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D ock e t 98-7324 98-7349

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. e du/thir dc ir c uit_2000/131Filed June 14, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 98-7324 and 98-7349

DONALD BOYANOWSKI, Individually; DONALD BOYANOWSKI, tdba, Boyo Transportation Services Inc. ; DOROTHY BOYANOWSKI; BOYO TRANSPORTATION

SERVICES INC.; MICHAEL LABALOKIE

v.

CAPITAL AREA INTERMEDIATE UNIT; JOHN E. NAGLE; ED FRYE; *ROGER MORRISON, Individually; MARK BAUER; *WEST PERRY SCHOOL DISTRICT

CAPITAL AREA INTERMEDIATE UNIT; JOHN E. NAGEL; ED FRYE, Appellants in 98-7324

DONALD BOYANOWSKI; MICHAEL LABALOKIE,

Appellants in 98-7349

*Dismissed - Per Court's order of 7/26/99.

On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civ. No. 94-cv-01252) District Judge: Honorable Sylvia H. Rambo

Argued: September 23, 1999

Before: BECKER, Chief Judge, and GARTH, Circuit Jud ge

and POLLAK, District Judge.**

(Filed: June 14, 2000)

___________________________________________________ ______________

** Honorable Louis H. Pollak, United States Distric t Judge for the Eastern District of Pennsylvania, sitting by design ation.STUART L. KNADE, ESQUIRE

(ARGUED) Pennsylvania School Boards

Association

774 Limekiln Road New Cumberland, PA 17070-2398

Counsel for Capital Area Intermediate Unit John E. Nagle and Edward T. Frye

DONALD A. BAILEY, ESQUIRE (ARGUED)

Suite 209 3540 North Progress Avenue Harrisburg, PA 17110

Counsel for Donald Boyanowski; Dorothy Boyanowski; Boyo Transportation Services, Inc.; Michael Labalokie; Donald Boyanowski t/d/b/a/ Boyo Transportation Services, Inc.

SAMUEL C. STRETTON, ESQUIRE 301 South High St.

P.O. Box 3231 West Chester, PA 19381

Counsel for Michael Labalokie and Donald Boyanowski

OPINION OF THE COURT

BECKER, Chief Judge.

These appeals arise from a judgment entered in the District Court on separate jury verdicts in favor o f a transportation contractor and his wife in their res pective civil rights and civil conspiracy suits against a l ocal government entity and its officials. Donald Boyanow ski alleged that his efforts to furnish transportation services to school districts failed because of conduct by local officials that violated his substantive due process rights. D orothy

2Boyanowski claimed to have been the victim of a civ il

conspiracy by two local officials that prevented he r from receiving contracts to work as a bus driver. The ap peal of the verdict in Donald Boyanowski's favor requires consideration of the relation, and separation, betw een federal constitutional and state tort actions. The appeal of the verdict in Dorothy Boyanowski's favor presents the question whether a plaintiff 's verdict for (state law) civil conspiracy can survive when the jury has found for the defendant on the underlying tort.

The first verdict, in favor of Donald Boyanowski an d against his former employer, the Capital Area Inter mediate Unit ("CAIU"), was entered on his claim that the CA IU's conduct violated his substantive due process rights . He also won a verdict against John Nagle, who had been exec utive director of the CAIU, but the District Court set it aside on qualified immunity grounds. Mr. Boyanowski's claims are essentially state tort defamation claims that do no t implicate a federal constitutional interest. Consti tutional claims of this sort have been implicitly rejected b y the Supreme Court, see Siegert v. Gilley, 500 U.S. 226 (1991), and find no basis in our jurisprudence. We will the refore set aside the jury verdict in Mr. Boyanowski's favo r. In light of our conclusion that he has not been deprived of constitutionally protected rights, there is no need to consider his cross-appeal of the District Court's d ecision to grant Nagle qualified immunity.

The second verdict, in favor of Dorothy Boyanowski against two CAIU officials, is for civil conspiracy . She claimed that officers of the CAIU conspired to inte rfere with her contract rights as part of their campaign again st her husband. The jury found in her favor on her civil conspiracy complaint while rejecting her claim for tortious interference with contract. In light of the jury'sf inding that the underlying tort did not occur, we conclude that the civil conspiracy claim can not survive. See GMH Assoc., I nc. v. Prudential Realty Group, CB, ___ A.2d ___, No. 198 EDA 1999, 2000 WL 228918 (Pa. Super. Ct. March 1, 2000) ; Pelagatti v. Cohen, 536 A.2d 1337 (Pa. Super. Ct. 1 987). We will therefore set aside the verdict on civil consp iracy as well, and remand with directions to enter judgment for the

defendants on all counts.

