1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-9-1996

Ersek v. Twp of Springfield

Precedential or Non-Precedential:

Docket 95-1913

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Ersek v. Twp of Springfield" (1996). 1996 Decisions. Paper 10.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/10
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 NO. 95-1913 

 ___________ 

ELLEN ERSEK, 

 Appellant 

 v. 

 TOWNSHIP OF SPRINGFIELD, DELAWARE COUNTY; 

 ANTHONY J. GROSSO; LEE J. JANICZEK; THOMAS V. MAHONEY; 

 JOHN J. MCFADDEN; KITTY JURCIUKONIS; BERNARD E. STEIN; 

 JAMES DEVENNEY, Individually and in their Official 

 Capacities as Commissioners of the Township of 

 Springfield; GEORGE A. PAGANO, Individually and in 

 his Capacity as Former Commissioner of the Township 

 of Springfield; JO ANN HUNN, Individually and in her 

 Capacity as Former Commissioner of the Township of 

 Springfield; MICHAEL T. LEFEVRE, Individually 

 and in his Capacity as Township Manager of the 

 Township of Springfield; JOSEPH STUMPF, Individually 

 and in his Capacity as Chief of Police of the Township 

 of Springfield; JOHN W. RYAN, Individually and in his 

 Capacity as Police Detective of the Township of 

 Springfield; JAMES F. DEVANEY, Individually and in his Capacity 

 as Police Officer of the Township of Springfield 

 Amended per Court's order of 11/27/96. 

 _________________________________________ 

 On Appeal From the United States District Court 

 For the Eastern District of Pennsylvania 

 D.C. No. 92-cv-04673 

 __________________________________________ 

 Argued: June 3, 1996 

 Before: BECKER and MANSMANN, Circuit Judges, and 

BROTMAN, District Judge. 

 (Filed December 9, 1996) 

 ___________ 

HAROLD I. GOODMAN, ESQUIRE (ARGUED) 

Raynes, McCarty, Binder, 

 Ross & Mundy 

1845 Walnut Street 

Suite 2000 

Philadelphia, PA 19103 
Counsel for Appellant 

DANIEL J. DIVIS, ESQUIRE (ARGUED) 

Dean F. Murtagh, Esquire 

German, Gallagher & Murtagh 

200 South Broad Street 

5th Floor 

Philadelphia, PA 19102 

Counsel for Appellees 

 ___________ 

 OPINION OF THE COURT 

 ___________ 

BECKER, Circuit Judge. 

 William Ersek, a golf professional who suffered 

employment reverses incident to adverse newspaper reports about 

an investigation of his stewardship at a Township-owned golf 

course, brought a federal civil rights action, 42 U.S.C. § 1983, 

against the Township and a number of its top officials on account 

of false statements made by one of the officials about the 

matter. Ersek's appeal from the grant of summary judgment in 

favor of the defendants raises a number of interesting questions 

under § 1983. However, his claim founders because there is 

insufficient evidence to show that the false statements 

themselves caused him harm. Accordingly, we will affirm the 

grant of summary judgment for defendants. 

 I. 

 From 1963 until the end of 1991, Ersek was employed as 

the golf professional at a municipally owned and operated golf 

course, the Springfield Country Club, in Delaware County, 

Pennsylvania. From 1963 until 1987, Springfield Township 

employed Ersek pursuant to successive one-year employment 

contracts. In 1987, Ersek signed a four-year contract. Ersek's 

duties as the Springfield golf pro were varied: he managed the 

pro shop and snack bar at the course, supervised the other 

employees at the course, and collected the fees for playing the 

course and renting the golf carts. 

 During the summer of 1989, a Township employee, 

responding to complaints by Ersek that construction on the golf 

course had resulted in a lower volume of paying golfers, counted 

the golfers on the course. The Township employee noticed that 

the number of golfers actually on the course did not correspond 

to the number of golfers Ersek reported to the Township. Michael 

Lefevre, the Township Manager and a defendant in the case, 

noticed the same discrepancies. The matter was referred to the 

Township police. After some investigation in the fall of 1989, 

the police decided to conduct surveillance during the spring and 

summer of 1990. The police inspection uncovered further 
discrepancies. 

