IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ethan Clemens, :

Petitioner :

:

v. :

:

Pennsylvania State Police and :

Lieutenant Colonel Lisa Christie :

(Individually and in her capacity as :

Lieutenant Colonel of the Pennsylvania :

State Police), : No. 59 M.D. 2018

Respondents : Argued: November 14, 2019

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: February 7, 2020

Ethan Clemens (Clemens) filed a Petition for Review (Petition) in our 

original jurisdiction seeking a writ of mandamus to compel the Pennsylvania State 

Police (PSP) and Lieutenant Colonel Lisa Christie (Lt. Col.) to reinstate Clemens as 

a cadet at the Pennsylvania State Police Academy (Academy). The PSP and the Lt. 

Col. filed preliminary objections in the nature of a demurrer, which are now before 

the Court for disposition.1 Upon review, we sustain the PSP and the Lt. Col.’s 

preliminary objections in the nature of a demurrer and dismiss the Petition. 

 

1

In ruling upon preliminary objections in the nature of a demurrer, we must accept as true 

all well-pleaded allegations of material fact and all inferences reasonably deductible therefrom. 

Evans v. Pa. Bd. of Prob. & Parole, 820 A.2d 904, 906 n.3 (Pa. Cmwlth. 2003) (citing Myers v. 

Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998)). We do not have to accept as true conclusions of 
2

Factual Background

On September 14, 2015, Clemens entered the Academy as a member of 

the 144th class of cadets, with an anticipated graduation date of on or about March 

18, 2016. Petition ¶¶ 11 & 14. To graduate from the Academy and become a PSP 

trooper, the cadets had to, in relevant part, attend classes and perform satisfactorily 

on tests pertaining to certain areas of law enforcement including traffic law. Id. ¶¶ 

15-19. Of relevance here, the fourth traffic law examination (Traffic 4) was 

scheduled for November 30, 2015. Id. ¶ 20. 

To prepare for Traffic 4, Clemens alleges that the Academy did not 

prohibit the use of study guides and, in fact, “even encouraged” cadets to use study 

guides authored by themselves or others, and the cadets were permitted to write notes 

in their criminal justice handbooks. Petition ¶¶ 23-24. On the evening before Traffic 

4, Clemens alleges that he obtained from another cadet in his class a study guide for 

the test, which was a copy of handwritten notes. Id. ¶¶ 25-26. Clemens “looked 

only at the first page of the study guide” because that page contained material

“similar to the information presented at the review session provided by [his]

instructor.” Id. ¶ 27. Clemens “took some notes on a piece of notebook paper” from 

the first page of the study guide and returned it to the cadet, though he prepared for 

Traffic 4 by relying on his own notes. Id. ¶ 28. Clemens alleges that he did not use 

any other study guides for Traffic 4. Id. ¶ 29.

After taking Traffic 4, Clemens alleges that in mid-December 2015, a 

PSP officer visited one of his classes and held up to the class a “cheat sheet” for 

Traffic 4 that had been found in the hallway at the Academy. Petition ¶¶ 31 & 39. 

 

law, unwarranted inferences, argumentative allegations or expressions of opinion. Id. “The test 

is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts 

legally sufficient to establish his or her right to relief.” Id.
3

The PSP officer asked the class who “had been in possession of” the cheat sheet. Id. 

¶ 32. A few weeks later, another PSP officer addressed the cadets in the class again 

about the cheat sheet and indicated that “anyone with knowledge of [it] should come 

forward” while several other PSP members inspected the cadets’ books. Id. ¶ 33. 

“During this time period, at least one cadet approached one of the PSP officers who 

[had] spoken to the 144th [c]lass about the [cheat sheet], showed study guides to that 

officer, and confirmed that such study guides were permissible, and not what was 

being investigated.” Id. ¶ 34. 

After the New Year holiday, the Academy had an assembly with the 

cadets of the 144th class in the auditorium. Petition ¶ 35. At the assembly, the Lt. 

Col. and another PSP officer addressed the cadets about the cheat sheet. Id. ¶ 36. 