3I.

The CAIU is a governmental entity operating under Pennsylvania's public school laws. Intermediate uni ts

("IUs") are part of the state's public school syste m and operate service programs that are open to the local public school districts assigned to each intermediate unit . See Pa. Stat. Ann. tit. 24 S 9-951 et seq. The board of dir ectors of

the IU is elected from the boards of directors of t he component school districts. See id. S 9-960. The CA IU is one of twenty-nine IUs in the state. See id.S 9-952 . The CAIU provides transportation for disabled children to and from classes and programs throughout the unit's reg ion. It does so through a combination of employees and independent contractors. Prior to his retirement in July 1993, defendant John Nagle, as is noted above, was

Executive Director of the CAIU. Defendant Edward Fr ye was the Assistant Executive Director and succeeded Nagl e as Executive Director.

Until his retirement in March 1993, Donald Boyanows ki was the CAIU transportation supervisor. After retir ing, he established Boyo Transportation Services, Inc. ("Bo yo"), which sought to contract for special transportation services

with the member school districts of the CAIU. This entailed convincing them to no longer acquire such services through the CAIU. Mr. Boyanowski was therefore effectively competing with his former employer. Having been unsuccessful in persuading any member districts to accept his contract proposals, he brought suit under 42 U. S.C. S 1983, contending that his lack of success was the product of a violation of his substantive due process right s. At trial, he produced evidence that Nagle unfairly blamed him for rising costs of the CAIU program that occurred whil e he was a supervisor, and had referred to Mr. Boyanowsk i as a "crook" in a meeting of the CAIU superintendents co uncil. Mr. Boyanowski alleged these actions were part of a concerted effort to keep him from obtaining any con tracts.

The jury found that the CAIU's and Nagle's conduct violated Mr. Boyanowski's substantive due process r ights, and awarded compensatory damages in the amount of $50,000 against the CAIU and $100,000 against Nagle . The jury also awarded $100,000 in punitive damages agai nst

4Nagle. On post-trial motions, the District Court ru led that

Nagle was entitled to qualified immunity on the sub stantive due process claim, and it set aside the verdict and damages against him. The CAIU appeals the substantive due p rocess judgment against it, and Mr. Boyanowski cross appea ls the grant of qualified immunity to Nagle.

The jury also considered several claims brought by Dorothy Boyanowski. She had been employed as an independent contractor bus driver for the CAIU. Aft er her husband established Boyo, Ms. Boyanowski's contract was not renewed. She contended that Frye and Nagle enga ged in

conduct that amounted to tortious interference with contract against her as well as a civil conspiracy. She produced evidence at trial not only that her contra ct was not renewed, but also that Frye had made statements that were relayed to one of CAIU's busing contractors th at hiring her would not be a "good idea," and that this communication occurred while Nagle was still in cha rge. Ms. Boyanowski also produced evidence that Nagle ha d sent her a letter informing her that her contract w ould not be renewed. The jury found for the defendants on th e tortious interference with contract claim, but rule d in Ms. Boyanowski's favor as to the civil conspiracy, awar ding her $50,000 against Nagle and $100,000 against Frye. Th e defendants also appeal this judgment.

The District Court had jurisdiction over Donald Boyanowski's civil rights claim under 28 U.S.C.SS 1 331, 1343. It had supplemental jurisdiction over Dorothy Boyanowski's state law claims pursuant to 28 U.S.C. S 1367. Our jurisdiction over the District Court's final order is based on 28 U.S.C. S 1291. Our review of all leg al questions is plenary.

II.

The core of due process is the protection against arbitrary governmental action and has procedural an d substantive components. See County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). The substantive component of the Due Process Clause limits what government may do regardless of the fairness of pro cedures

5that it employs, and covers government conduct in b oth

legislative and executive capacities. See id. at 8 46. The CAIU's appeal requires us to address executive cond uct alleged to have infringed upon Donald Boyanowski's rights as protected by the Due Process Clause of the Fourt eenth

Amendment.