 In August 1990, the police and Township employees 

notified the Township Board of Commissioners ("the Board"), a 

defendant in the case, of the results of their probe. Until that 

time, no member of the Board knew of the investigation. Bernard 

Stein, the President of the Board and also a defendant, informed 

the police that the Board would be willing to prosecute Ersek 

criminally if there were sufficient evidence to do so. After 

obtaining a search warrant, the police carried out a search of 

the pro shop and seized records stored therein. Ersek 

volunteered to the police that he kept additional records at his 

home. The police obtained a second search warrant and then made 

a search of Ersek's home, seizing documents stored there as well. 

 The Board discussed the Ersek case at a public meeting 

six days after the police searches. Stein read a public 

statement, earlier approved by the entire Board in executive 

session, concerning the case. Lefevre had also attended the 

executive session. The statement falsely claimed that the Board 

had not only been aware of the investigation since its outset but 

also had directed the entire undertaking. The admitted reason 

for the fabrication was to mislead the Township residents into 

believing that the Board had been pro-active in overseeing the 

golf course. The statement did not, however, refer to Ersek nor 

contain other false claims. After the Township meeting, local 

newspapers, and also The Philadelphia Inquirer, reported on the 

investigations and ran stories referring to Ersek by name. 

 Ersek had been suffering from health problems and, in 

the wake of the searches, did not return to work for several 

months. Although the Township continued to pay him for the time 

he spent away from the course, it moved to restructure the 

management of the course. For instance, the Township took 

control of the pro shop and responsibility for course employees. 

 Nearing the contract's expiration in 1991, the Township 

offered to renew Ersek's contract, but under substantially 

altered terms. The salary under the proposed contract would have 

been significantly less than that of the existing contract. 

Ersek refused to accept the terms of the proposed contract, and 

the Township hired a different golf professional. Ersek then 

sought job interviews with other country clubs in the area, but 

to no avail. Ersek claims that the cloud placed over his head by 

the publicized investigation made securing employment at another 

golf course impossible. 

 Ersek brought suit against the Township and against a 

number of Township officials alleging a variety of federal civil 

rights and pendent state law claims. In an initial order, the 

district court granted the defendants' motion to dismiss Ersek's 

substantive due process claims, and ordered Ersek to file an 

amended complaint to address deficiencies with respect to some of 

the other claims. See Ersek v. Township of Springfield, Delaware 

County, 822 F. Supp. 218 (E.D. Pa. 1993). In so doing, the court 

held that the Township did not act arbitrarily or capriciously in 

offering Ersek a renewed contract under markedly different terms; 

considering Ersek's ill health and age (Ersek was 59 years old at 

the time), the court found it not unreasonable for the Township 
to act as it did. Ersek subsequently dismissed a number of 

defendants and abandoned a number of claims voluntarily. 

 In a later order, the district court granted the 

remaining defendants' motion for summary judgment as to all 

existing federal law claims. Relying primarily on Paul v. Davis, 

424 U.S. 693 (1976) and Clark v. Township of Falls, 890 F.2d 611 

(3d Cir. 1989), the court held that Ersek could not make out a 

claim for a violation of procedural due process because he could 

not show that the Township's actions infringed on a

constitutionally protected interest. Specifically, the district 

court held that the fabrications contained in the Township's 

public statement did not harm Ersek to the extent that they 

violated a liberty interest in his reputation. And, even if 

those fabrications had harmed him, the court continued, Ersek 

failed to adduce evidence that he suffered more than mere 

financial harm so as to rise to liberty interest. The district 

court also dismissed the pendent state law claims with leave to 

file them in state court. 

 Ersek appeals from the district court's final order 

granting summary judgment, and includes in his appeal the court's 

order dismissing his substantive due process claims. The case 

raises both federal questions and pendent state law claims, and 

the district court properly exercised its jurisdiction pursuant 

to 28 U.S.C. §§ 1331 and 1367; we exercise appellate jurisdiction 

over this appeal of a final district court order pursuant to 28 

U.S.C. § 1291. Our review is plenary as to the appeal both from 

the order granting summary judgment and that granting the motion 

to dismiss. 

 II. 

 We must perforce begin by considering whether Ersek had 

a protectible liberty interest sufficient to trigger due process 

protections. The Supreme Court, in the seminal case of 

Wisconsin v. Constantineau, 400 U.S. 433 (1971), recognized that 

an individual has a protectible interest in reputation. It 

stated that "[w]here a person's good name, reputation, honor, or 

integrity is at stake because of what the government is doing to 

him, notice and an opportunity to be heard are essential." Id.at 437. 

The Court then went on to strike down a state statute 

that failed to provide an individual with the opportunity to 

challenge a government official's posting notice that no one may 

provide alcoholic beverages to that individual because of his 

problems with alcohol. Id. at 439. The inquiry is, however, 

more complicated today in light of intervening case law. 

 For government action to infringe the "reputation, 

honor, or integrity" of an individual, that government action 

first must involve a publication that is substantially and 

materially false. See Codd v. Velger, 429 U.S. 624, 627 - 29 

(1977); Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d 

74, 82 (3d Cir. 1989). The principal relief to which an 

individual is entitled should the government's stigmatizing 

comments rise to the level of a due process violation is a 

hearing to clear his name. See Codd, 429 U.S. at 627; Board of 

Regents of State Colleges v. Roth, 408 U.S. 564, 573 & n.12 

(1972). If there is no factual dispute that "has some 
significant bearing on the employee's reputation," then a nameclearing hearing would serve no useful purpose. See Codd, 429 

U.S. at 627. In other words, the disputed or false statements 

must harm the plaintiff. 

 In this case, Ersek claimed that false statements 

impaired his opportunities for future employment as a golf pro. 

Ersek has adduced ample evidence to create a genuine issue of 

material fact as to whether the publicity about the fact of an 

investigation did such harm. See McKnight v. Southeastern 

Pennsylvania Trans. Auth., 583 F.2d 1229, 1236 (3d Cir. 1978) 

(holding that harm to future employment possibilities may show 

sufficient stigma to allow a claim for a violation of a liberty 

interest). That the publicity may have harmed Ersek is not, 

however, the end of this inquiry, because the harm must be caused 

by the falsity of the statements and the fact of the 

investigation is true. Thus, we must now determine whether the 

false statements made by the Township affected Ersek's 

reputation. 

 It is undisputed that the public statement announcing 

the investigation at the Township golf course contained the false 

statement that the Board had known about and directed the 

investigation from its outset. Ersek contends that a public 

statement including such a fabricated claim could give rise to 

the false impression that the probe was a serious, non-routine 

matter. It is not usual for a legislative body to be engaged in 

the investigation of possible criminal activities. In Ersek's 

submission, anyone learning of the Board's (false) involvement 

could conclude that Ersek's alleged misdeeds were of an unusual 

nature calling for extraordinary measures, and such a conclusion 

would have a significant bearing on Ersek's reputation because 

more serious allegations would likely engender more serious harm 

to an individual's reputation. Had the statement only mentioned 

the police involvement and omitted the Board's putative activity, 

the argument continues, there would be no cause to overstate the 

seriousness of the allegations. 

 We are unconvinced. As we have stated, Ersek must show 

that the false comments made by the Township caused him some 

harm. The problem with Ersek's argument is that the only false 

statements were that the Board had been heavily involved in the 

investigation at the golf course. Notwithstanding Ersek's 

protestations, we cannot imagine that such fabrications caused 

more harm than would a statement that truthfully said that only 

the police and a few Township officials were investigating him. 

Should Ersek receive the hearing to which he claims he is 

entitled, the most for which he can seemingly ask in the hearing 

is the opportunity to show that the investigation was not 

conducted by the Board and that any inference that the 

investigation was unusual is incorrect. That hearing could not 

be used to prove Ersek's innocence. He would still have hanging 

over his head the cloud of a police investigation. It seems 

fanciful that any golf course that refused to hire Ersek because 

of the statement actually given would now consider hiring him 

because only the police (and not the Board) were investigating 

him. 
 In sum, the false statements in this case simply have 

not caused Ersek harm that a name-clearing hearing could correct. 

It was the fact of the investigation, not who conducted the 

investigation, that might have injured Ersek's reputation. 

Because Ersek cannot dispute the fact of the investigation, a 

name-clearing hearing would be of no consequence to him. AccordHomar v. 

Gilbert, 89 F.3d 1009, 1021 - 22 (3d Cir. 1996) (denying 

a procedural due process claim, in part based on the reasoning 

that the truthful disclosure of a pending investigation did not 

stigmatize the plaintiff); S & D Maintenance Co. v. Goldin, 844 

F.2d 962, 970 - 71 (2d Cir. 1988) (same). 

 III. 

 Because we conclude that no genuine issue of material 

fact exists as to Ersek's claim that the false statements made by 

the Township stigmatized him, the order of the district court 

granting the defendants' motion for summary judgment will be 

affirmed.