The Lt. Col. indicated that “if no one came forward with information about the [cheat 

sheet] by 4pm [sic], the PSP would interview and polygraph all the cadets in the 

144th [c]lass.” Id. The cadets were restricted to the Academy until further notice, 

they were not allowed outside contact for three days, and the PSP staff confiscated 

their phones and books. Id. ¶ 37. Shortly after the assembly, Cadet Vogle admitted 

that the cheat sheet belonged to him and he was dismissed, along with another cadet 

connected to the cheat sheet. Id. ¶¶ 38 & 44. After Cadet Vogle came forward, the 

PSP conducted an internal investigation and interviewed every cadet in the 144th

class with respect to “cheating.” Id. ¶ 41. 

In his Petition, Clemens alleges that he never saw, used, or discussed 

the content of the cheat sheet before sitting for Traffic 4. Petition ¶ 40. Clemens 

further alleges that during his interview with the PSP, he was shown the cheat sheet 

and “denied any use of, or access to, that sheet[,]” though he disclosed his use of the 

study guide, which was “wholly different” from the cheat sheet. Id. ¶ 43. Clemens 
4

alleges that about a month before graduation, on February 4, 2016, he met with two 

PSP captains but was not afforded the opportunity to defend himself or have 

representation present, nor was any evidence presented or discussed. Id. ¶¶ 54-56. 

Rather, Clemens alleges that the meeting had a “pre-determined outcome,” which 

was to force Clemens to sign the “pre-prepared termination” letter dated February 

11, 2016. Id. ¶¶ 51 & 56. PSP publicized the names of the graduating cadets, which 

did not include Clemens. Id. ¶ 57. 

Thereafter, the Commonwealth’s Office of Inspector General (OIG) 

conducted an investigation of the cheating at the Academy and published its findings 

in a report made public in February 2017.2 Petition ¶¶ 61 & 64. The OIG’s report 

found that the problem at the Academy was not the cheating by the cadets but the 

policies of the “PSP, its staff and instructors.” Id. ¶ 73. Based on the foregoing 

allegations of fact, Clemens brings two claims against the PSP and the Lt. Col. in 

his Petition relating to his discharge. 

 

2 Specifically, the OIG report stated, in relevant part: 

[t]he evolved culture within the Academy up to the 144th [c]adet 

[c]lass appears to have permitted the sharing within cadet classes 

and between cadet classes of information concerning Academy 

examinations, in some cases questions and answers. This is shown 

through some of the so-called “study guides” that the OIG found 

during its review, some of which members of earlier Academy 

classes passed to members of the 144th [c]adet [c]lass. Because 

over time the Academy rarely changed examination questions and 

correct answers, this essentially transformed some study guides into 

cheat sheets for future Academy classes. . . . It is unclear to the OIG 

whether the PSP investigators who initially reviewed the [c]adets’ 

actions were aware of, and appreciated, this culture at the time of 

their investigations. . . . 

Petition Ex. A, OIG Investigative Report at 33-34.
5

In Count I, Clemens alleges wrongful discharge in violation of the 

public policy embodied in PSP Field Regulation (F.R.) 1-2, Section 2.02 

(5/16/2017), requiring members to be responsible for their own acts, and asks this 

Court for a writ of mandamus to compel the PSP and the Lt. Col. to withdraw his 

termination and permit him to rejoin as a cadet in the next class at the Academy. 

Petition ¶¶ 77-78 & 89. Alternatively, in Count II, Clemens alleges a claim under 

42 U.S.C. § 1983 (Section 1983) for deprivation of his liberty interest in reputation 

secured by the 14th Amendment to the United States Constitution, U.S. Const. 

amend. XIV, § 1, without due process of law and seeks a name-clearing hearing. Id. 

¶¶ 91, 104 & 106. 

The PSP and the Lt. Col. responded by filing three preliminary 

objections in the nature of a demurrer. First, the PSP and the Lt. Col. assert that 

Clemens cannot prevail on his claim for wrongful discharge because he does not 

have a clear legal right to the relief he seeks, which is to require the PSP and the Lt. 

