2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-14-2000

Boyanowski v. Capital Area

Precedential or Non-Precedential:

Docket 98-7324 98-7349

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Recommended Citation

"Boyanowski v. Capital Area" (2000). 2000 Decisions. Paper 131.

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Filed 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 Judge 

and POLLAK, District Judge.** 

(Filed: June 14, 2000) 

_________________________________________________________________ 

** Honorable Louis H. Pollak, United States District Judge for the 

Eastern District of Pennsylvania, sitting by designation. 
 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 of a 

transportation contractor and his wife in their respective 

civil rights and civil conspiracy suits against a local 

government entity and its officials. Donald Boyanowski 

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. Dorothy 

 2 
Boyanowski claimed to have been the victim of a civil 

conspiracy by two local officials that prevented her from 

receiving contracts to work as a bus driver. The appeal of 

the verdict in Donald Boyanowski's favor requires 

consideration of the relation, and separation, between 

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 and 

against his former employer, the Capital Area Intermediate 

Unit ("CAIU"), was entered on his claim that the CAIU's 

conduct violated his substantive due process rights. He also 

won a verdict against John Nagle, who had been executive 

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 not 

implicate a federal constitutional interest. Constitutional 

claims of this sort have been implicitly rejected by the 

Supreme Court, see Siegert v. Gilley, 500 U.S. 226 (1991), 

and find no basis in our jurisprudence. We will therefore 

set aside the jury verdict in Mr. Boyanowski's favor. 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 decision 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 interfere with 

her contract rights as part of their campaign against 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'sfinding that 

the underlying tort did not occur, we conclude that the civil 

conspiracy claim can not survive. See GMH Assoc., Inc. 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. 1987). We 

will therefore set aside the verdict on civil conspiracy as 

well, and remand with directions to enter judgment for the 

defendants on all counts. 

 3 
I. 

The CAIU is a governmental entity operating under 

Pennsylvania's public school laws. Intermediate units 

("IUs") are part of the state's public school system 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 directors of 

the IU is elected from the boards of directors of the 

component school districts. See id. S 9-960. The CAIU 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 region. 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 Frye was 

the Assistant Executive Director and succeeded Nagle as 

Executive Director. 

Until his retirement in March 1993, Donald Boyanowski 

was the CAIU transportation supervisor. After retiring, he 

established Boyo Transportation Services, Inc. ("Boyo"), 

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 rights. At trial, 

he produced evidence that Nagle unfairly blamed him for 

rising costs of the CAIU program that occurred while he 

was a supervisor, and had referred to Mr. Boyanowski as a 

"crook" in a meeting of the CAIU superintendents council. 

Mr. Boyanowski alleged these actions were part of a

concerted effort to keep him from obtaining any contracts. 

The jury found that the CAIU's and Nagle's conduct 

violated Mr. Boyanowski's substantive due process rights, 

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 against 

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

Nagle was entitled to qualified immunity on the substantive 

due process claim, and it set aside the verdict and damages 

against him. The CAIU appeals the substantive due process 

judgment against it, and Mr. Boyanowski cross appeals 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. After her 

husband established Boyo, Ms. Boyanowski's contract was 

not renewed. She contended that Frye and Nagle engaged 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 contract was 

not renewed, but also that Frye had made statements that 

were relayed to one of CAIU's busing contractors that hiring 

her would not be a "good idea," and that this 

communication occurred while Nagle was still in charge. 

Ms. Boyanowski also produced evidence that Nagle had 

sent her a letter informing her that her contract would not 

be renewed. The jury found for the defendants on the 

tortious interference with contract claim, but ruled in Ms. 

Boyanowski's favor as to the civil conspiracy, awarding her 

$50,000 against Nagle and $100,000 against Frye. The 

defendants also appeal this judgment. 

The District Court had jurisdiction over Donald 

Boyanowski's civil rights claim under 28 U.S.C.SS 1331, 

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 legal 

questions is plenary. 

II. 

The core of due process is the protection against 

arbitrary governmental action and has procedural and 

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 procedures 

 5 
that it employs, and covers government conduct in both 

legislative and executive capacities. See id. at 846. The 

CAIU's appeal requires us to address executive conduct 

alleged to have infringed upon Donald Boyanowski's rights 

as protected by the Due Process Clause of the Fourteenth 

Amendment. 