Unfortunately for Mr. Boyanowski, his substantive d ue process claim is properly read as a state law defam ation claim. This is even made clear by his own brief, wh ich

indicates that his S 1983 claim is based on defamat ion and exists solely to circumvent Pennsylvania sovereign immunity against state tort claims. As the Boyanows kis'

brief recites:

According to appellants, if a government ent ity is interested in doing business, and in the pro cess uses its political power and muscle to systematic ally destroy the business opportunities of a competing pr ivate citizen through slur, innuendo, and outright false accusations, then the misconduct is simply n ot actionable. In Pennsylvania sovereign immuni ty protects government from tortious interferen ce with contracts suits. Appellants know there is no adequate

recourse under state defamation law also bec ause of sovereign immunity statutes.

Appellee's Br. at 8 (emphasis added). Of course the lack of availability of a state law remedy will not serve t o elevate an ordinary tort to a constitutional violation. The de gree to which Pennsylvania wishes to waive sovereign immuni ty claims for state causes of action is the quintessen ce of a state law question.

In instructing the jury on Mr. Boyanowski's substan tive due process claim, the District Court charged:

You must first decide if each of plaintiffs were deprived of a fundamental right. You are adv ised that there is no constitutionally protected right to obtain future government contracts, and that suspen sion or debarment from bidding on government contrac ts may be a basis for liability only if it is based upon a charge of fraud or dishonesty.

6Plaintiffs must therefore show that the gov ernment

officials stigmatized plaintiff by publishin g charges of fraud or dishonesty which were substantially and materially false, and that the defendants ma king them knew they were false or had serious doubts a bout the truth of these statements, and that those st atements had the effect of preventing plaintiff from engaging in the transportation business.

App. 100.

Assuming arguendo that the jury's verdict for Mr. Boyanowski on this charge was supported by the evid ence, we must determine if the substance of the charge wa s correct, i.e., whether defamatory statements that c urtail a plaintiff 's business opportunities suffice to supp ort a substantive due process claim. At the outset of thi s inquiry, we must be mindful of the Supreme Court's commands in addressing the interplay of constitutional and stat e tort law. First, the Fourteenth Amendment is not "a font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Dav is, 424 U.S. 693, 701 (1976). Second, we must remember that "[a]s a general matter, the [Supreme] Court has always be en reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking i n this uncharted area are scarce and open-ended. The doctr ine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in t his field." Collins v. City of Harker Heights , 503 U.S . 115, 125 (1992) (citation omitted). Addressing the substanti ve due process claim, therefore, requires scrupulous atten tion to the guideposts that have previously been establishe d.

A.

We note preliminarily that establishing a substanti ve due process claim even when executive action has infrin ged an interest protected by the Due Process Clause is dif ficult. "Our cases dealing with abusive executive action ha ve repeatedly emphasized that only the most egregious official conduct can be said to be `arbitrary in the constit utional sense. . . .' " County of Sacramento v. Lewis, 523 U.S. 833,

7846 (1998) (quoting Collins v. Harker Heights , 503 U.S.

115, 129 (1992)) (emphasis added). For executive co nduct, the Supreme Court has "for half a century now . .. spoken of the cognizable level of executive abuse of power as that which shocks the conscience." See id. Determining w hether the challenged action rises to this level has been described as a "threshold" question in a challenge to an exec utive action. See id. at 847 n.8 ("[T]he threshold questi on is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be sai d to shock the contemporary conscience. . . . Only if the nece ssary condition of egregious behavior were satisfied woul d there be a possibility of recognizing a substantive due p rocess right to be free of such executive action . . . .")

.

Though we construe the trial record in Mr. Boyanows ki's favor, we cannot agree that the conduct of which he complains rises to the level required by the Suprem e Court in Lewis. The statements allegedly made about Donal d Boyanowski--that he was a "crook" and was responsib le for cost overruns of the CAIU's transportation program- -had no direct legal effect upon him. He was not prohibi ted from bidding on contracts or otherwise restricted in his conduct, and the comments were not publicized in a manner th at would humiliate him before the community at large. At

least one of our sister circuits has found that far moredefamatory statements did not rise to a conscienceshocking level for substantive due process purposes . See Mertik v. Blalock, 983 F.2d 1353, 1367-68 (6th Cir. 1993) (affirming district court conclusion that banning c oach from city ice rink and publishing to third parties false statements that coach was sexually abusing minor students did not

rise to conduct that shocked the court's conscience ). The

evidence in this case does not rise to the level of truly egregious conduct that is required for a substantiv e due process claim as described by the Supreme Court in Lewis. At worst, the evidence indicates sharp business pra ctices by a competitor.