Col. to withdraw his discharge. See Preliminary Objections by [Respondents] to the 

Petition for Review (Objections) ¶ 13. Next, the PSP and the Lt. Col. argue that 

Clemens cannot prevail on his claim for deprivation of liberty interest because he 

failed to “assert any actual harm that has occurred to his reputation” and he cannot 

demonstrate that he has a clear right to a name-clearing hearing when he alleges that 

he had an opportunity before the PSP officials to refute the charge of cheating. Id. 

¶¶ 19, 23 & 27. Third, the PSP and the Lt. Col. argue that Clemens’ Section 1983 

claim for deprivation of liberty interest cannot proceed because the PSP and the Lt. 

Col. are not subject to suit and Clemens did not plead any facts showing the Lt. 

Col.’s personal involvement. Id. ¶¶ 33, 34, & 39-40. In response, Clemens opposed 

the PSP and the Lt. Col.’s preliminary objections. See Answer of [Petitioner] in 
6

Opposition to the Preliminary Objections by [Respondents] to the Petition for 

Review. 

Upon review, we agree that Clemens’ claim for wrongful discharge 

cannot proceed because he asks this Court to direct the PSP and the Lt. Col. to 

reverse action taken in the exercise of discretion, which we cannot do, and 

additionally he fails to allege a clear legal right to relief required for his writ of 

mandamus claim to proceed. Further, Clemens’ Section 1983 claim for deprivation 

of liberty interest in reputation against the PSP and the Lt. Col. cannot proceed as a 

matter of law because he fails to allege facts showing harm to his reputation to 

support his claim.

Count I: Wrongful Discharge 

First, Clemens asserts a claim for wrongful discharge in violation of a 

public policy embodied in Field Regulation 1-2, Section 2.02, which requires 

members to be responsible for their own acts and not attempt to shift to others the 

burden of responsibility for executing or failing to execute a police duty. Petition ¶¶ 

76-87. Clemens argues that the OIG report identified that the problem giving rise to 

the cadets’ cheating was not the cadets’ actions but, instead, the Academy culture 

where PSP instructors and staff “routinely” provided cadets with the questions and 

answers to the questions that were to appear on upcoming examinations and the 

failure of the PSP instructors and staff to modify examinations for successive 

Academy classes. Id. ¶¶ 81-84. Clemens argues that the PSP and the Lt. Col. 

arbitrarily exercised their discretion and improperly shifted their violations and 

failures to Clemens, and other cadets like him, when they terminated him for 

cheating, but he did not cheat. Id. ¶ 87. Clemens contends that allowing the 

discharge to stand violates the public policy incorporated in Field Regulation 1-2, 
7

Section 2.02. Id. ¶ 86. Clemens further contends that he lacks an adequate remedy 

at law and, therefore, asks this Court to issue a writ of mandamus to compel the PSP 

and the Lt. Col. to withdraw Clemens’ discharge and permit him to rejoin as a cadet 

in the next class at the Academy. Id. ¶ 89. 

Mandamus is an extraordinary remedy that compels the official 

performance of a ministerial act or a mandatory duty. Nickson v. Pa. Bd. of Prob. 

& Parole, 880 A.2d 21, 23 (Pa. Cmwlth. 2005); Evans v. Pa. Bd. Prob. & Parole, 

820 A.2d 904, 914 (Pa. Cmwlth. 2003). This Court has previously explained: 

[I]n an action in mandamus involving an administrative 

agency’s exercise of discretion, we may only direct the 

agency to perform the discretionary act; we may not direct 

the agency to exercise its judgment or discretion in a 

particular way or direct the retraction or reversal of 

action already taken. A writ of mandamus may be issued 

only where there is a clear legal right in the [petitioner], 

a corresponding duty in the [respondent], and lack of any 

other appropriate and adequate remedy. The purpose of 

mandamus is not to establish legal rights, but to enforce 

those rights already established. 

Evans, 820 A.2d at 914-15 (emphasis added). 

Here, the relief sought by Clemens in his wrongful termination claim is 

to “compel” the PSP and the Lt. Col. to withdraw the termination of Clemens and 

permit him to rejoin as a cadet at the Academy. Petition ¶ 89. We cannot, however,

order the reversal of Clemens’ alleged termination and reinstate Clemens as a cadet 

because we cannot direct the reversal of action already taken within the exercise of 

the administrative agency’s discretion. See Evans, 820 A.2d at 915. 