Unfortunately for Mr. Boyanowski, his substantive due 

process claim is properly read as a state law defamation 

claim. This is even made clear by his own brief, which 

indicates that his S 1983 claim is based on defamation and 

exists solely to circumvent Pennsylvania sovereign 

immunity against state tort claims. As the Boyanowskis' 

brief recites: 

 According to appellants, if a government entity is 

 interested in doing business, and in the process uses 

 its political power and muscle to systematically destroy 

 the business opportunities of a competing private 

 citizen through slur, innuendo, and outright false 

 accusations, then the misconduct is simply not 

 actionable. In Pennsylvania sovereign immunity 

 protects government from tortious interference with 

 contracts suits. Appellants know there is no adequate 

 recourse under state defamation law also because 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 to elevate an 

ordinary tort to a constitutional violation. The degree to 

which Pennsylvania wishes to waive sovereign immunity 

claims for state causes of action is the quintessence of a 

state law question. 

In instructing the jury on Mr. Boyanowski's substantive 

due process claim, the District Court charged: 

 You must first decide if each of plaintiffs were 

 deprived of a fundamental right. You are advised that 

 there is no constitutionally protected right to obtain 

 future government contracts, and that suspension or 

 debarment from bidding on government contracts may 

 be a basis for liability only if it is based upon a charge 

 of fraud or dishonesty. 

 6 
 Plaintiffs must therefore show that the government 

 officials stigmatized plaintiff by publishing charges of 

 fraud or dishonesty which were substantially and 

 materially false, and that the defendants making them 

 knew they were false or had serious doubts about the 

 truth of these statements, and that those statements 

 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 evidence, 

we must determine if the substance of the charge was 

correct, i.e., whether defamatory statements that curtail a 

plaintiff 's business opportunities suffice to support a 

substantive due process claim. At the outset of this inquiry, 

we must be mindful of the Supreme Court's commands in 

addressing the interplay of constitutional and state 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. Davis, 424 

U.S. 693, 701 (1976). Second, we must remember that"[a]s 

a general matter, the [Supreme] Court has always been 

reluctant to expand the concept of substantive due process 

because guideposts for responsible decisionmaking in this 

uncharted area are scarce and open-ended. The doctrine of 

judicial self-restraint requires us to exercise the utmost 

care whenever we are asked to break new ground in this 

field." Collins v. City of Harker Heights , 503 U.S. 115, 125 

(1992) (citation omitted). Addressing the substantive due 

process claim, therefore, requires scrupulous attention to 

the guideposts that have previously been established. 

A. 

We note preliminarily that establishing a substantive due 

process claim even when executive action has infringed an 

interest protected by the Due Process Clause is difficult. 

"Our cases dealing with abusive executive action have 

repeatedly emphasized that only the most egregious official 

conduct can be said to be `arbitrary in the constitutional 

sense. . . .' " County of Sacramento v. Lewis, 523 U.S. 833, 

 7 
846 (1998) (quoting Collins v. Harker Heights , 503 U.S. 

115, 129 (1992)) (emphasis added). For executive conduct, 

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 whether 

the challenged action rises to this level has been described 

as a "threshold" question in a challenge to an executive 

action. See id. at 847 n.8 ("[T]he threshold question is 

whether the behavior of the governmental officer is so 

egregious, so outrageous, that it may fairly be said to shock 

the contemporary conscience. . . . Only if the necessary 

condition of egregious behavior were satisfied would there 

be a possibility of recognizing a substantive due process 

right to be free of such executive action . . . ."). 

Though we construe the trial record in Mr. Boyanowski's 

favor, we cannot agree that the conduct of which he

complains rises to the level required by the Supreme Court 

in Lewis. The statements allegedly made about Donald 

Boyanowski--that he was a "crook" and was responsible for 

cost overruns of the CAIU's transportation program--had 

no direct legal effect upon him. He was not prohibited from 

bidding on contracts or otherwise restricted in his conduct, 

and the comments were not publicized in a manner that 

would humiliate him before the community at large. At 

least one of our sister circuits has found that far more 

defamatory 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 coach 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 substantive due 

process claim as described by the Supreme Court in Lewis. 

