somewhat overlapping

fashion, to these alleged constitutional deprivations.

B. Plaintiff claims that Defendants’ conduct during the June 25, 

2015 and September 14, 2015 school board meetings 

constituted intentional infliction of emotional distress, 

slander, and false light invasion of privacy.

 

8

Id. at 5 ¶ 23.

9

Id. at 7 ¶¶ 34–35.

10 Id. at ¶ 39.

11 Id. at ¶ 40.

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Plaintiff alleges that the following three comments were made by 

Defendant Kovalewski in reference to Plaintiff during the course of the 

June 25, 2015 and September 14, 2015 meetings:

1. “[He] may or may not be out there playing Jerry Maguire.”12

2. “[He] maybe [sic] using kids as pawns.”13

3. “It reminded me in a different way of Kids for Cash, and I 

have no tolerance for that.”14

4. “He’s a shadowy figure.”15

In connection with these comments, Plaintiff writes that “[t]he 

Defendants caused such publicity to be printed and circulated in local 

newspapers and through other media and means.”

16 Plaintiff has failed to 

plead precisely how Defendants caused such publication or in what 

capacity such statements were ultimately publicized. Moreover, Plaintiff

contends that “[t]he Defendants knew that such allegations regarding 

Plaintiff were false or, in the alternative, acted with extreme recklessness as 

 

12 Id. at 6 ¶ 27.

13 Id. at ¶ 28.

14 Id. at ¶ 29.

15 Id. at 7 ¶ 37.

16 Id. at 6 ¶ 30.

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to their falsity.”

17 Alternatively, Plaintiff writes that “the individual 

Defendants deliberately created the context and impression by which the 

action taken and the false report were disseminated.”

18 According to 

Plaintiff, such comments “created publicity casting [him] in a notoriously 

negative light.”

19

According to the complaint and as will become relevant later on, 

“Plaintiff is engaged in the business of providing insurance services to 

individuals and businesses of the general public in northeastern 

Pennsylvania.” 20 He “does business under the name of Ed Warkevicz 

Insurance Services.”

21 “On account of aforesaid deprivation and the 

publicity given to it by the Defendants,” Plaintiff contends that the “has 

lost business, revenue and profit from his insurance business on account of 

customers declining to do business with him.”

22 As a result, Plaintiff has 

 

17 Id. at ¶ 31.

18 Id. at ¶ 32.

19 Id. at 7 ¶ 38.

20 Id. at 2 ¶ 6.

21 Id.

22 Id. at 8 ¶ 43.

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also filed Counts V through VII, which allege intentional infliction of 

emotional distress, slander, and false light invasion of privacy, 

respectively.

II. LAW

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file 

a motion to dismiss for “failure to state a claim upon which relief can be 

granted.” Such a motion “tests the legal sufficiency of a pleading” and 

“streamlines litigation by dispensing with needless discovery and 

factfinding.”23 “Rule 12(b)(6) authorizes a court to dismiss a claim on the 

basis of a dispositive issue of law.”24 This is true of any claim, “without 

regard to whether it is based on an outlandish legal theory or on a close 

but ultimately unavailing one.”25

 

23 In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) 

(Scirica, C.J.) (quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 

(7th Cir. 2001) (Easterbrook, J.)). Neitzke v. Williams, 490 U.S. 319, 326–27 

(1989).

24 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 

(1984)).

25 Neitzke, 490 U.S. at 327.

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Beginning in 2007, the Supreme Court of the United States initiated 

what some scholars have termed the Roberts Court’s “civil procedure 

revival” by significantly tightening the standard that district courts must 

apply to 12(b)(6) motions.26 In two landmark decisions, Bell Atlantic 

Corporation v. Twombly and Ashcroft v. Iqbal, the Roberts Court 

“changed . . . the pleading landscape” by “signal[ing] to lower-court 

judges that the stricter approach some had been taking was appropriate 

under the Federal Rules.”27 More specifically, the Court in these two 

decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v. 

Gibson and replaced it with a more exacting “plausibility” standard.28

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to 

dismiss, a complaint must contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face.’”

29 “A claim has

 

26 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 

31 Rev. Litig. 313 (2012).

27 550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.

28 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) 

(“[a]cknowledging that Twombly retired the Conley no-set-of-facts test”).

29 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

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facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.”30 “Although the plausibility standard does not 

impose a probability requirement, it does require a pleading to show more 

than a sheer possibility that a defendant has acted unlawfully.”31

Moreover, “[a]sking for plausible grounds . . . calls for enough facts to 

raise a reasonable expectation that discovery will reveal evidence of 

[wrongdoing].”32

The plausibility determination is “a context-specific task that 

requires the reviewing court to draw on its judicial experience and 

common sense.”33 No matter the context, however, “[w]here a complaint 

pleads facts that are ‘merely consistent with’ a defendant’s liability, it 

 

30 Iqbal, 556 U.S. at 678.

31 Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (Jordan, J.) 

(internal quotations and citations omitted).

32 Twombly, 550 U.S. at 556.

33 Iqbal, 556 U.S. at 679.

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‘stops short of the line between possibility and plausibility of entitlement 

to relief.’”

34

When disposing of a motion to dismiss, a court must “accept as true 

all factual allegations in the complaint and draw all inferences from the 

facts alleged in the light most favorable to [the plaintiff].”35 However, “the 

tenet that a court must accept as true all of the allegations contained in the 

complaint is inapplicable to legal conclusions.”36 “After Iqbal, it is clear 

that conclusory or ‘bare-bones’ allegations will no longer survive a motion 

to dismiss.”37 “Threadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.”38

As a matter of procedure, the United States Court of Appeals for the 

Third Circuit has instructed that:

Under the pleading regime established by Twombly and 

Iqbal, a court reviewing the sufficiency of a complaint must 

 

34 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations 

omitted)).

35 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

36 Iqbal, 556 U.S. at 678 (internal citations omitted).

37 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).

38 Iqbal, 556 U.S. at 678.

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take three steps. First, it must tak[e] note of the elements [the] 

plaintiff must plead to state a claim. Second, it should identify 

allegations that, because they are no more than conclusions, 

are not entitled to the assumption of truth. Finally, [w]hen 

there are well-pleaded factual allegations, [the] court should 

assume their veracity and then determine whether they 

plausibly give rise to an entitlement to relief.39

III. ANALYSIS

Plaintiff’s claims are unsupported by law and barred by the 

doctrines of qualified and absolute immunity. Accordingly, I am of the 

opinion that Plaintiff’s complaint entirely lacks merit. Further, because I 

find that subsequent amendment would be futile, Defendants’ motion to 

dismiss is granted with prejudice.