Section 205(f) of The Administrative Code of 1929 (Code), Act of 

April 9, 1929, P.L. 177, as amended, 71 P.S. § 65(f), governs Clemens’ employment 

as a new cadet and provides:
8

All new cadets and troopers shall serve a probationary 

period of eighteen months from the date of original 

enlistment, during which time they may be dismissed by 

the [PSP] Commissioner for violations of rules and 

regulations, incompetency, and inefficiency without 

action of a court martial board or the right of appeal to a 

civil court.

(Emphasis added.) As plainly stated, Clemens as a cadet, or probationary employee, 

“may” be dismissed by the PSP Commissioner for violations of rules and regulations 

without action of a court martial board or the right of appeal to a civil court. Id. By 

use of the term “may” and by providing for no review of the PSP Commissioner’s 

decision via hearing or otherwise, the legislature indicated its intention that “the 

decision to discharge has been committed to the discretion of the employer[,]” as the 

employee has no property right in continued employment. Pipkin v. Pa. State Police, 

693 A.2d 190, 193 (Pa. 1997) (emphasis added); accord Graham v. Pa. State Police, 

634 A.2d 849, 851 (Pa. Cmwlth. 1993); Marino v. Pa. State Police, 486 A.2d 1033,

1034 (Pa. Cmwlth. 1985) (holding that a new cadet does not have a property interest 

in continued employment, and therefore, the legislature did not wish to afford cadets 

an opportunity to be heard thereby leaving the decision to terminate to the discretion 

of PSP without review by this Court). Because the decision to discharge a cadet has 

been committed to the discretion of the PSP Commissioner, this Court cannot “direct 

the retraction or reversal of action already taken,” that is, we cannot order a reversal 

of Clemens’ termination and a reinstatement of his employment as a cadet in a 

mandamus action. See Evans, 820 A.2d at 915; Hunt v. Pa. State Police, 400 A.2d 

907, 909 (Pa. Cmwlth. 1979) (explaining that once an agency has exercised its 

discretion, “a party [that] is dissatisfied with the result may not seek to compel a 
9

different result through mandamus; for mandamus does not lie to review a 

discretionary act, nor to compel a particular result in a process involving the exercise 

of discretion”). 

Nevertheless, Clemens argues that the mandamus remedy is broader 

than the PSP and the Lt. Col. assert. Clemens’ Brief at 14. Clemens contends that 

this Court can grant him mandamus relief because the courts will review the exercise 

of a government actor’s discretion where it is arbitrary or fraudulently exercised or 

based upon a mistaken view of the law or to determine if constitutional rights have 

been violated.3 Id. at 15. Clemens asserts that his claim for wrongful discharge 

shows that the PSP and the Lt. Col. acted “arbitrarily and under mistaken view of the 

law in discharging him in violation of a clear mandate of public policy.” Id. at 16 

(emphasis added). 

Clemens does not cite any law to support his assertion that he has a 

clear legal right to relief. Instead, Clemens relies on the PSP Field Regulation to 

support his assertion that it establishes a “clear mandate of public policy.” 

Section 2.02 provides, in pertinent part:

Members shall also be held responsible for the proper 

performance of all duties assigned to them; the appropriate 

use of delegated authority; and strict adherence to the 

rules, regulations, and directives promulgated by the 

Department. Ignorance of the rules, regulations, and 

directives shall not be considered an excuse or justification 

for any violation of such by a member. Members shall be 

responsible for their acts and shall not attempt to shift the 

burden of responsibility for executing or failing to execute 

a lawful order or police duty. . . . 