At worst, the evidence indicates sharp business practices 

by a competitor. 

It is true that Lewis teaches that what"shocks the 

conscience" varies from circumstance to circumstance. See 

Lewis, 523 U.S. at 850 ("Deliberate indifference that shocks 

in one environment may not be so patently egregious in 

 8 
another, and our concern with preserving the constitutional 

proportions of substantive due process demands an exact 

analysis of circumstances before any abuse of power is 

condemned as conscience-shocking."). We need not, 

however, definitively calibrate the egregiousness level that 

Lewis would require of a defamation-type claim because 

other precedent makes clear that this sort of claim cannot 

present a substantive due process violation in thefirst 

place. 

B. 

The Supreme Court has made clear that federal courts 

are not to view defamatory acts as constitutional violations. 

In Paul v. Davis, 424 U.S. 693 (1976), a procedural due 

process case, the Court held that defamation by itself did 

not harm a "liberty" interest protected under the 

Fourteenth Amendment. Paul involved a plaintiff whose 

name and photograph appeared on a police flyer that was 

captioned "Active Shoplifters" and distributed among 

merchants. The Court turned aside a procedural due 

process claim on the grounds that harm to reputation 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 holding was 

that the interest in reputation was neither "liberty" nor 

"property" that was protected by the Due Process Clause. 

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 psychologist 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. Army 

hospital in West Germany. That position required 

"credentialing," the securing of which required plaintiff to 

ask his former employer to provide information to the Army 

facility. In response to the request, his former supervisor 

wrote a letter that labeled plaintiff as inept, unethical, and 

untrustworthy. Plaintiff was subsequently denied the 

necessary credentials and ultimately lost his position. He 

then brought a Bivens action against his former supervisor. 

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

Though the Court acknowledged that defamation injuries 

do indeed lead to monetary losses that flow from the injury 

to reputation, it stated that "so long as such damage 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 234. "The 

statements contained in the letter would undoubtedly 

damage the reputation of one in his position, and impair 

his future employment prospects. But the plaintiff in Paul 

v. Davis similarly alleged serious impairment of his future 

employment opportunities as well as other harm." Id. The 

Court therefore concluded that Siegert failed to allege a 

constitutional deprivation. See id. at 233-34. 

Donald Boyanowski also alleged that harm flowed from 

the statements made about him insofar as he was unable 

to receive any of the contracts for which he bid. We do not 

see how his harm was of a different nature from that 

alleged in Siegert. Both plaintiffs alleged harm flowing from 

defamatory statements made by former employers. It is 

therefore hard to see how Siegert is not fatal to the 

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. Reich v. 

Beharry, 883 F.2d 239, 244 (3d Cir. 1989) ("[I]n this circuit 

at least, not all property interests worthy of procedural due 

process protection are protected by the concept of 

_________________________________________________________________ 

1. The similarity of harms in the two cases also would appear to doom 

any effort to link the "stigma plus" analysis that has characterized 

procedural due process cases that have arisen in wake 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), with the substantive due 

process claim urged by Mr. Boyanowski. Even if we were to entertain 

such an application, our precedents are decidedly against 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 government defamation does 

not constitute a claim for deprivation of a constitutional liberty 

interest."); Sturm v. Clark, 835 F.2d 1009, 1012-13 (3d Cir. 1987) ("Most, 

if not all, charges of defamation are inevitably accompanied by financial 

loss."). 

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

796 (5th Cir. 1983) (rejecting substantive due process claim 

arising from stigmatization of discharged employee but 

discussing potential availability of procedural name-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, therefore, 

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 due 

process claims. We have recognized substantive due 

process claims in certain limited circumstances when the 

existence of procedural due process protections is not at 

issue. See, e.g., Independent Enters., Inc. v. Pittsburgh 

Water & Sewer Auth., 103 F.3d 1165, 1179 (3d Cir. 1997). 

We have never, however, suggested that a substantive due 

process cause of action lies for the kind of claim pursued 

in the District Court. 

Independent Enterprises, Inc. v. Pittsburgh Water and 

Sewer Authority is perhaps the most analogous precedent. 