A. Plaintiff’s Constitutional Rights Were Not Violated.

The whole of Plaintiff’s complaint is that his exclusion from District

property without a formal hearing “was in violation of his rights of 

assembly, travel, speech and association as guaranteed by the First, Fifth, 

and Fourteenth Amendments of the United States Constitution.”40

However, established law in this and other circuits is exactly to the 

 

39 Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

40 ECF No. 1 at 8 ¶ 46.

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contrary: to ensure the safety and wellbeing of a school district’s 

constituents, removal or exclusion of a member of the public from school 

district property without a hearing does not violate a constitutional right 

and consequently is not so actionable.

In Cole v. Montague Board of Education, for example, the United 

States Court of Appeals for the Third Circuit considered allegations that 

the appellants had been removed and permanently banned from school 

property without prior hearing.41 The Third Circuit affirmed the district 

court’s decision to grant judgment on the pleadings in favor of the 

defendants.42 The court wrote that “[a]s to the claim that the School Board 

violated the Coles’ due process rights by ‘illegally’ banning them from 

school property, this contention plainly lacks merit.”

43 According to the 

Third Circuit, prohibition of an individual from school grounds violated 

 

41 Cole v. Montague Bd. of Educ., 145 F. App’x 760, 761 (3d Cir. 2005).

42 Id.

43 Id. at 762. The Court reminds Plaintiff that Fed. R. Civ. P. 11(b) mandates that 

an attorney conduct “an inquiry reasonable under the circumstances” into the 

law and facts prior to certification and filing in Federal Court.

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no constitutional provision.

44 “Therefore,” the Third Circuit assured, “the 

District Court applied the correct law in granting the School Board’s 

motion for judgment on the pleadings.”

45

For support, the Third Circuit relied upon and directly quoted

Lovern v. Edwards, a decision by the United States Court of Appeals for 

the Fourth Circuit. In Lovern, the Fourth Circuit affirmed the district 

court’s dismissal of a constitutional case brought by an individual who 

had been denied entry onto school property.46 The Fourth Circuit 

explained, in a passage also reiterated by the Third Circuit in Cole, that

“[s]chool officials have the authority to control students and school 

personnel on school property, and also have the authority and 

responsibility for assuring that parents and third parties conduct 

themselves appropriately while on school property.”

47 The Fourth Circuit 

went on to unequivocally explain that “[w]hile the specific contours of the 

 

44 See id.

45 Id. at 763.

46 190 F.3d 648, 655 (4th Cir. 1999).

47 Id.

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authority and responsibility of school officials are defined by state law, 

such officials should never be intimidated into compromising the safety of 

those who utilize school property.”

48

As a result, the Fourth Circuit in Lovern concluded that the 

constitutional claims alleged were “plainly insubstantial and entirely 

frivolous,” because “assertions that school administrators must provide 

him with boundless access to school property are obviously without 

merit.”49 In fact, due to the frivolousness of the constitutional claims, the 

Fourth Circuit even went one step further, affirming the district court’s 

decision to dismiss the case entirely from federal court for lack of subject 

matter jurisdiction, noting that “this case is a monument to what ought not 

to be in a federal court.”

50

To review another example of federal courts having denied outright 

claims like those alleged here, the United States District Court for the 

Eastern District of Pennsylvania in Henley v. Octorara Area School 

 

48 Id.

49 Id. at 656 (internal quotation marks and citation omitted).

50 Id.

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District, wrote that “[t]he equal protection clause of the Constitution does 

not preclude public school authorities from making reasonable 

classifications and enforcing reasonable conditions . . . to come onto or use 

public school property.”

51 “Reasonable classifications that do not infringe 

on other recognized rights such as freedom of speech and are not invidious 

classifications such as those based on race, political views, or religious 

affiliations, are constitutionally permissible.”

52

In Henley, the court reasoned that “school authorities had the right 

to exclude [the plaintiff] from coming onto the school property, 

considering that [he] had engaged in criminal activities involving school 

students including a criminal conspiracy with Octorara Area High School 

students.”53 “Certainly the classification excluding [the plaintiff] had a 

rational basis and was reasonable.”

54 Moreover, the district court explained 

that “[t]he right to come onto the school property was not such a right as 

 

51 701 F. Supp. 545, 551 (E.D. Pa. 1988).

52 Id.

53 Id.

54 Id.

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to require any sort of a due process hearing before making the 

classification that excluded [him].”55

Consequently, the instant case, like Henley, merits no other foreseeable 

conclusion faithful to the law than outright dismissal of Plaintiff’s 

constitutional counts.

56

In light of the Henley decision, and in support of their motion to 

dismiss, Defendants have appended various exhibits, including the school 

board’s meeting minutes, which they suggest are documents central to 

complaint that therefore may be considered on a motion to dismiss 

without converting it into a motion for summary judgment.57 Although I 

would note that consideration of these external documents was inessential 

to my ultimate determination, were I to reach this particular issue, I would 

 

55 Id.

56 Though federal question and supplemental jurisdiction seem to be 

appropriate on the face of this action, Plaintiff fails to address the 

jurisdictional argument advanced by the Fourth Circuit in Lovern. That is to 

say, given the evident deficiencies of the anchor claims here (Plaintiff’s 

constitutional claims), it is quite likely that Plaintiff would plainly lack subject 

matter jurisdiction to continue litigation in this Court were any state-law 

claims to survive.

57 ECF No. 8 Exs. 1–4.

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be inclined to agree with the Defendants that such documents could be 

considered at the pleading stage in this case.

In Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., the

leading decision on the issue of consideration of external documents at the 

motion to dismiss stage, the Third Circuit instructed as follows:

We now hold that a court may consider an undisputedly 

authentic document that a defendant attaches as an exhibit to 

a motion to dismiss if the plaintiff’s claims are based on the 

document. Otherwise, a plaintiff with a legally deficient claim 

could survive a motion to dismiss simply by failing to attach a 

dispositive document on which it relied.58

Further, according to the Third Circuit, “a document integral to or 

explicitly relied upon in the complaint may be considered without 

converting the motion to dismiss into one for summary judgment.”59 This 

is because “the primary problem raised by looking to documents outside 

the complaint—lack of notice to the plaintiff—is dissipated [w]here the 

plaintiff has actual notice . . . and has relied upon these documents in 

 

58 998 F.2d 1192, 1196 (3d Cir. 1993) (Cowen, J.) (internal citations omitted).

59 Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (internal citations and 

quotations omitted) (emphasis in original).

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framing the complaint.”60 “[W]hat is critical is whether the claims in the 

complaint are based on an extrinsic document and not merely whether the 

extrinsic document was explicitly cited.”61

Plaintiff contends, rather opaquely in opposition, that it would be 

inappropriate to consider Defendants’ documents—documents that 

illuminate the actual events underlying the action, a chain of events that 

Plaintiff and his counsel apparently believe can remain shrouded in 

mystery so long as they have been concealed by a vague pleading. 

This Court has finite resources to expend on each case, and 

consequently, comparably little tolerance for less-than-forthright 

approaches.62 Where a plaintiff’s claims are defunct from the get-go, this 

Court will have no part in aiding and abetting his efforts to conceal their 

 

60 Id. (internal citations and quotations omitted).

61 Id. (internal quotations omitted).

62 See, e.g., Keister v. PPL Corp., No. 4:13-CV-00118, 2016 WL 688031, at *8 

(M.D. Pa. Feb. 19, 2016) (imposing approximately $116,000.00 in sanctions in a 

case involving a complaint that “lodged averments about evidence that 

turned out not to exist and that were wholly contradicted” by the evidence 

and that also “loft[ed] these unsubstantiated averments at precisely the most 

problematic junctures, making dismissal . . . infeasible”).

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spuriousness and thereby induce further meritless litigation. As such, I 

have reviewed the pertinent exhibits, including the relevant board meeting 

transcripts, and although unnecessary to my ultimate determination, 

believe consideration of such documents and the reasonable justifications 

they reveal is wholly appropriate at this stage.

63

Finally, turning to the issue of futility of amendment, as should be 

evident from the foregoing discussion, no amount of amendment or 

supplementation of additional facts will ever be sufficient to right the fatal 

legal defect in Plaintiff’s case theory here. No matter what number 

iteration of an amended complaint I review, exclusion of a member of the 

public from school grounds under the circumstances as they unfolded here 

simply will not give rise to a constitutional cause action. For that reason, 

Defendants’ motion to dismiss must be granted with prejudice.

 

63 See ECF No. 8 Ex’s. 1–4. See also Federal Rule of Civil Procedure 1 (“These 

rules . . . should be construed, administered, and employed by the court and 

the parties to secure the just, speedy, and inexpensive determination of every 

action and proceeding.”).

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B. Further, the Defendants Enjoy Qualified Immunity as to 

Plaintiff’s Constitutional Claims.

“[G]overnment officials performing discretionary functions 

generally are shielded from liability for civil damages insofar as their 

conduct does not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.”64 “Qualified 

immunity balances two important interests—the need to hold public 

officials accountable when they exercise power irresponsibly and the need 

to shield officials from harassment, distraction, and liability when they 

perform their duties reasonably.”65 “The protection of qualified immunity

applies regardless of whether the government official’s error is a mistake 

of law, a mistake of fact, or a mistake based on mixed questions of law and 

fact.”66 However, “qualified immunity is inapplicable to a state law cause 

 

64 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 

(1982).

65 Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 

(2009).

66 Id. (internal quotation marks omitted).

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of action.”67 Thus, as should be noted for our purposes here, “[a] qualified 

immunity analysis does not apply to a pendent state claim.”68

“Decision of this purely legal question permits courts to 

expeditiously weed out suits which fail the test without requiring a 

defendant who rightly claims qualified immunity to engage in expensive 

and time consuming preparation to defend the suit on its merits.”69 “One 

of the purposes of immunity, absolute or qualified, is to spare a defendant 

not only unwarranted liability, but unwarranted demands customarily 

imposed upon those defending a long drawn out lawsuit.”

70“Indeed,” the 

Supreme Court of the United States has “made clear that the ‘driving force’

behind creation of the qualified immunity doctrine was a desire to ensure 

that ‘insubstantial claims’ against government officials [will] be resolved 

prior to discovery.”71 “Accordingly, we repeatedly have stressed the 

 

67 Miller v. New Jersey, 144 F. App’x 926, 929 (3d Cir. 2005).

68 Id.

69 Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793, 114 L. Ed. 2d 277 

(1991).

70 Id.

71 Pearson, 555 U.S. at 231 (second internal quotation marks omitted).

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importance of resolving immunity questions at the earliest possible stage 

in litigation.”72

In Saucier v. Katz, the Supreme Court established a two-step process 

for resolving claims of qualified immunity: “First, a court must decide 

whether the facts that a plaintiff has alleged or shown make out a violation 

of a constitutional right. Second, if the plaintiff has satisfied this first step, 

the court must decide whether the right at issue was ‘clearly established’ at 

the time of defendant’s alleged misconduct.”

73 “For the official to have ‘fair 

warning’ that his or her actions violate a person’s rights, the contours of 

the right must be sufficiently clear that a reasonable official would 

understand that what he is doing violates that right.”74

“This two-step procedure, the Saucier Court reasoned, is necessary

to support the Constitution’s elaboration from case to case and to prevent 

 

72 Id. at 232 (internal quotation marks omitted).

73 Pearson, 555 U.S. at 232 (citing Saucier v. Katz, 534 U.S. 194, 201 (2001)).

74 Burns v. PA Dep’t of Corr., 642 F.3d 163, 176 (3d Cir. 2011) (internal quotation 

marks and citations omitted).

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constitutional stagnation.”75 “The law might be deprived of this 

explanation were a court simply to skip ahead to the question whether the 

law clearly established that the officer’s conduct was unlawful in the 

circumstances of the case.”76

In Pearson v. Callahan, Justice Samuel A. Alito, Jr., writing for the 

Supreme Court, explained that “while the sequence set forth [in Saucier] is 

often appropriate, it should no longer be regarded as mandatory.”

77 “The 

judges of the district courts and the courts of appeals should be permitted 

to exercise their sound discretion in deciding which of the two prongs of 

the qualified immunity analysis should be addressed first in light of the 

circumstances in the particular case at hand.”

78

As applied to this case, the analysis in Part III.A made clear that 

Plaintiff’s constitutional rights had not been violated. Nevertheless, and for 

the sake of completeness, I would also hold that the Defendants are 

 

75 Pearson, 555 U.S. at 232 (quoting Saucier, 533 U.S. at 201).

76 Pearson, 555 U.S. at 232 (quoting Saucier, 533 U.S. at 201).

77 555 U.S. at 236.

78 Id.

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entitled to qualified immunity as to Plaintiff’s federal claims, because 

Defendants would have had no “fair warning” that the allegedly violated 

rights were “sufficiently clear,” even supposing such rights existed.

For the sake of argument, Defendants themselves point to the 

November 6, 2015 decision issued by the Honorable Robert D. Mariani of 

this Court in Barna v. Board of School Directors of the Panther Valley 

School District.

79 In Barna, the court addressed a permanent ban from 

school board meetings, a targeted punishment sufficiently distinct from 

that of the generalized exclusion of Plaintiff here from the District’s 

facilities. Defendants adequately point out that the permanency of such a 

ban has not been plausibly alleged here.80 Moreover, nothing about the ban 

 

79 143 F. Supp. 3d 205, 207 (M.D. Pa. 2015).

80 For that matter, Defendants would be respectfully advised to consider that 

courts, in light of the foregoing precedents, are more likely to react amenably 

to narrowly tailored bans that state with particularity the justifications for 

such a ban, the temporal and geographic scope of such bans, and permit the 

banned individual, if appropriate and feasible, to engage in First Amendment 

activity, such as public school board comments, in meaningful ways through 

direct, live involvement or indirect, previously submitted statements. Such 

clarification is especially helpful in cases where an individual’s alleged 

wrongdoing relates to a certain aspect of the school district’s operation, such 

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here appears in any way specifically targeted to constrain the Plaintiff’s 

First Amendment rights of speech and assembly. He is excluded from all 

district property, regardless as a spectator, speaker, coach, etc. 

Lastly, as a factual matter, Plaintiff’s removal from district facilities 

occurred as a reasonable consequence of alleged wrongdoing involving the 

District’s high school football team and Plaintiff’s purported participation 

in a related recruiting scandal. Whether such allegations were legitimate is 

not for this Court to decide. However, this background does provide 

sufficient factual support to discern a rational connection between the 

District’s responsibility of ensuring the wellbeing of its pupils and its 

ultimate decision to institute the facilities ban as against Plaintiff. In other 

words, as in Henley, Plaintiff has pled no evidence that Defendants’ 

decision was based upon an invidious classification, rather than on a 

reasonable one.

The extreme circumstances implicated in the Barna litigation, which 

punishment was specifically aimed at limiting First Amendment rights,

 

as athletics or any other particular segment, rather than, for example, 

consistent belligerence or disorderly conduct at board meetings.

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must properly be categorized so that it may accord with such precedential 

and highly persuasive decisions by this circuit and other courts in Cole, 

Lovern, and Henley—decisions that do not appear to have been 

considered in Barna. In my view, the salient legal distinction is as follows:

in the school district setting, targeted First-Amendment retaliation, as

evidenced in Barna, is distinguishable from generalized facilities ban cases 

reasonably aimed to secure public welfare and ensure pupil safety, as 

employed here and in the antecedent precedential decisions. Such a 

distinction flows from the school district’s broad discretion to regulate its 

day-to-day activities and to ensure the wellbeing of its constituents as it

sees fit, a discretion that judges should resist persistently disturbing where 

such intrusion is not constitutionally warranted.81

 

81 This Court does not mean to imply that a targeted ban on attendance at 

school board meetings will never be appropriate. To the contrary, in cases 

involving persistent disorderly or unlawful conduct at board meetings, such a 

ban is likely appropriate. The reality is, however, that a ban specifically 

targeted at limiting First Amendment rights requires a more narrowly 

tailored implementation and a more explicit justification than does a 

rationally-based, generalized facilities ban aimed at securing the welfare of a 

school district’s pupils and not at curtailing First Amendment rights.

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Even more problematic for Plaintiff here, however, Judge Mariani 

explained that although “the permanent ban imposed by Defendants upon 

Barna prohibiting him from attending public school board meetings . . . 

and from entering upon the property of the School District violates Barna’s 

free speech rights under the First Amendment, . . . Barna’s constitutional 

right to be free of a permanent ban on attending and speaking at School 

Board meetings was not clearly established at the time of the events which 

gave rise to this suit and that accordingly, the Defendants [were] entitled 

to qualified immunity.”82

Therefore, even assuming applicability of the Barna decision here, 

because the events in this case preceded issuance of that opinion, Barna

should not, and did not, influence my determination as to the applicability 

of qualified immunity here. Essentially, even assuming existence of such a 

right, which is a pretty broad assumption for the reasons already stated, 

that hypothetical right was not clearly established before Judge Mariani 

issued Barna. Accordingly and as mandated by the foregoing analysis, the 

 

82 Id.

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complaint should be dismissed with prejudice for the second, independent 

reason that the Defendants enjoy qualified immunity as to Plaintiff’s 

constitutional claims.

C. The Defendants Also Enjoy Absolute Immunity as to 

Plaintiff’s State Law Claims.

Similar to the previous conclusions reached in section III.B as to the 

applicability of qualified immunity to Plaintiff’s constitutional claims, I 

now also conclude that the Defendants are entitled to absolute immunity 

for Plaintiff’s state law claims. 

The Political Subdivision Tort Claims Act grants to municipal 

agencies immunity from liability for all state law tort claims.83 The Act 

provides that “no local agency shall be liable for any damages on account 

of any injury to a person or property caused by any act of the local agency 

or an employee thereof or any other person.”84 A school district and its 

 

83 42 Pa.C.S.A. § 8541 et. seq. See also Smith v. Sch. Dist. of Philadelphia, 112 F. 

Supp. 2d 417, 424 (E.D. Pa. 2000) (DuBois, J.); Martin v. City of Philadelphia, 

et al., No. 99–543, 2000 WL 1052150 (E.D.Pa. July 24, 2000); Wakshul v. City of 

Philadelphia, 998 F.Supp. 585 (E.D.Pa.1998).

84 42 Pa.C.S.A. § 8541.

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board of education are local agencies within the meaning of the Act.85 As 

such, Defendants here are immune from Plaintiff’s state law allegations.

“Pennsylvania common law recognizes the doctrine of absolute 

immunity for ‘high public officials.’”

86 “Absolute privilege, as its name 

implies, is unlimited, and exempts a high public official from all civil suits 

for damages arising out of false defamatory statements and even from 

statements or actions motivated by malice, provided the statements are 

made or the actions are taken in the course of the official’s duties or 

powers and within the scope of his authority, or as it is sometimes 

expressed, within his jurisdiction.”87

Defendants correctly observe that “[i]t is well established that school 

board members are considered ‘high public officials’ and are entitled to 

absolute immunity from state law suits when acting in their official

 

85 Smith, 112 F. Supp. 2d at 424; Kessler v. Monsour et al., 865 F.Supp. 234, 241 

(M.D.Pa.1994) (School District is municipal entity); Carlino v. Gloucester City 

High School, et al., 57 F.Supp.2d 1, 33 (D.N.J.1999).

86 Smith, 112 F. Supp. 2d at (quoting Lindner v. Mollan, 544 Pa. 487, 490–91, 677 

A.2d 1194, 1195–96 (1996)).

87 Matson v. Margiotti, 371 Pa. 188, 193-94, 88 A.2d 892, 895 (1952).

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capacity.”

88 As recently as March 16, 2015, this Court, in Cutler v. 

Bellefonte Area School District, granted a school board member’s motion 

to dismiss a defamation suit on the basis that the board member was 

entitled to absolute immunity.89 In Cutler, I reiterated the principle that 

“[i]n Pennsylvania, high public officials are exempted from ‘all civil suits 

for damages arising out of false defamatory statements and even from 

statements or actions motivated by malice, provided the statements are 

made or the actions are taken in the course of the official’s duties or 

powers.’”

90

“To determine if an individual defendant qualifies as a high public 

official for purposes of absolute immunity, the court must consider, on a 

case-by-case basis, ‘the nature of [the official’s] duties, the importance of 

his office, and particularly whether . . . he has policy-making functions.’”

91

 

88 ECF No. 8 at 17.

89 97 F. Supp. 3d 586, 587 (M.D. Pa. 2015).

90 Id. at 588 (Smith v. Borough of Dunmore, 633 F.3d 176, 181 (3d 

Cir.2011) (Jordan, J.).

91 Cutler, 97 F. Supp. 3d at 589 (quoting Behne v. Halstead, No. 13–0056, 2014 

WL 1689950 at *26 (M.D.Pa. April 29, 2014) (Rambo, J.)).

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“Applying these factors to public school district officials, the late 

Honorable James F. McClure, Jr., of this Court, stated that superintendents 

and school board members ‘entrusted with a policymaking role for the 

School District, are high public officials entitled to absolute immunity from 

state law suits when acting in their official capacity.’”

92

“This entitlement to absolute immunity is unlimited for claims of 

defamation so long as the statements made by the official are made in the 

course of his official duties and within the scope of his authority.”93 The 

defense of absolute immunity applies to claims of intentional infliction of 

emotional distress, slander, and false light invasion of privacy.94 “While 

the initial determination of absolute immunity is a question of law, the 

 

92 Cutler, 97 F. Supp. 3d at 589 (quoting Zugarek v. S. Tioga Sch. Dist., 214 F. 

Supp. 2d 468, 479 (M.D. Pa. 2002)). See also Kohn v. School Dist. of City of 

Harrisburg, 817 F.Supp.2d 487, 512 (M.D.Pa.2011) (Caldwell, J.); Poteat v. 

Harrisburg School Dist., 33 F.Supp.2d 384, 396 (M.D.Pa.1999) (Caldwell, J.).

93 Cutler, 97 F. Supp. 3d at 589.

94 See, e.g., Smith, 112 F. Supp. 2d at 424 (intentional infliction of emotional 

distress); Lindner, 544 Pa. at 495 (slander); McErlean v. Borough of Darby, 157 

F. Supp. 2d 441, 445 (E.D. Pa. 2001) (false light invasion of privacy).

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question of whether the privilege has been abused is to be resolved by a 

jury ‘unless the facts are such that but one conclusion can be drawn.’”

95

I agree with the Defendants that Plaintiff’s complaint plainly sets 

forth that the individual Defendants served as directors on the District’s 

school board when the underlying events transpired. Moreover, the 

complaint is devoid of any allegation suggesting that the Defendants in 

any way exceeded the scope of their roles as school directors. Quite the 

contrary, Plaintiff’s complaint itself sets forth that the decision to ban him 

from District facilities, as well as that decision’s affirmance, both 

transpired by way of official voting procedures during the course of two

school board meetings. 

Likewise, there are simply no allegations in Plaintiff’s complaint that 

the disputed comments were made separate or apart from the elected 

board members’ responsibility of steering official District policy. Instead, a 

fair reading of Plaintiff’s complaint implies the opposite: Defendants 

actions and statements were part and parcel of significant district policy 

 

95 Cutler, 97 F. Supp. 3d at 589 (quoting Montgomery v. City of Philadelphia,

392 Pa. 178, 184 fn. 4, 140 A.2d 100 (1958)).

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decisions. Out of concerns with political accountability and separation of 

powers, the law plainly affords them that right. Absolute immunity 

thereafter requires this Court to refrain from disturbing their judgment.

D. Plaintiff Has Failed to Plausibly State a Claim for 

Intentional Inflection of Emotional Distress.

In addition to the Defendants enjoying absolute immunity as to 

Plaintiff’s state law claims, those state law claims also fail substantively. 

“When a district court’s jurisdiction is predicated on diversity of the 

parties, or when the court hears a state-law claim based on its 

supplemental jurisdiction, as we will assume it did here, the court must 

determine whether, under Erie Railroad Co. v. Tompkins, a matter is 

substantive or procedural.”

96 Then, “if the matter is substantive, the court 

must apply the substantive law of the forum state.”

97 The substantive law 

of the state of Pennsylvania therefore applies to this action.

Under Pennsylvania law, “[t]o state a claim for intentional infliction 

of emotional distress, a plaintiff must plead that the defendant’s conduct: 

 

96 Chin v. Chrysler LLC, 538 F.3d 272, 278 (3d Cir. 2008) (Barry, J.) (citing 304 

U.S. 64 (1938)).

97 Chin, 538 F.3d at 278.

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(1) was intentional or reckless; (2) was extreme and outrageous; 

(3) actually caused the distress; and (4) caused distress that was severe.”

98

“A plaintiff seeking to establish intentional infliction of emotional distress 

must also support his claim with competent medical evidence, because it is 

unwise and unnecessary to permit recovery to be predicated on an 

inference based on the defendant’s outrageousness without expert medical 

confirmation that the plaintiff actually suffered the claimed distress.”

99

“In order to state a cognizable claim, the conduct must be so extreme 

in nature as to go beyond all possible bounds of decency such that it 

would be regarded as utterly intolerable to civilized society.”100

“Generally, the case must be one with respect to which the recitation of 

facts to an average member of the community would arouse his 

resentment against the actor, and lead him to exclaim, ‘Outrageous!’”

101

 

98 Regan v. Twp. of Lower Merion, 36 F. Supp. 2d 245, 251 (E.D. Pa. 1999).

99 Lawson v. Pennsylvania SPCA, 124 F. Supp. 3d 394, 409 (E.D. Pa. 2015) 

(internal quotation marks omitted).

100 Id. (internal quotation marks omitted).

101 Robinson, 246 F. Supp. 2d at 444 (internal quotation marks omitted).

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“The liability clearly does not extend to mere insults, indignities, 

threats, annoyances, petty oppressions, or other trivialities.”

102 “[P]laintiffs 

must necessarily be expected and required to be hardened to a certain 

amount of rough language, and to occasional acts that are definitely 

inconsiderate and unkind.”

103 Thus, it has been said that “[t]here is no 

occasion for the law to intervene in every case where someone’s feelings 

are hurt.”

104 “Perceived unkindness has no remedy at law.”105

Accordingly, a claim for intentional infliction of emotional distress 

must be dismissed where “[t]he defendants’ alleged conduct is simply not 

sufficiently outrageous to sustain a claim of intentional infliction of 

emotional distress.”106 As such, “[w]ith regard to the element of 

outrageousness, it is for the court to determine in the first instance whether 

 

102 Hunger v. Grand Cent. Sanitation, 447 Pa. Super. Ct. 575, 584, 670 A.2d 173, 

177 (1996).

103 Id.

104 Id.

105 Zaloga v. Borough of Moosic, No. 3:10-CV-2604, 2015 WL 3755003, at *11 

(M.D. Pa. June 16, 2015).

106 See Goodson v. Kardashian, 413 F. App’x 417, 418 (3d Cir. 2011).

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the defendant’s conduct may reasonably be regarded as so extreme and 

outrageous to permit recovery.”