 

3 We note that in Count II, Clemens asks for mandamus relief for the violation of his liberty 

interest in reputation but he fails to allege facts to support this claim. See discussion infra pp. 10-

15.
10

 

PSP F.R. 1-2, § 2.02 (emphasis added). The purpose of the PSP Field Regulation is 

to “establish policy and guidelines regarding duty requirements for the conduct of 

members.” PSP F.R. 1-2, § 2.01 (emphasis added). The Field Regulation is, by its 

terms, a “policy and guideline[]” developed by the PSP, an executive agency, to 

govern the conduct of its members; therefore, it does not and cannot confer a legal 

right to probationary employees. See Shore v. Dep’t of Corr., 168 A.3d 374, 386 

(Pa. Cmwlth. 2017) (explaining that allegations made by inmate that the Department 

of Corrections failed to follow its regulations or internal policies cannot support a 

claim based on a vested right or duty); see also Tindell v. Dep’t of Corr., 87 A.3d 

1029, 1034-35 (Pa. Cmwlth. 2014) (rejecting argument that policies and regulations 

adopted by agency create enforceable rights because “[a]dministrative regulations 

are not statutes or constitutional provisions”). Clemens has not established a clear 

legal right to relief necessary for his mandamus action for wrongful termination to 

proceed. For the foregoing reasons, we sustain the PSP and the Lt. Col.’s 

preliminary objection as to Count I of the Petition asserting wrongful discharge. We 

now turn to Clemens’ alternative claim. 

Count II: Section 1983 Claim-Deprivation of Liberty Interest

Alternatively, in Count II of his Petition, Clemens asserts a claim under 

42 U.S.C. § 19834for a deprivation of his liberty interest in his reputation without 

due process as required by the 14th Amendment to the United States Constitution, 

U.S. Const. amend. XIV, § 1. Petition ¶¶ 91-104. Clemens asserts that the PSP and 

 

4 To maintain an action under Section 1983, Clemens must allege that a person or persons 

deprived him of his constitutional rights while acting under color of state law. Robles v. Pa. Dep’t 

of Corr., 718 A.2d 882, 883 (Pa. Cmwlth. 1998). A Section 1983 action does not create any 

substantive rights, but merely serves as a vehicle or device by which a citizen is able to challenge 

conduct by a state official whom he claims has deprived him of his civil rights. Id.
11

the Lt. Col. created a “false and stigmatizing impression” of him as a “cheater, or 

dishonest person, in connection with his termination” from the Academy, thereby 

depriving his liberty interest in reputation and entitling him to “due process, in the 

form of, at a minimum, a name-clearing hearing.” Id. ¶¶ 96 & 106. 

To state a claim under 42 U.S.C. § 1983, a petitioner “must establish 

that [he was] deprived of a right secured by the Constitution or laws of the United 

States, and that the alleged deprivation was committed under color of state law.” 

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The 14th

Amendment of the United States Constitution5requires due process where a state 

seeks to deprive a person of a life, liberty or property interest. Pa. Game Comm’n

v. Marich, 666 A.2d 253, 255 (Pa. 1995). Reputational interests alone are 

insufficient to invoke federal due process protections. R. v. Dep’t of Pub. Welfare, 

636 A.2d 142, 149 (Pa. 1994) (citing Paul v. Davis, 424 U.S. 693 (1976)). A 

petitioner can establish a deprivation of liberty interest in reputation if he makes a 

showing of a “reputational stigma plus deprivation of another protected right or 

interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). The 

“stigma” is the creation and dissemination of a false and defamatory impression and 

the “plus” is the termination or the “alteration or extinguishment” of a right or status 

previously recognized by law. Id. The stigma-plus test has been applied in the 

public employment context to mean that when an employer creates and disseminates 

a false and defamatory impression about the employee in connection with his 

termination, it deprives the employee of a protected liberty interest. See Smith v. 

Engler (E.D. Pa., No. 15-6542, filed June 14, 2018), slip op. at ___, 2018 WL 

 

5 Section 1 of the 14th Amendment provides, in relevant part, that: “nor shall any state 

deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. 

XIV, § 1.
12

2984861, at *13 (citing Hill). The right that is accorded is an opportunity to refute 

the charges and clear one’s name. Id. Although this Court has not addressed a nameclearing hearing as applicable relief, the Third Circuit held that a public employee 

who is defamed in the course of being terminated or constructively discharged can 

bring a claim for a post-termination name-clearing hearing and satisfies the stigmaplus test even if, as a matter of state law, he lacks a property interest in the job he 

lost. See Hill, 455 F.3d at 238; see also Graham v. Johnson, 249 F. Supp. 2d 563, 

568 (3d Cir. 2003) (concluding that a lack of protectible property interest in 

employment with the Philadelphia Police Department does not preclude employee 

from bringing a claim for a post-termination name-clearing hearing).