The facts in that case presented a stronger basis for a 

substantive due process claim than do those in the case at 

hand because there was evidence of direct interference by 

executive actors with the procurement of contracts. The 

plaintiff was a contractor who had entered into a consent 

decree with a city water and sewer authority. That decree 

precluded the contractor's being barred based on past 

performance from bidding on city contracts. In subsequent 

bids, the contractor was the low bidder on two contracts 

and received neither. In one case, the contracting authority 

was ordered to halt awarding contracts to the contractor 

because of a cost overrun in a recent project. These actions 

appeared to violate the consent decree, which provided 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 state a 

substantive due process claim, we summarized our 

substantive due process jurisprudence as follows: 

 11 
 Although the Third Circuit has recognized that a 

 governmental deprivation that comports with 

 procedural due process may still give rise to a 

 substantive due process claim "upon allegations that 

 the government deliberately and arbitrarily abused its 

 power," we have also held that a substantive due 

 process claim grounded in an arbitrary exercise of 

 governmental authority may be maintained only where 

 the plaintiff has been deprived of a "particular quality 

 of property interest." Although our court has suggested 

 that only fundamental property interests are worthy of 

 substantive due process protection, it has provided 

 little additional guidance regarding what specific 

 property interests should receive substantive due 

 process protection. 

Id. at 1179 (citations omitted). 

Though it ultimately "le[ft] for another day definition of 

the precise contours of the `particular quality of property 

interest' entitled to substantive due process protection," 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 interest 

 worthy of substantive due process protection," 

 [DeBlasio v. Zoning Bd. of Adjustment for the Township 

 of West Amwell, 53 F.3d 592, 600 (3d Cir. 1995)], but 

 we have found that neither interest in prompt receipt 

 of payment for professional services provided to the 

 state, Reich, 883 F.2d at 244-45, nor state law 

 entitlement to water and sewer services, Ransom v. 

 Marrazzo, 848 F.2d 398, 411-12 (3d Cir. 1988), are the 

 "certain quality" of property interest worthy of 

 substantive due process protection. We have also 

 strongly suggested in dictum that a student's right to 

 continued enrollment in a graduate program does not 

 rise to such a level on the ground that such an interest 

 bears " `little resemblance to the fundamental interests 

 that previously have been viewed as implicitly protected 

 by the Constitution.' " Mauriello v. Univ. of Med. & 

 Dentistry of N.J., 781 F.2d 46, 50 (3d Cir. 1986) 

 (quoting Regents of Univ. of Michigan v. Ewing , 474 

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

 (Powell, J., concurring)). 

Id. at 1180 (quoting Homar v. Gilbert , 89 F.3d 1009, 1021 

(3d Cir. 1996), rev'd on other grounds, 520 U.S. 924 

(1997)). 

Applying this precedent, we ruled that the facts in

Independent Enterprises did not give rise to a viable 

substantive due process claim, observing that we had"no 

difficulty" in concluding that the alleged interest was not 

the sort of fundamental interest protected by substantive 

due process. See id. We view the facts in Independent 

Enterprises, where defendants actively prevented plaintiffs 

from winning contracts in violation of a consent decree, as 

constituting a more compelling claim that a protected 

interest had been violated than that proffered by Donald 

Boyanowski, who was never barred from having his bids 

considered. There is no basis in our substantive due 

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 interest to 

engage in the transportation business. In its denial of 

CAIU's post-trial motion, the District Court defended this 

characterization by referring to Meyer v. Nebraska, 262 

U.S. 390 (1923). The District Court described Donald 

Boyanowski's defamation-based damages as "derived from a 

fundamental liberty interest to engage in the common 

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 view Meyer 

as helpful to the substantive due process claim before us. 

Meyer involved a prosecution of a teacher who violated a 

statutory bar on the teaching of a foreign language. In 

reversing the conviction on due process grounds, the 

Supreme Court uttered the broad and celebrated language 

 13 
about 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 over 

children. See id. at 400. The more analogous situation for 

Mr. Boyanowski, if Meyer were relevant, would have 

involved a prosecution targeting him for the mere act of 

bidding on transportation contracts. His actual situation 

was too remote from the facts of Meyer for that case 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 search 

warrant executed upon him while his client was testifying 

before a grand jury violated the attorney's Fourteenth 

Amendment right to practice his profession. In so doing, 

the Court focused on the language of Meyer on which the 

District Court relies here, but specifically rejected its 

application to the plaintiff 's circumstances. See id. at 1295. 