107

Remaining faithful to the above legal rules, Plaintiff’s claim for 

intentional infliction of emotional distress must be dismissed. Plaintiff has 

advanced such limited factual allegations, none of which, even when 

considered cumulatively, plausibly gives rise to an inference of outrageous 

conduct on the part of the individual Defendants. 

For support, consider the decision Barrett v. Board of Education. of 

Johnston County, North Carolina in which the United States District Court 

for the Eastern District of North Carolina dismissed an intentional 

infliction of emotional distress claim brought against Johnson County 

school board members by a parent residing in the school district who was 

 

107 Johnson v. Caparelli, 425 Pa. Super. Ct. 404, 412, 625 A.2d 668, 671 (1993). See, 

e.g., Snyder v. Specialty Glass Products, Inc., 658 A.2d 366 (Pa. Super. Ct.

1995) (summary judgment granted in favor of defendant because plaintiff 

employee’s suffering verbal abuse and demotion after arriving late to work 

was not outrageous as a matter of law); Ruder v. Pequea Valley Sch. Dist., 790 

F.Supp.2d 377, 398 (E.D. Pa. 2011) (motion to dismiss granted because

defendant’s failure to provide the plaintiff with medical leave and benefits, 

and its subsequent termination of the plaintiff, was not outrageous as a 

matter of law).

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banned by the board from certain district property.108 In dismissing the 

intentional infliction of emotional distress claim, the district court noted 

that “there is no parental right of access to [the] property and no 

reasonable person could view banning a parent from [the] property as 

violating of any rights.”

109

In another case, Pittman v. Boyd Biloxi, LLC, the United States 

Court of Appeals for the Fifth Circuit affirmed the district court’s grant of 

summary judgment in favor of a defendant casino on an intentional 

inflection of emotional distress claim, where the casino’s security officers 

arrested for trespassing a patron who had previously been banned from 

the casino’s premises.110

Thus, even assuming the ban suffered by Plaintiff in this case was 

unjustified, he has alleged no facts concerning the pertinent school board 

meetings or the ultimate imposition of the ban that even come close to 

 

108 13 F. Supp. 3d 502, 518 (E.D.N.C.), aff’d, 590 F. App’x 208 (4th Cir. 2014).

109 Id.

110 566 F. App’x 344, 348 (5th Cir. 2014).

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plausibly suggesting that the individual Defendants’ conduct was 

outrageous as a matter of law. To hold otherwise would open thousands of 

commonplace school board determinations to second guessing through the 

judicial system. Suffice it to say, that would be an ill-advised outcome. For 

the foregoing reasons, Plaintiff’s intentional inflection of emotional distress 

claim is dismissed with prejudice.

E. Plaintiff Has Failed to Plausibly State a Claim for Slander.

Count VI alleges a claim for slander against Defendant Kovalewski

specifically. Because this claim is also unsupported by fact or law, it too

must be dismissed.

Under Pennsylvania law, “[t]o establish a prima facie claim of 

slander, a plaintiff must establish: (1) the defamatory character of the 

communication; (2) its publication by the defendant; (3) its application to 

the plaintiff; (4) the understanding by the recipient of its defamatory 

meaning; (5) the understanding by the recipient of it as intended to be 

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applied to the plaintiff; (6) special harm resulting to the plaintiff from its 

publication; and (7) abuse of a conditionally privileged occasion.”

111

“However, if the communication in question ‘ascribes to another 

conduct, character, or a condition that would adversely affect his fitness 

for the proper conduct of his business, trade, or profession, [then it] is 

defamatory per se’ and special harm need not be proved.”

112 The same is 

true of per se slanderous statements imputing commission of a criminal 

offense.113 “When presented with a purportedly slanderous

communication, ‘[i]t is the function of the court to determine whether the 

challenged [communication] is capable of defamatory meaning.’”

114

A statement constitutes slander per se as an accusation of business 

misconduct when it describes “conduct, characteristics or a condition that 

would adversely affect his fitness for the proper conduct of his lawful 

 

111 Kovarik v. Downey, No. CIV.A 1:09-CV-1646, 2010 WL 2294523, at *2 (M.D. 

Pa. June 4, 2010) (Conner, J.) (citing 42 PA. Cons. Stat. § 8343).

112 Kovarik, 2010 WL 2294523, at *2 (quoting Pelagatti v. Cohen, 370 Pa. Super. 

422, 536 A.2d 1337, 1345 (Pa. Super. Ct. 1987)).

113 Restatement (Second) of Torts § 570 (1977).

114 Kovarik, 2010 WL 2294523, at *2 (quoting Tucker v. Phila. Daily News, 577 Pa. 

598, 848 A.2d 113, 124 (Pa. 2004)).

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business, trade or profession, or his public or private office.”

115 “The 

imputation must be of such a character as to disparage the other in the 

pursuit of his business, trade, profession or office or tend to harm him in 

it.”116 Thus, to slander a person in a business or professional capacity, a 

statement must be “peculiarly harmful to one engaged in [that] business or 

profession. Disparagement of a general character, equally discreditable to 

all persons, in not enough.”

117

Slander per se involving allegations of criminal conduct requires 

that the alleged offense, if actually committed, be “punishable by 

imprisonment in a state or federal institution” or “regarded by public 

opinion as involving moral turpitude.”

118 “It is enough that the language 

used imputes to the other the criminal offense. On the other hand, it is not 

 

115 Restatement (Second) of Torts § 573 (1977).

116 Id. at Comment c. Compare Illustration 1: “In the presence of A, B tells C, a 

bricklayer, that he is a hypocrite. B is not liable to C without proof of special 

harm.” with Illustration 4: “A, says to B that C, a lawyer, is ignorant and 

unqualified to practice law. A is subject to liability to C without proof of 

special harm.”

117 Id. at Comment e.

118 Restatement (Second) of Torts § 571.

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enough merely to suggest that another is capable of committing a crime or 

that he would commit it if sufficient opportunity were presented. Neither 

is it sufficient to charge another with a criminal intention or design, if no 

criminal act is charged.”

119

As a matter of substantive law, Plaintiff has failed to allege sufficient 

facts plausibly showing that the contested comments satisfy either the 

professional conduct or criminal acts slander per se categories. Recall that 

the underlying comments allegedly made by the Defendant are as follows:

1. “[He] may or may not be out there playing Jerry Maguire.”120

2. “[He] maybe [sic] using kids as pawns.”121

3. “It reminded me in a different way of Kids for Cash, and I 

have no tolerance for that.”122

4. “He’s a shadowy figure.”123

As an initial matter, none of these comments pertain to business 

misconduct. More specifically, none of these statements signify conduct 

 

119 Id. at Comment c.

120 ECF No. 1 at 6 ¶ 27.

121 Id. at ¶ 28.

122 Id. at ¶ 29.

123 Id. at 7 ¶ 37.

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unbefitting of an insurance provider. Perhaps the closest comment would 

be the opinion that Plaintiff was “a shadowy figure.” Clearly that is 

insufficient to trigger the per se rule, however, as such a descriptor is a 

general detractor that could apply to every profession and not solely to the 

one in question. Because the comments are not connected in any manner to 

Plaintiff’s particular business or profession, the only remaining per se

category to consider is that of criminal implication.

Plaintiff contends that the comment concerning a likeness to the 

“Kids for Cash” scandal establishes per se criminal implication. I disagree. 

Though Plaintiff correctly notes that “Kids for Cash” involved a kickback 

scheme by certain judges of the Court of Common Pleas of Luzerne 

County, he is incorrect that the given comment is sufficient to trigger the 

per se rule. First, it is evident that Defendant’s comments state that 

Plaintiff’s conduct “reminded [her] in a different way” of the Kids for Cash 

scandal. There is, however, a sharp distinction between statement of a 

generalized resemblance to nefarious character traits and that of an 

outright accusation or implication of criminal activity. Accordingly, in my 

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view, the Defendant’s comments merely convey a sense that, based upon 

her perception of the recruitment investigation, there existed certain 

qualitative or surface-level similarities between Plaintiff’s conduct and the 

Kids for Cash scandal. Those similarities need not have been, and were not 

clearly expressed by the Defendant to include, illegality. Rather, that

comment relays a sense of secretive, evasive, or less than forthright 

conduct, “shadowy” behavior, as the Defendant termed it. 

Under the standards this Court must apply, to label someone 

dishonest or underhanded or to generally describe them as having 

displayed such characteristics is not to accuse them as a matter of fact of 

committing a felony. The reach of libelous, defamatory, or slanderous 

liability cannot be so broad as to chill productive discourse. Accordingly, 

Plaintiff’s claim for slander must also be dismissed.

F. Plaintiff Has Failed to Plausibly State a Claim for False 

Light Invasion of Privacy.

Count VII alleges a claim for false light invasion of privacy against 

Defendant Kovalewski. Because this claim is also unsupported by fact or 

law, it must be dismissed.

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To plausibly state a claim of false light invasion of privacy under

Pennsylvania law, a plaintiff must allege “(1) publicity, (2) given to private 

facts, (3) which could be highly offensive to a reasonable person, and 

(4) which are not of legitimate concern to the public.”124 That said, “the 

contours of this tort remain amorphous.”125

“A reasonable person understands, and takes into account, the 

difference we have discussed above between a statement of fact and one of 

opinion.”

126 “[A] sincere statement of pure opinion is not an untrue 

statement of material fact.”127 Consequently, “expressions of ‘opinion’ may 

often imply an assertion of objective fact”128

 

124 Wallace v. Media News Grp., Inc., 568 F. App’x 121, 127 (3d Cir. 2014) (citing 

Rush v. Philadelphia Newspapers, Inc., 1999 Pa. Super. 141, 732 A.2d 648 

(1999)). See also Smith v. Borough of Dunmore, 633 F.3d 176, 182 (3d Cir. 

2011) (Jordan, J.).

125 In re Lansaw, 424 B.R. 193, 197 (Bankr. W.D. Pa. 2010).

126 Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension Fund, 135 S. 

Ct. 1318, 1328, 191 L. Ed. 2d 253 (2015) (Kagan, J.).

127 Id. at 1327 (internal quotation marks omitted).

128 Milkovich v. Lorain Journal Co., 497 U.S. 1, 18, 110 S. Ct. 2695, 2705, 111 L. Ed. 

2d 1 (1990).

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“The element of ‘publicity’ requires that the matter is made public, 

by communicating it to the public at large, or to so many persons that the 

matter must be regarded as substantially certain to become one of public 

knowledge.”

129 “While the intentional or negligent communication of 

defamatory matter to a single person (or to a newspaper) might constitute 

a ‘publication’ in the context of an action for defamation, that does not 

concern us here.”

130 “The ‘publicity’ which we here examine requires that 

the matter is made public by communicating it to the public at large, or to 

so many persons that the matter must be regarded as substantially certain 

to become one of public knowledge. Where a communication involving 

private facts reaches, or is sure to reach, the public, then publicity has been 

given to that party’s private life.”

131

“In considering whether publicity is highly offensive, one must ask 

whether the plaintiff, as a reasonable man, would be justified in the eyes of 

 

129 Harris by Harris v. Easton Pub. Co., 335 Pa. Super. 141, 154, 483 A.2d 1377, 

1384 (1984).

130 Id. at 155 (internal citation omitted).

131 Id.

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the community in feeling seriously offended and aggrieved by the 

publicity.”132 “The plaintiff must also prove that the defendant either had 

knowledge of the falsity of the statements or acted in reckless disregard of 

the falsity of the statements. Mere negligence is insufficient.”133

“[T]he element of falsity is met if the plaintiff alleges that the 

defendant knowingly or recklessly selectively printed or broadcast true 

statements or pictures in a manner which created a false impression.”

134

“Significantly, unlike the law of defamation, false light invasion of privacy 

offers redress not merely for the publication of matters that are provably 

false, but also for those that, although true, are selectively publicized in a 

manner creating a false impression.”

135

 

132 In re Lansaw, 424 B.R. at 198.

133 Id.

134 Larsen v. Philadelphia Newspapers, Inc., 375 Pa. Super. 66, 82–83, 543 A.2d 

1181, 1189 (1988).

135 Krajewski v. Gusoff, 2012 PA Super 166, 53 A.3d 793, 806 (2012) (internal 

citation omitted).

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Relatedly, “a false light/invasion of privacy claim is not dependent 

on whether the publicized facts concern the private life of the plaintiffs.”

136

Thus, “recovery in tort for the disclosure of public, as well as private, facts, 

even though they be true, is warranted to protect a claimant’s right to be 

free from being placed in a false light and incurring the resultant mental 

suffering, shame or humiliation which may be caused by the discriminate 

publication of such facts.”

137

“The final element exempts from liability those facts which are of 

legitimate concern to the public, such as official court records open to 

public inspection.”

138 “This also applies to persons who, voluntarily or 

involuntarily, have become public figures and may also apply to certain 

private facts relating to those public figures, such as the life history of one 

accused of a sensational crime, and even to the members of that person’s 

family.”

139

 

136 In re Lansaw, 424 B.R. at 200.

137 Larsen, 375 Pa. Super at 82.

138 Harris by Harris, 335 Pa. Super. at 156 (internal citation omitted).

139 Id. (internal citations omitted).

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Plaintiff’s false light claim will be dismissed for several reasons. 

First, the alleged statements are more appropriately construed as 

Defendant Kovalewski’s opinions, distinct from facts. The underlying 

comments allegedly made by the Defendant are again as follows:

1. “[He] may or may not be out there playing Jerry Maguire.”140

2. “[He] maybe [sic] using kids as pawns.”141

3. “It reminded me in a different way of Kids for Cash, and I 

have no tolerance for that.”142

4. “He’s a shadowy figure.”143

The Court reads each of those quotations as expressing the 

Defendant’s opinion as to Plaintiff’s alleged conduct or at the very least, 

implying exceedingly generalized and non-specific notions about 

Plaintiff’s conduct. At the outset, I note the evidently equivocal and 

perception-based character of the comments as support.

 

140 ECF No. 1 at 6 ¶ 27.

141 Id. at ¶ 28.

142 Id. at ¶ 29.

143 Id. at 7 ¶ 37.

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Moreover, Plaintiff has failed to allege any factual plausibly 

supporting his contention that Defendant was aware that the underlying 

statements were false (or true and intended to cast Plaintiff in a false light) 

or that Defendant acted with reckless disregard in verbalizing the

statements. “To prevail on a claim of ‘false light,’ a plaintiff ‘must show 

that a highly offensive false statement was publicized by [defendants] with 

knowledge or in reckless disregard of the falsity.’”

144 Plaintiff has proffered 

no allegations suggesting that Defendant’s comments were in any way 

based on something more than her rationally-based perceptions or the 

findings associated with the broader investigation into the District’s 

recruitment scandal. 

Moreover, Plaintiff’s false light claim should be dismissed because 

the underlying statements speak to a matter of legitimate public concern. 

In Rush v. Philadelphia Newspapers, Inc., for example, the Pennsylvania 

Superior Court determined that the false light invasion of privacy “cause 

of action must fail” in a case about publicized statements involving official 

 

144 Taha v. Bucks Cty., 9 F. Supp. 3d 490, 493 (E.D. Pa. 2014) (quoting Santillo v. 

Reedel, 430 Pa. Super. 290, 295, 634 A.2d 264, 266 (1993)).

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school board actions, the awarding of school district contracts, and the 

appointment of school board members in the Philadelphia School 

District.

145 The Superior Court wrote that “[i]mportantly, this is a matter of 

legitimate concern to the general public.” 

The remarks in Rush were a matter of public concern because they 

were made in connection with districtwide efforts to eliminate patronage 

and reduce a significant budget deficit.146 “It cannot be gainsaid,” the 

Superior Court wrote, “that the general public has an interest in and a 

right to know about their public school system.”

147 Therefore, it concluded 

that summary judgment was appropriately granted as to the false light 

invasion of privacy claim.148

As in Rush, Defendant Kovalewski’s statements spoke to the 

appropriate functioning of the District, the bases for her and the other 

board members having taken official action, the direction and vitality of 

 

145 1999 PA Super 141, 732 A.2d 648, 650 (1999).

146 1999 PA Super 141, ¶ 16, 732 A.2d 648, 654.

147 Id.

148 Id.

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the District’s football program, as well as the welfare of student-athletes 

residing within or around the District’s geographic bounds. Consistent 

with the foregoing reasons, Plaintiff’s false light claim is dismissed.

G. Plaintiff’s Complaint Is Dismissed with Prejudice because 

Further Amendment Would Be Futile.

Federal Rule of Civil Procedure 15 sets forth the mechanisms for 

amending a pleading prior to trial. Section 15(a)(1) applies to amendments 

as a matter of course. Amendment as a matter of course is inapplicable 

here, because Plaintiff elected not to make such an amendment within the 

two time periods provided for in that section. Section 15(a)(2), entitled 

“Other Amendments,” explains that “[i]n all other cases, a party may 

amend its pleading only with the opposing party’s written consent or the 

court’s leave. The court should freely give leave when justice so requires.”

The Third Circuit has “previously discussed when a court may deny 

leave to amend under Rule 15(a)(2).”149 In Shane v. Faver, for example, 

then Circuit Judge Samuel A. Alito, Jr. stated that “[a]mong the grounds 

that could justify a denial of leave to amend are undue delay, bad faith, 

 

149 Holst v. Oxman, 290 F. App’x 508, 510 (3d Cir. 2008).

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dilatory motive, prejudice, and futility.”150 “‘Futility’ means that the 

complaint, as amended, would fail to state a claim upon which relief could 

be granted.”

151 “In assessing futility, the District Court applies the same 

standard of legal sufficiency as applies under Rule 12(b)(6).”

152

“Moreover, substantial or undue prejudice to the non-moving party 

is a sufficient ground for denial of leave to amend.”

153 “The issue of 

prejudice requires that we focus on the hardship to the defendants if the 

amendment were permitted.”

154 “Specifically, we have considered whether 

allowing an amendment would result in additional discovery, cost, and 

preparation to defend against new facts or new theories.”

155

 

150 213 F.3d 113, 115 (3d Cir. 2000) (quoting In re Burlington Coat Factory Sec. 

Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (Alito, J.).

151 Shane, 213 F.3d at 115.

152 Id.

153 Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001).

154 Id.

155 Id.

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“The decision to grant or deny leave to amend a complaint is 

committed to the sound discretion of the district court.”156 “Factors the trial 

court may appropriately consider in denying a motion to amend include 

undue delay, undue prejudice to the opposing party, and futility of 

amendment.”157 For instance, “if the proposed change clearly is frivolous 

or advances a claim or defense that is legally insufficient on its face, the 

court may deny leave to amend.”158

As previously outlined, Plaintiff’s complaint suffers from a panoply 

of legal defects that further factual supplementation simply cannot rectify. 

As an initial matter, Plaintiff failed to plausibly plead substantive 

constitutional or state law violations. Subsequently, he advanced no 

argument as to the inapplicability of qualified or absolute immunity.

 

156 Coventry v. U.S. Steel Corp., 856 F.2d 514, 518 (3d Cir. 1988). 

157 Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1203 (3d Cir. 1989) (quoting 

Foman, 371 U.S. at 182. 

158 Ross v. Jolly, 151 F.R.D. 562, 565 (E.D. Pa. 1993) (citing 6 Wright, Miller, & 

Kane, Federal Practice & Procedure: Civil 2d § 1487). See also Vosgerichian v. 

Commodore Int’l Ltd., No. Civ. A. 92-CV-4867, 1998 WL 966026, at * 3 (E.D. 

Pa. Nov 6, 1998) aff’d sub nom Vosgerichian v. Commodore Int’l, 191 F.3d 446 

(3d Cir. 1999).

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For these reasons, I find that amendment would be futile and would 

prejudice Defendants. At this point, it is evident that, due to the legal 

defects present in Plaintiff’s case theory, further amendment would still

leave the complaint deficient as a matter of law. Relatedly, in light of the 

case’s evident lack of merit, requiring counsel for the Defendants to brief 

for second, third, or fourth iterations, the very legal questions that have 

quite thoroughly briefed the first time around would unduly prejudice 

their clients. Accordingly, further amendment will not be permitted.

IV. CONCLUSION

Consistent with the foregoing reasoning, Defendants’ Motion to 

Dismiss is granted. Because further amendment would be futile, the 

motion is granted with prejudice.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann 

Matthew W. Brann 

United States District Judge

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