It is true that Lewis teaches that what"shocks the

conscience" varies from circumstance to circumstanc e. See Lewis, 523 U.S. at 850 ("Deliberate indifference th at shocks in one environment may not be so patently egregious in

8another, and our concern with preserving the consti tutional

proportions of substantive due process demands an e xact analysis of circumstances before any abuse of power is condemned as conscience-shocking."). We need not, however, definitively calibrate the egregiousness l evel that Lewis would require of a defamation-type claim beca use other precedent makes clear that this sort of claim cannot present a substantive due process violation in thef irst place.

B.

The Supreme Court has made clear that federal court s are not to view defamatory acts as constitutional v iolations. In Paul v. Davis, 424 U.S. 693 (1976), a procedural due process case, the Court held that defamation by its elf did not harm a "liberty" interest protected under the Fourteenth Amendment. Paul involved a plaintiff who se name and photograph appeared on a police flyer that was captioned "Active Shoplifters" and distributed amon g merchants. The Court turned aside a procedural due process claim on the grounds that harm to reputatio n alone

did not suffice for a constitutional tort based on procedural due process. See id. at 711-12. Although the claim was based in procedural due process, the Court's holdin g was that the interest in reputation was neither "libert y" nor "property" that was protected by the Due Process Cl ause. See id. at 712.

Even more relevant to the case at hand is the Court 's return to the issue in Siegert v. Gilley, 500 U.S. 226 (1991). In Siegert, the plaintiff was a clinical psychologi st who had been employed by a federally operated hospital in Washington, D.C. He resigned his post, rather than face termination, and found another position at a U.S. A rmy hospital in West Germany. That position required "credentialing," the securing of which required pla intiff to ask his former employer to provide information to t he Army facility. In response to the request, his former su pervisor wrote a letter that labeled plaintiff as inept, une thical, and untrustworthy. Plaintiff was subsequently denied th e necessary credentials and ultimately lost his posit ion. He then brought a Bivens action against his former sup ervisor.

9See id. at 228-29. The Supreme Court rejected the c laim.

Though the Court acknowledged that defamation injur ies do indeed lead to monetary losses that flow from th e injury to reputation, it stated that "so long as such dama ge flows from injury caused by the defendant to a plaintiff 's reputation, it may be recoverable under state tort law but

it is not recoverable in a Bivens action." Id. at 2 34. "The

statements contained in the letter would undoubtedl y damage the reputation of one in his position, and i mpair his future employment prospects. But the plaintiff in Paul v. Davis similarly alleged serious impairment of hi s future employment opportunities as well as other harm." Id . The Court therefore concluded that Siegert failed to al lege a constitutional deprivation. See id. at 233-34.

Donald Boyanowski also alleged that harm flowed fro m the statements made about him insofar as he was una ble to receive any of the contracts for which he bid. W e do not

see how his harm was of a different nature from tha t alleged in Siegert. Both plaintiffs alleged harm fl owing from defamatory statements made by former employers. It is therefore hard to see how Siegert is not fatal to t he substantive due process claim.1 Even if Siegert is construed strictly as a procedural due process case, it does not support the claim because Siegert declares that the claim of harm flowing from the defamatory statement is not a liberty interest protected by the Due Process Clause. Cf. R eich v. Beharry, 883 F.2d 239, 244 (3d Cir. 1989) ("[I]n th is circuit at least, not all property interests worthy of proc edural due process protection are protected by the concept of

___________________________________________________ ______________

1. The similarity of harms in the two cases also wo uld appear to doom any effort to link the "stigma plus" analysis that has characterized procedural due process cases that have arisen in wa ke of Paul v. Davis and concern defamatory statements, see, e.g., Ersek v. Township of Springfield, 102 F.3d 79, 83 n.5 (3d Cir. 1996), wi th the substantive due process claim urged by Mr. Boyanowski. Even if we w ere to entertain such an application, our precedents are decidedly a gainst such claims. See, e.g., Kelly v. Borough of Sayreville, 107 F.3d 1073, 1078 (3d Cir. 1997) ("[E]ven financial injury due solely to gover nment defamation does not constitute a claim for deprivation of a constit utional liberty interest."); Sturm v. Clark, 835 F.2d 1009, 1012-13 (3d Cir. 1987) ("Most, if not all, charges of defamation are inevitably ac companied by financial
loss.").

10substantive due process."); In re Selcraig , 705 F. 2d 789,

796 (5th Cir. 1983) (rejecting substantive due proc ess claim arising from stigmatization of discharged employee but discussing potential availability of procedural nam e-clearing hearing). Indeed, it would be an odd result to hold that the CAIU was free to stigmatize Mr. Boyanowski without providing him with procedural protections from the statements, but was not free to make the statements without incurring liability under the Constitution. Upholding the substantive due process claim, theref ore, would not be supported by Supreme Court precedent.

Neither does Mr. Boyanowski's claim find refuge in those Third Circuit cases that have upheld substantive du e process claims. We have recognized substantive due process claims in certain limited circumstances whe n the existence of procedural due process protections is not at issue. See, e.g., Independent Enters., Inc. v. Pitt sburgh Water & Sewer Auth., 103 F.3d 1165, 1179 (3d Cir. 1 997). We have never, however, suggested that a substantiv e due process cause of action lies for the kind of claim pursued

in the District Court.

Independent Enterprises, Inc. v. Pittsburgh Water a nd Sewer Authority is perhaps the most analogous prece dent. The facts in that case presented a stronger basis f or a substantive due process claim than do those in the case at

hand because there was evidence of direct interfere nce by executive actors with the procurement of contracts. The plaintiff was a contractor who had entered into a c onsent decree with a city water and sewer authority. That decree precluded the contractor's being barred based on pa st performance from bidding on city contracts. In subs equent bids, the contractor was the low bidder on two cont racts and received neither. In one case, the contracting authority was ordered to halt awarding contracts to the contr actor because of a cost overrun in a recent project. Thes e actions appeared to violate the consent decree, which provi ded that the contractor could not be "disqualified" based on postdecree performance absent a hearing under local law . See

id. at 1168-69.

In ruling whether those facts could be used to stat e a substantive due process claim, we summarized our substantive due process jurisprudence as follows:

11Although the Third Circuit has recognized th at a

governmental deprivation that comports with procedural due process may still give rise t o a substantive due process claim "upon allegati ons that the government deliberately and arbitrarily abused its power," we have also held that a substantive due process claim grounded in an arbitrary exerc ise of governmental authority may be maintained onl y where the plaintiff has been deprived of a "partic ular quality of property interest." Although our court ha s suggested that only fundamental property interests are worthy of substantive due process protection, it has p rovided little additional guidance regarding what sp ecific property interests should receive substantiv e due process protection.

Id. at 1179 (citations omitted).

Though it ultimately "le[ft] for another day defini tion of the precise contours of the `particular quality of property interest' entitled to substantive due process prote ction," id. at 1180, the Independent Enterprises panel observed that the infringed interest must be a concrete one:

We have held that "ownership is a property i nterest worthy of substantive due process protection ," [DeBlasio v. Zoning Bd. of Adjustment for th e Township of West Amwell, 53 F.3d 592, 600 (3d Cir. 19 95)], but we have found that neither interest in promp t receipt of payment for professional services provide d to the state, Reich, 883 F.2d at 244-45, nor state law entitlement to water and sewer services, Ran som v. Marrazzo, 848 F.2d 398, 411-12 (3d Cir. 1988 ), are the "certain quality" of property interest worth y of substantive due process protection. We have also strongly suggested in dictum that a student' s right to continued enrollment in a graduate program d oes not rise to such a level on the ground that such an interest
bears " `little resemblance to the fundament al interests that previously have been viewed as implicit ly protected by the Constitution.' " Mauriello v. Univ. o f Med. & Dentistry of N.J., 781 F.2d 46, 50 (3d Cir. 1986) (quoting Regents of Univ. of Michigan v. Ewi ng , 474

12U.S. 214, 229-30, 106 S.Ct. 507, 516, 88 L.E d.2d 523

(Powell, J., concurring)).

Id. at 1180 (quoting Homar v. Gilbert , 89 F.3d 100 9, 1021 (3d Cir. 1996), rev'd on other grounds, 520 U.S. 92 4 (1997)).

Applying this precedent, we ruled that the facts in Independent Enterprises did not give rise to a viab le substantive due process claim, observing that we ha d"no difficulty" in concluding that the alleged interest was not the sort of fundamental interest protected by subst antive due process. See id. We view the facts in Independe nt Enterprises, where defendants actively prevented pl aintiffs from winning contracts in violation of a consent de cree, as constituting a more compelling claim that a protect ed interest had been violated than that proffered by D onald Boyanowski, who was never barred from having his bi ds

considered. There is no basis in our substantive du e process precedent for according him the relief that he

seeks.

C.

The District Court's jury instruction characterized the issue at stake as Donald Boyanowski's liberty inter est to engage in the transportation business. In its denia l of CAIU's post-trial motion, the District Court defend ed this characterization by referring to Meyer v. Nebraska, 262 U.S. 390 (1923). The District Court described Donal d Boyanowski's defamation-based damages as "derived f rom a fundamental liberty interest to engage in the commo n occupations of life protected by the Fourteenth Amendment." Op. at 10 (citing Meyer, 262 U.S. 390, 399 (1923)).

As discussed above, our precedent has never read substantive due process as extending as far as did the District Court. Contrary to that court, we do not v iew Meyer as helpful to the substantive due process claim bef ore us. Meyer involved a prosecution of a teacher who viola ted a statutory bar on the teaching of a foreign language . In reversing the conviction on due process grounds, th e Supreme Court uttered the broad and celebrated lang uage

13about the right to engage in any of the common

occupations of life, on which the District Court's opinion relies. See Meyer, 262 U.S. at 399. The case turned

, however, on a direct bar to the teacher's teaching, as well as the concurrent interference in parental rights o ver children. See id. at 400. The more analogous situat ion for Mr. Boyanowski, if Meyer were relevant, would have involved a prosecution targeting him for the mere a ct of bidding on transportation contracts. His actual sit uation was too remote from the facts of Meyer for that cas e to have particular applicability.

The Supreme Court has already held that Meyer may not

be read to constitutionalize all executive actions that affect the pursuit of a profession in any way. See Conn v. Gabbert, 119 S. Ct. 1292 (1999). In Conn, the Court rejected an attorney's attempt to claim that a sear ch warrant executed upon him while his client was test ifying before a grand jury violated the attorney's Fourtee nth Amendment right to practice his profession. In so d oing, the Court focused on the language of Meyer on which the District Court relies here, but specifically reject ed its application to the plaintiff 's circumstances. See id. at 1295. We similarly view Meyer as too slender a reed on wh ich to rest Mr. Boyanowski's substantive due process claim

.

Moreover, the approach taken by the District Court would subsume broad categories of tort law under th e constitutional aegis. Equating a defamatory stateme nt that leads to a third party's not extending a contract t o a frustrated plaintiff with the deprivation of the pl aintiff 's legal right to engage in the common occupations of life in a manner protected by the Fourteenth Amendment goes too

far. It is true that such an action has some effect on an individual's ability to navigate the often treacher ous waters of government contracting, but to leap to the broad level of generality necessary to classify the harm in substa ntive due process terms would constitutionalize broad swaths of state

tort law.

If Donald Boyanowski's claim can survive, the same could be said for any number of mundane state tort cases that lack a clear constitutional basis. In addition to implicitly overruling the Supreme Court's holding i n Siegert,

14upholding the verdict would ignore the Supreme Cour t's

twin commands that the Fourteenth Amendment not become a font of tort law that supplants state syst ems, see Paul, 424 U.S. at 701, and that the cause of action encompassed by substantive due process not be expan ded without extreme care, see Collins, 503 U.S. at 125.

Because Donald Boyanowski's claim, the record evide nce, and the District Court's jury instruction all point to a state

law defamation claim and not a constitutional subst antive due process claim, we will reverse the judgment ent ered on the jury verdict in favor of Mr. Boyanowski on his substantive due process claim against the CAIU. Our ruling in this regard moots his cross-appeal as to the Dis trict Court's grant of qualified immunity to Nagle.

III.