However, to satisfy the stigma-plus test, Clemens must allege facts

showing harm to his reputation, that is, a false and stigmatizing statement about him 

was published or disseminated. See Hill, 455 F.3d at 236 (explaining that to satisfy 

the “stigma” prong of the test, it must be alleged that the purportedly stigmatizing 

statement(s) . . . were made publicly”)). Clemens alleges that a false and 

stigmatizing impression of him as a cheater is memorialized in his termination letter 

and file, but this is not sufficient to support the publication requirement. See Bishop 

v. Wood, 426 U.S. 341, 348 (1976) (explaining that the reasons for the discharge 

must be made public to form a basis for the conclusion that the employee’s “good 

name, reputation, honor, or integrity” was impaired to support a deprivation of 

liberty interest claim). Although Clemens cites to cases from other federal circuit

courts to support his position,6the United States Court of Appeals for the Third 

 

6

See, e.g., Brandt v. Bd. of Coop. Educ. Servs., 820 F.2d 41, 45 (2d Cir. 1987) (explaining 

that if the plaintiff “is able to show that prospective employers are likely to gain access to his 

personnel file and decide not to hire him, then the presence of the charges in his file has a damaging 

effect on his future job opportunities[,]” and therefore, the “presence of the charges in his personnel 

file coupled with a likelihood of harmful disclosure” are sufficient to meet the publication 
13

Circuit7 has explained that simply depositing material into an employee’s personnel 

file does not meet the publicity requirement, as there must be a dissemination of the 

contents of the personnel file to prospective employers, or others, to support a 

deprivation of liberty interest claim. See Copeland v. Phila. Police Dep’t, 840 F.2d 

1139, 1148 (3d Cir. 1988) (explaining that to succeed on a claim based on 

deprivation of liberty interest, the petitioner must establish that the reason for his 

termination was made public); see also Cooley v. Pa. Hous. Fin. Agency, 830 F.2d 

469, 473-75 (3d Cir. 1987), abrogated on other grounds by Foster v. Chesapeake 

Ins. Co., 933 F.2d 1139, 1148 (3d Cir. 1991) (holding that a termination letter placed 

in an employee’s personnel file is not sufficient to support a deprivation of liberty 

 

requirement); see also Sciolino v. City of Newport News, 480 F.3d 642, 650 (4th Cir.) cert. denied, 

552 U.S. 1076 (2007) (holding that the plaintiff must allege a likelihood that prospective 

employers or the public at large will inspect the personnel file).

We further note that Clemens cites Morgan v. Covington Township, 648 F.3d 172, 181 (3d 

Cir. 2011), and asserts that the “Third Circuit cited Brandt, with apparent approval, for the 

proposition that the placement of a termination letter in the plaintiff’s personnel file can constitute 

public disclosure or ‘publicity’ only where the plaintiff can show the file is likely to be disclosed 

to prospective employers.” Clemens’ Brief at 32 n.10. We disagree as Morgan does not concern 

a personnel file and cites to Brandt only for the proposition that the plaintiff had to produce 

evidence to show an instance of publication. In Morgan, the Third Circuit affirmed the district 

court’s finding that summary judgment was appropriate because Morgan failed to produce 

evidence to “identify any instance in which any defendant publicly accused him of a crime.” 

Morgan, 648 F.3d at 175. In so concluding, the Third Circuit relied on Hill, 455 F.3d at 236, a 

later decided Third Circuit case, and stated that “Morgan would have to show that [the defendant]

publicized a false, stigmatizing statement about him” to withstand summary judgment. Morgan, 

648 F.3d at 181. 

7 We are not obligated to follow the decisions of federal district and intermediate appellate 

courts on issues of federal law as they are persuasive precedent. Commonwealth v. Hicks, 208 

A.3d 916, 936 n.13 (Pa. 2019); Hall v. Pa. Bd. of Prob. & Parole, 851 A.2d 859, 863-65 (Pa. 