We similarly view Meyer as too slender a reed on which 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 the 

constitutional aegis. Equating a defamatory statement that 

leads to a third party's not extending a contract to a 

frustrated plaintiff with the deprivation of the plaintiff '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 treacherous waters 

of government contracting, but to leap to the broad level of 

generality necessary to classify the harm in substantive 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 in Siegert, 

 14 
upholding the verdict would ignore the Supreme Court's 

twin commands that the Fourteenth Amendment not 

become a font of tort law that supplants state systems, see 

Paul, 424 U.S. at 701, and that the cause of action

encompassed by substantive due process not be expanded 

without extreme care, see Collins, 503 U.S. at 125.

Because Donald Boyanowski's claim, the record evidence, 

and the District Court's jury instruction all point to a state 

law defamation claim and not a constitutional substantive 

due process claim, we will reverse the judgment entered 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 District 

Court's grant of qualified immunity to Nagle. 

III. 

We turn to Dorothy Boyanowski's jury verdict for civil 

conspiracy against Frye and Nagle. The defendants offer 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 interference with 

contract requires dismissal of the civil conspiracy verdict. 

Second, they contend that the defense verdict on the tort 

claim vitiates any award of damages on the conspiracy 

claim. Third, the defendants argue that they had no legal 

capacity to conspire; they submit that because under 

Pennsylvania precedent a corporation cannot conspire with 

itself, Dorothy Boyanowski had to prove that Frye or Nagle 

was acting outside the scope of his duty for personal 

reasons. Fourth, the defendants claim that there was no 

evidence of a concerted action or common scheme 

necessary to sustain a conspiracy finding. Fifth, the 

defendants assert that no evidence was presented 

indicating that Frye and Nagle willfully engaged in unlawful 

conduct, and that such evidence is a prerequisite for the 

removal of their statutory immunity under Pennsylvania 

law. Furthermore, the defendants submit that Frye and 

Nagle should have been given absolute immunity as"high 

public officials." Finally, the defendants claim that there 

was insufficient evidence to support the jury's verdict 

against them on the claim of civil conspiracy. 

 15 
Many of these assignments of error pertain to the 

sufficiency of the evidence presented by Ms. Boyanowski at 

trial. Unfortunately, rather than provide any citations to the 

record in their brief on appeal, which consisted mostly of 

assertions that were unsupported by citation, legal or 

otherwise, the Boyanowskis' counsel elected simply to 

submit several volumes of trial transcript, refer to the trial 

record as a whole, and unhelpfully tell this Court that "only 

a review of the entire record can totally illuminate the entire 

picture heard by the jury." Appellees' Br. at 14. At oral 

argument the panel afforded counsel a second opportunity 

to point to specific instances in the record that supported 

the jury's findings in this matter. Although the evidence in 

the record finally cited by the Boyanowskis' lawyer is 

exceedingly thin, possibly to the point of justifying reversal 

on insufficiency grounds alone, we need not consider the 

weight of the evidence presented at trial because the issue 

can ultimately be disposed of on the defendants'first 

assignment of error. 

In their brief, the defendants point to Pennsylvania 

precedent that holds that a claim of civil conspiracy cannot 

be pled without also alleging an underlying tort. See, e.g., 

Nix. v. Temple Univ., 596 A.2d 1132, 1137 (Pa. Super. Ct. 

1991); Pelagatti v. Cohen, 536 A.2d 1337, 1342 (Pa. Super. 

Ct. 1987). They fail, however, to cite authority for the 

proposition that once an underlying tort has been alleged, 

only a finding that the underlying tort has occurred will 

allow an appellate court to sustain a similar finding on the 

civil conspiracy charge. The rule that civil conspiracy may 

not exist without an underlying tort is a common one. See 

In re Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 

781, 789 & n.7 (3d Cir. 1999) (collecting cases). Indeed, "we 

are unaware of any jurisdiction that recognizes civil 

conspiracy as a cause of action requiring no separate 

tortious conduct." Id. at 789. It is not surprising that there 

are few cases dealing with the sort of mixed verdict we have 

here, as a jury would not logically be expected to determine 

that civil conspiracy occurred, but that the underlying tort 

did not. Candidates for such verdicts would usually be 

screened out at the summary judgment or pleading stage, 

and that is indeed where most precedents that state the 

underlying tort rule are to be found. We must therefore 

 16 
predict whether the Pennsylvania Supreme Court would 

apply a rule that is normally employed at the pleading 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 state 

law we examine: (1) what the Pennsylvania Supreme Court 

has said in related areas; (2) the decisional law of the 

Pennsylvania intermediate courts; (3) federal appeals and 

district court cases interpreting the state law; and (4) 

decisions from other jurisdictions that have discussed 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 Pennsylvania 

Superior Court recently decided a case that would 

decisively resolve the issue if we follow the resulting 

precedent. See GMH Assoc., Inc. v. Prudential Realty 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 defendants liable to 

plaintiffs for breach of contract, breach of duty to negotiate 

in good faith, promissory estoppel, fraudulent 

misrepresentation, fraudulent non-disclosure, and civil 

conspiracy. See id. at *5. On appeal, the Pennsylvania 

Superior Court concluded that no fraud had actually

occurred. See id. at *10. The claim of fraud was the 

underpinning for the civil conspiracy claim. See id. at *13. 

Because the fraud claim was set aside, the court held 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 fraud was 

 committed, we correspondingly find that no civil 

 conspiracy to defraud occurred. See generally 

 [Rutherford v. Presbyterian-Univ. Hosp., 612 A.2d 500, 

 508 (Pa. Super. 1992)] (citing Rose v. Wissinger, 294 

 Pa. Super. 265, 439 A.2d 1193 (1982) (where 

 complaint fails to set forth claim for defamation or 

 outrageous conduct causing emotional distress, there 

 could be no conspiracy to commit those acts); and 

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

 1376 (Pa.Cmwlth. 1982) (under Pennsylvania law, 

 when a party fails "to sufficiently allege in[other] 

 counts any unlawful act or unlawful means" the 

 conspiracy claim must also fail when it is based on 

 these claims)). 

Id. 

As the quoted passage makes clear, the court did not 

dismiss the conspiracy claims based on an independent 

evaluation of their viability in light of the record developed 

by the trial court. Rather, the failure of the underlying 

fraud claim sufficed as a matter of law to vitiate the finding 

of civil conspiracy notwithstanding the fact that it 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 convinced 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 thanfinding 

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 an 

underlying tort in the pleading stage similarly requires that 

the tort be proven if a civil conspiracy claim is to prevail. To 

be sure, there are arguments to the contrary. One could 

argue the reverse inference and maintain that the jury's 

finding that there was a civil conspiracy against Dorothy 

Boyanowski that caused damage means that the jury's

ruling for the defendants in the tortious interference of 

contract claim was actually the legally incorrect one. 

Another argument is that the two causes of action, 

whatever their linkage in the pleading stage, are distinct. 

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. Wilson, 102 

F.3d 85, 90-91 (3d Cir. 1996) (ruling that district court 

erred as a matter of law when it directed judgment 

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

ground that it was inconsistent with the jury's verdict on 

another claim). 

We nonetheless believe that the defendants' reading is 

the better one in light of the nature of civil conspiracy. 

"Since liability for civil conspiracy depends on performance 

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. 1983). A 

verdict on civil conspiracy should yield to a finding 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 courts in 

other jurisdictions have made similar holdings to that 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. , 62 F.3d 

1417, 1995 WL 452087, (6th Cir. July 27, 1995) (affirming 

district court's dismissal of civil conspiracy claim after close 

of plaintiff 's evidence because of failure to prove underlying 

tort). 

In light of the clear statement by the Pennsylvania

Superior Court, practice in other jurisdictions, and what we 

perceive as the logical rule, we predict that if faced with 

this matter, the Pennsylvania Supreme Court would reverse 

Dorothy Boyanowski's judgment for civil conspiracy. We 

therefore need not reach the defendants' other arguments 

for reversing the verdict. 

The judgment of the District Court will be reversed, with 

direction to enter judgment in favor of the defendants on all 

counts. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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