We turn to Dorothy Boyanowski's jury verdict for ci vil conspiracy against Frye and Nagle. The defendants o ffer an array of arguments in support of our setting aside the verdict. First, they submit that the jury's verdict in their favor as to the underlying tort of tortious interfe rence with contract requires dismissal of the civil conspiracy verdict. Second, they contend that the defense verdict on th e tort claim vitiates any award of damages on the conspira cy claim. Third, the defendants argue that they had no legal capacity to conspire; they submit that because unde r Pennsylvania precedent a corporation cannot conspir e with itself, Dorothy Boyanowski had to prove that Frye o r Nagle was acting outside the scope of his duty for person al reasons. Fourth, the defendants claim that there wa s no evidence of a concerted action or common scheme necessary to sustain a conspiracy finding. Fifth, t he defendants assert that no evidence was presented indicating that Frye and Nagle willfully engaged in unlawful conduct, and that such evidence is a prerequisite f or the removal of their statutory immunity under Pennsylva nia law. Furthermore, the defendants submit that Frye a nd Nagle should have been given absolute immunity as"h igh public officials." Finally, the defendants claim th at there was insufficient evidence to support the jury's ver dict against them on the claim of civil conspiracy.

15Many of these assignments of error pertain to the

sufficiency of the evidence presented by Ms. Boyano wski at trial. Unfortunately, rather than provide any citat ions to the record in their brief on appeal, which consisted mo stly of assertions that were unsupported by citation, legal or otherwise, the Boyanowskis' counsel elected simply to submit several volumes of trial transcript, refer t o the trial record as a whole, and unhelpfully tell this Court that "only a review of the entire record can totally illuminat e the entire picture heard by the jury." Appellees' Br. at 14. A t oral argument the panel afforded counsel a second opport unity to point to specific instances in the record that s upported the jury's findings in this matter. Although the ev idence in the record finally cited by the Boyanowskis' lawyer is exceedingly thin, possibly to the point of justifyi ng reversal on insufficiency grounds alone, we need not conside r the weight of the evidence presented at trial because t he issue can ultimately be disposed of on the defendants'fir st assignment of error.

In their brief, the defendants point to Pennsylvani a precedent that holds that a claim of civil conspira cy cannot be pled without also alleging an underlying tort. S ee, e.g., Nix. v. Temple Univ., 596 A.2d 1132, 1137 (Pa. Supe r. Ct. 1991); Pelagatti v. Cohen, 536 A.2d 1337, 1342 (Pa. Super. Ct. 1987). They fail, however, to cite authority fo r the proposition that once an underlying tort has been a lleged, only a finding that the underlying tort has occurre d will allow an appellate court to sustain a similar findi ng on the civil conspiracy charge. The rule that civil conspi racy may not exist without an underlying tort is a common on e. See In re Orthopedic Bone Screw Prods. Liab. Litig., 19 3 F.3d 781, 789 & n.7 (3d Cir. 1999) (collecting cases). I ndeed, "we are unaware of any jurisdiction that recognizes civ il conspiracy as a cause of action requiring no separa te tortious conduct." Id. at 789. It is not surprising that there are few cases dealing with the sort of mixed verdic t we have here, as a jury would not logically be expected to determine that civil conspiracy occurred, but that the underl ying tort did not. Candidates for such verdicts would usually be screened out at the summary judgment or pleading st age, and that is indeed where most precedents that state the underlying tort rule are to be found. We must there fore

16predict whether the Pennsylvania Supreme Court woul d

apply a rule that is normally employed at the plead ing stage to overturn a jury verdict for civil conspiracy in a plaintiff 's favor. We predict that it would.

In predicting how a matter would be decided under s tate law we examine: (1) what the Pennsylvania Supreme C ourt has said in related areas; (2) the decisional law o f the Pennsylvania intermediate courts; (3) federal appea ls and district court cases interpreting the state law; an d (4) decisions from other jurisdictions that have discus sed the issues we face here. See Wiley v. State Farm Fire & Cas. Co., 995 F.2d 457, 459-60 (3d Cir. 1993). While we lack a clear statement from the Pennsylvania Supreme Court on the precise question at issue, a panel of the Penns ylvania Superior Court recently decided a case that would decisively resolve the issue if we follow the resul ting precedent. See GMH Assoc., Inc. v. Prudential Realt y Group, CB, ___ A.2d ___, No. 198 EDA 1999, 2000 WL 228918 (Pa. Super. Ct. March 1, 2000).

GMH arose out of a failed real estate transaction. The trial court, sitting without a jury, found defendan ts liable to plaintiffs for breach of contract, breach of duty t o negotiate in good faith, promissory estoppel, fraudulent misrepresentation, fraudulent non-disclosure, and c ivil conspiracy. See id. at *5. On appeal, the Pennsylva nia Superior Court concluded that no fraud had actually

occurred. See id. at *10. The claim of fraud was th e underpinning for the civil conspiracy claim. See id . at *13. Because the fraud claim was set aside, the court he ld that the civil conspiracy claim could not survive:

[Plaintiffs'] conspiracy claims were based on the allegation that all defendants conspired to defraud [plaintiff]. Because we conclude that no fra ud was committed, we correspondingly find that no c ivil conspiracy to defraud occurred. See generall y [Rutherford v. Presbyterian-Univ. Hosp., 612 A.2d 500, 508 (Pa. Super. 1992)] (citing Rose v. Wissi nger, 294 Pa. Super. 265, 439 A.2d 1193 (1982) (where complaint fails to set forth claim for defam ation or outrageous conduct causing emotional distres s, there could be no conspiracy to commit those acts) ; and

17Raneri v. DePolo, 65 Pa.Cmwlth. 183, 441 A.2 d 1373,

1376 (Pa.Cmwlth. 1982) (under Pennsylvania l aw, when a party fails "to sufficiently allege i n[other] counts any unlawful act or unlawful means" t he conspiracy claim must also fail when it is b ased on these claims)).

Id.

As the quoted passage makes clear, the court did no t dismiss the conspiracy claims based on an independe nt evaluation of their viability in light of the recor d developed by the trial court. Rather, the failure of the unde rlying

fraud claim sufficed as a matter of law to vitiate the finding of civil conspiracy notwithstanding the fact that i t had been successfully pled as an independent cause of action

.

An intermediate appellate state court's decision"is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinc ed by other persuasive data that the highest court of the state would decide otherwise." West v. American Telephone & Tel. Co., 311 U.S. 223, 237 (1940). We not only conclude that GMH is persuasive on its logic, but rather thanfind ing sufficient contrary persuasive data, we find other factors

that counsel that we follow the GMH court.

The precept employed by GMH is logically sound. It is sensible that the rule requiring the existence of a n underlying tort in the pleading stage similarly req uires that the tort be proven if a civil conspiracy claim is t o prevail. To be sure, there are arguments to the contrary. One c ould argue the reverse inference and maintain that the j ury's finding that there was a civil conspiracy against D orothy Boyanowski that caused damage means that the jury's ruling for the defendants in the tortious interfere nce of contract claim was actually the legally incorrect o ne. Another argument is that the two causes of action, whatever their linkage in the pleading stage, are d istinct. Inconsistent jury verdicts are an unfortunate fact of life in law, and should not, in and of themselves, be used to overturn otherwise valid verdicts. Cf. Mosley v. Wi lson, 102 F.3d 85, 90-91 (3d Cir. 1996) (ruling that district court erred as a matter of law when it directed judgment

18notwithstanding the jury's verdict on one claim on the sole

ground that it was inconsistent with the jury's ver dict on another claim).

We nonetheless believe that the defendants' reading is the better one in light of the nature of civil cons piracy. "Since liability for civil conspiracy depends on pe rformance of some underlying tortious act, the conspiracy is not independently actionable; rather, it is a means for establishing vicarious liability for the underlying tort." Halberstam v. Welch, 705 F.2d 472, 479 (D.C. Cir. 1 983). A verdict on civil conspiracy should yield to a findi ng for the defendant on the underlying tort because the cause of action is wholly subordinate to the underlying tort 's existence. We also are supported by the fact that c ourts in other jurisdictions have made similar holdings to t hat in

GMH when faced with similar circumstances. See K&S Partnership v. Continental Bank, N.A., 952 F.2d 971 , 980 (8th Cir. 1991); see also Akins v. Zeneca, Inc. , 6 2 F.3d 1417, 1995 WL 452087, (6th Cir. July 27, 1995) (aff irming district court's dismissal of civil conspiracy clai m after close of plaintiff 's evidence because of failure to prov e underlying
tort).

In light of the clear statement by the Pennsylvania Superior Court, practice in other jurisdictions, an d what we perceive as the logical rule, we predict that if fa ced with this matter, the Pennsylvania Supreme Court would r everse Dorothy Boyanowski's judgment for civil conspiracy. We therefore need not reach the defendants' other argu ments for reversing the verdict.

The judgment of the District Court will be reversed , with direction to enter judgment in favor of the defenda nts on all

counts.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

19