2004); West Chester Area Sch. Dist. v. A.M., 164 A.3d 620, 630 (Pa. Cmwlth. 2017). Though we 

are not bound to follow the Third Circuit Court of Appeals, “when possible, it is appropriate for a 

Pennsylvania appellate court to follow the Third Circuit’s ruling on federal questions to which the 

U.S. Supreme Court has not yet provided a definitive answer.” West Chester Area Sch. Dist., 164 

A.3d at 630. 
14

interest claim because there must be an actual dissemination of the defamatory letter 

to prospective employers). Clemens alleges no facts to show that the allegedly false 

and stigmatizing statements, that he was discharged for cheating, were published to 

prospective employers or others. 

Clemens does allege that the statements contained in his personnel file 

are “likely” to be publicized in response to prospective employers or to those making 

requests under the Right-to-Know Law.8 Petition ¶¶ 58, 98 & 100. However, these 

allegations, if proven, would not establish that his reputation had actually been 

harmed but, instead, are merely speculative and show only that Clemens’ reputation 

could be harmed in the future upon occurrence of the publication. See Cooley, 830

F.2d at 473-75 (holding that termination letter placed in employee’s personnel file

is not sufficient to support deprivation of liberty interest claim as there must be actual 

publication); Copeland, 840 F.2d at 1148. 

Additionally, Clemens alleges:

PSP announced the ‘cheating scandal,’ to the public, and 

subsequently announced the identities of those cadets in 

the 144[th] [c]lass who graduated from the Academy. 

Those knowing Clemens was a cadet in the 144[th] [c]lass, 

reviewing the graduation list and finding Clemens’ name 

absent, knew that Clemens was terminated, or resigned, in 

connection with the ‘cheating scandal.’

Petition ¶ 101; see also Petition ¶ 57 (alleging “[t]hose cadets who had been 

dismissed or resigned in connection with the ‘cheating scandal,’ like Clemens, could 

be determined by their absence from that list”). These allegations, if proven, would 

 

8 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
15

not establish that a false and stigmatizing impression of Clemens was published, and 

therefore, he fails to allege harm.

In other words, Clemens has not alleged facts that would establish that 

PSP published a list of cadets who failed to graduate because they were found guilty 

of cheating or were forced to resign in connection with cheating even though they 

did not cheat. Rather, these facts, if proven, show only that (1) an announcement 

was published about the cheating scandal involving the 144th class, and (2)

subsequently, a list was published identifying the names of the cadets in the 144th

class that graduated from the Academy, which did not include Clemens. Petition ¶¶ 

50 & 59. Because Clemens was not identified in the graduation list or the 

announcement regarding the cheating scandal, those publications did not, in any 

way, relate to Clemens personally, directly connect Clemens to the cheating scandal,

or provide any facts relating to Clemens’ discharge. Cf. Hill, 455 F.3d at 239 

(explaining that if the defamation occurred in connection with the employee’s 

discharge, then this is sufficient to meet the “plus” prong); see Petition ¶¶ 14, 51 & 

56-57. For the foregoing reasons, we sustain the PSP and the Lt. Col.’s preliminary 

objections as to Count II of the Petition asserting a deprivation of liberty interest in 

reputation.9 

Because we sustain the PSP and the Lt. Col.’s preliminary objections 

in the nature of a demurrer as to Counts I and II of Clemens’ Petition, the Petition is 

dismissed.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

 

9 Due to our disposition on the two preliminary objections addressed herein, we do not 

reach the preliminary objection that the Section 1983 claim cannot proceed against the PSP and 

the Lt. Col. because they are not subject to suit.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ethan Clemens, :

Petitioner :

:

v. :

:

Pennsylvania State Police and :

Lieutenant Colonel Lisa Christie :

(Individually and in her capacity :

as Lieutenant Colonel of the :

Pennsylvania State Police), : No. 59 M.D. 2018

Respondent :

O R D E R

AND NOW, this 7th day of February, 2020, the preliminary objections 

in the nature of a demurrer filed by the Pennsylvania State Police and Lieutenant 

Colonel Lisa Christie as to Counts I and II of Ethan Clemens’ Petition for Review 

(Petition) are sustained, and the Petition is dismissed. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge