J-A25018-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DR. THOMAS WINTER 

Appellant

v.

THE PENNSYLVANIA STATE 

UNIVERSITY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 745 MDA 2020

Appeal from the Order Entered March 20, 2020

In the Court of Common Pleas of Luzerne County Civil Division at No(s): 

8789 of 2016

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 30, 2020

Appellant, Dr. Thomas Winter, appeals from the March 20, 2020 order 

granting summary judgment in favor of The Pennsylvania State University 

(“Penn State”). We affirm.

The record demonstrates that, for 38 years, Penn State employed 

Appellant as a tenured professor of physics in the Eberly College of Science at 

Penn State’s Wilkes-Barre Campus in Lehman, Pennsylvania, Luzerne County. 

Effective November 20, 2014, Penn State terminated Appellant from his 

employment for “grave misconduct” stemming from Appellant’s alleged sexual 

harassment of an undergraduate student.

Appellant filed a complaint on August 23, 2016, and an amended 

complaint on October 4, 2016, against Penn State that raised a claim for

breach of contract related to his alleged unlawful termination and Penn State’s 
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alleged failure to act in good faith throughout the termination process. Penn 

State filed preliminary objections in the nature of a demurrer to Appellant’s 

amended complaint, which the trial court overruled. Penn State subsequently 

filed an answer containing new matter to Appellant’s amended complaint.

On July 18, 2019, Penn State filed a motion for summary judgment, 

arguing, “Penn State followed its policy and process for dismissal of tenured 

faculty members when it terminated [Appellant]” and “[u]nder Pennsylvania 

law, [Appellant] is not entitled to re-litigate the merits of that decision[.]” See

Penn State’s Motion for Summary Judgment, 7/18/19, at ¶ 70. On December 

12, 2019, the trial court entertained argument on Penn State’s motion for 

summary judgment. On March 20, 2020, the trial court, concluding that Penn 

State acted in good faith and complied with its stated policies and procedures 

for the dismissal of a tenured faculty member, entered an order granting 

summary judgment in favor of Penn State.

1

 This appeal followed.

Appellant raises the following issue for our review:

Did the trial court commit an error of law by granting [Penn 

State’s] motion for summary judgment, where a genuine issue of 

material fact exists with respect to whether [Penn State] failed to 

conduct the termination process and contractually agreed upon 

procedures as set forth in [Penn State’s] polices, [specifically] 

HR-70[] and [AD]-85, in good faith as required by Pennsylvania

law?

Appellant’s Brief at 4 (extraneous capitalization omitted).

____________________________________________

1 The trial court also filed an opinion on March 20, 2020.
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Appellant’s issue challenges the trial court’s order granting summary 

judgment, for which our standard and scope of review are well-settled.

A reviewing court may disturb the order of the trial court only 

where it is established that the [trial] court committed an error of 

law or abused its discretion. As with all questions of law, our 

review is plenary. 

In evaluating the trial court's decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. [See] Pa.R.C[iv].P. 1035.2. [Rule 

1035.2] states that where there is no genuine issue of material 

fact and the moving party is entitled to relief as a matter of law, 

summary judgment may be entered. Where the non-moving 

party bears the burden of proof on an issue, he may not merely 

rely on his pleadings or answers in order to survive summary 

judgment. Failure of a non-moving party to adduce sufficient 

evidence on an issue essential to his case and on which it bears 

the burden of proof establishes the entitlement of the moving 

party to judgment as a matter of law. Lastly, we will view the 

record in the light most favorable to the non-moving party, and 

all doubts as to the existence of a genuine issue of material fact 

must be resolved against the moving party.

Murphy v. Duquesne Univ. of The Holy Ghost, 777 A.2d 418, 429 (Pa. 

2001) (case citations, ellipses, and quotation marks omitted) (rejecting the 

“need or reason to devise special rules for restricting review” of a dispute 

involving an institution of higher learning in a breach of contract case).

In a cause of action alleging a breach of contract, the plaintiff must 

prove: “(1) the existence of a contract, (2) a breach of a duty imposed by the 

contract, and (3) damages.” Sullivan v. Chartwell Inv. Partners, LP, 873 

A.2d 710, 716 (Pa. Super. 2005) (citation omitted). In evaluating whether a 

party is entitled to summary judgment, this Court must first determine the 
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terms of the contract, for which the principles of law that control this 

determination are well-settled.

The fundamental rule in interpreting the meaning of a contract is 

to ascertain and give effect to the intent of the contracting parties. 

The intent of the parties to a written agreement is to be regarded 

as being embodied in the writing itself. The whole instrument 

must be taken together in arriving at contractual intent. Courts 

do not assume that a contract's language was chosen carelessly, 

nor do they assume that the parties were ignorant of the meaning 

of the language they employed. When a writing is clear and 

unequivocal, its meaning must be determined by its contents 

alone.

Only where a contract's language is ambiguous may extrinsic or 

parol evidence be considered to determine the intent of the 

parties. A contract contains an ambiguity if it is reasonably 

susceptible of different constructions and capable of being 

understood in more than one sense. This question, however, is 

not resolved in a vacuum. Instead, contractual terms are 

ambiguous if they are subject to more than one reasonable 

interpretation when applied to a particular set of facts. In the 

absence of an ambiguity, the plain meaning of the agreement will 

be enforced. The meaning of an unambiguous written instrument 

presents a question of law for resolution by the court.

Murphy, 777 A.2d at 429-430 (citations and quotation marks omitted).

Here, Appellant, in sum, argues that a genuine issue of material fact 

exists as to whether Penn State followed the policies and procedures outlined 

in “Penn State Human Resources Policy HR-70 Dismissal of Tenured or 

Tenure-Eligible Faculty Members” (“HR-70”) in good faith when Penn State 

terminated Appellant’s employment. Appellant’s Brief at 12-24. Specifically, 

Appellant asserts that Penn State deviated from the procedures, as set forth 

in HR-70, when Kenneth Lehrman, Vice President for Affirmative Action and 

Title IX Coordinator, (“Lehrman”) conducted what Appellant characterized as 
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an “ambush interview” after Lehrman received a complaint of sexual 

harassment involving Appellant and did not provide Appellant notice of the 

allegations prior to the meeting. Id. at 14-15. Appellant contends the trial 

court erred when it concluded that the “ambush interview” was not part of the 

formal termination proceedings, as set forth in HR-70, because the meeting

was investigatory in nature. Id. at 16. Rather, Appellant argues that the 

meeting was the initial first step in the termination process, that the interview 

failed to comply with the requirements set forth in HR-70, and that Penn State, 

therefore, did not act in good faith when it deviated from the requirements 

set forth in HR-70. Id. at 17. Appellant also contends that Penn State did 

not act in good faith during Appellant’s meeting with Marilyn L. Hanes, Vice 

President for Commonwealth Campuses and Dean of University College,

(“Hanes”) and Daniel J. Larson, Dean of the Eberly College of Science, 

(“Larson”) subsequent to his “ambush interview” with Lehrman when Hanes 

and Larson failed to question Appellant about the “apparent conflict between” 

Lehrman’s report pertaining to the sexual harassment allegations2 and 

Appellant’s written rebuttal of the allegations. Id. at 18. Appellant also 

asserts that a genuine issue of material fact exists as to whether Penn State 

acted in good faith in conducting the Standing Joint Committee on Tenure 

____________________________________________

2 On May 12, 2014, Lehrman wrote the Chancellor of Penn State’s

Wilkes-Barre Campus to report his conclusions after conducting an 

investigation into the sexual harassment allegations and to recommend that 

Penn State initiate dismissal proceedings against Appellant. See Penn State’s 

Motion for Summary Judgment, 7/18/19, at “Doc. 8”, pages 239-244.
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(“SJCT”) termination hearings because the chairperson of the SJCT was 

“inadequately trained and [had] a conflict of interest with a witness.” Id. at 

19-22. Finally, Appellant submits that a genuine issue of material fact exists 

as to whether Penn State acted in good faith when the Office of the Provost, 

having “just received the SJCT’s report [recommending Appellant’s 

termination] the day before, already had a draft termination letter prepared 

to forward to [Eric J. Barron, President of Penn State, (“Barron”)] for his 

‘review and signature’.” Id. at 23.

Penn State asserts that the trial court correctly determined that the 

termination proceedings contemplated by HR-70 were not initiated by 

Lehrman’s meeting with Appellant. Penn State’s Brief at 15-17. Instead, Penn 

State argues that the May 22, 2014 letter from Hanes to Appellant initiated 

the termination proceedings pursuant to HR-70.

3

 Id. Penn State contends,

it is unreasonable to construe the process of investigating possible 

misconduct as constituting part of the HR[-]70 dismissal process. 

This is apparent from any reasoned interpretation of HR[-]70. 

Indeed, to suggest otherwise would mean that the provisions of 

HR[-]70 apply even when an investigation results in no finding of 

misconduct sufficient to warrant the initiation of dismissal 

proceedings.

____________________________________________

3 Following receipt of Lehrman’s report of May 12, 2014, Hanes sent a letter 

to Appellant dated May 22, 2014 entitled “Notice of Initiation of Process for 

Dismissal from University Employment”. Penn State’s Motion for Summary 

Judgment, 7/18/19, at Exhibit J. This letter gave Appellant notice of the 

initiation of the dismissal process pursuant to HR-70 and the reasons for 

seeking his dismissal. The letter also advised Appellant of his right to respond 

in writing, at a meeting, or both. Appellant chose both.
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Id. at 16. Penn State maintains that Appellant’s termination complied with 

the requirements set forth in HR-70 and that Appellant is attempting to 

“secure a de novo judicial review of the merits of his termination under the 

guise of a good faith argument.” Id. at 18 (citation omitted).

The trial court set forth its rationale for granting summary in favor of 

Penn State as follows:

There is no dispute between the parties that the "contract” at issue 

in this matter is [HR-70,] which was in effect at the time of 

[Appellant’s] termination from employment by [Penn State.]

There is also no dispute that, under Pennsylvania Law, [Appellant]

is "not entitled to litigate the merits of his termination in this 

breach of contract action, the question of whether his misconduct 

should have resulted in the forfeiture of tenure having been 

conclusively and finally decided" as a result of the process 

conducted pursuant to HR-70. [See Murphy, 777 A.2d at 434.]

. . .

[Appellant] argues that [Penn State] failed to comply with HR-70's 

terms in two ways: (1) The conducting of an "ambush interview" 

of [Appellant] by [Lehrman] and (2) A breach of the "duty of good 

faith" in [Penn State’s] “performance" of the contract.

It is undisputed that when [Appellant] was summoned to the office 

of Albert Lozano, [] Director of Academic Affairs at Penn State's 

Wilkes-Barre Campus, [(“Lozano”)] on March 20, 2014, he was 

given no advance notice that he was going to be interviewed by 

[] Lehrman regarding the allegations of sexual harassment that

had been [leveled] against him. [Appellant] asserts that this 

"ambush interview" violated the HR-70 process[,] which required 

that [Appellant] be "provided with written notice from the 

administrator(s) of the alleged misconduct." [Penn State]

counters that the notice provisions of HR-70 were not implicated 

until the "dismissal process" was initiated and that [] Lehrman's 

interview of [Appellant] was part of the "investigation" process 

that was being conducted in an effort to determine whether [Penn 

State] should pursue a termination of [Appellant’s] employment[,]

or not. Upon a close reading of HR-70, the [trial c]ourt agrees 
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with [Penn State] that the notice provision of HR-70 does not 

apply to an "investigatory process" but, rather, to the "initiation 

of dismissal process" should an investigation warrant it. In the 

present case, the [trial c]ourt concludes that the event that 

triggered the applicability of HR-70's notice and subsequent 

procedures was the post-investigation decision encompassed in 

the May 22, 2014 letter from [] Hanes to [Appellant] entitled

"Notice of Initiation of Process for Dismissal from University 

Employment."

With the exception of [] Lehrman's initial interview, [Appellant]

does not seriously question whether the other procedures set forth 

in HR-70 were followed, rather he asserts that they were not 

conducted in "good faith." As the Murphy Court stated, "when 

an employer expressly provides in an employment contract for a 

comprehensive evaluation and review process, a court may look 

to the employer[’]s good faith to determine whether the employer 

has[,] in fact[,] performed those contractual duties." Murphy, 

777 A.2d at 434, quoting Baker v. Lafayette, 504 A.2d 247, 255 

(Pa. Super. []1986). "The duty of good faith has been defined as 

honesty in fact in the conduct or transaction concerned." Creeger 

Brick and [Bldg.] Supply, Inc. v. Mid-State Bank and Trust 

Co., 560 A.2d 151, 153 (Pa. Super. []1989). A review of the 

entire record, including [Appellant’s] Answer and Exhibits in 

response to [Penn State’s] Motion for Summary Judgment, leaves 

the [trial c]ourt little doubt that [Penn State] carefully and 

precisely followed the process set forth in HR-70 and that no 

genuine issue of material fact has been raised by [Appellant] on 

which a jury could reasonably conclude that [Penn State] did not 

act in "good faith."

Trial Court Opinion, 3/20/20, at 3-6 (original ellipses and original brackets 

omitted).

In order to address the merits of Appellant’s issue, we must first look at 

the requirements set forth in HR-70 to determine the obligations of the parties 

involved. HR-70 states, in pertinent part, as follows:

PURPOSE:
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This policy is written to define the conditions and procedures 

under which tenured faculty members . . . may be dismissed from 

[Penn State] on grounds of adequate cause[.]

. . .

ADEQUATE CAUSE:

A tenured [] faculty member may be dismissed for adequate cause 

as determined in accordance with this policy. Adequate cause 

shall mean any one of the following: (i) lack of competence or 

failure to perform in relation to the functions required by the

appointment, (ii) excessive absenteeism, (iii) moral turpitude, or 

(iv) grave misconduct. . . .

INITIATION OF DISMISSAL PROCESS

A. The Steps That Shall be Followed to Initiate the 

Dismissal Process

1. Within a reasonable time after the occurrence of events that 

might give rise to termination for adequate cause are made 

known to the appropriate administrator(s), the faculty 

member will be provided with written notice from the 

administrator(s) of the alleged misconduct constituting 

adequate cause. The notice shall include a copy of or

references to this HR-70 policy and sufficient information 

concerning the allegations to enable the faculty member to 

make a meaningful response.

2. The faculty member will be given an opportunity to respond 

to the allegations either in writing or at a meeting with the 

appropriate administrator(s), or both, at the discretion of

the faculty member against whom allegations of misconduct 

have been made. The affected faculty member shall be 

accorded a reasonable amount of time to prepare a

response to the allegations.

3. The faculty member shall have the opportunity to meet with 

the appropriate administrator(s) and he or she will be given 

an explanation of the alleged misconduct. The 

administrator, at his or her discretion, may respond to the 

written submissions of the faculty member at this meeting.

The appropriate ombudsman shall be present as an

objective, informational resource at the meeting unless the 

faculty member waives, in writing, the right to have the 
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ombudsman present. The meeting may be continued at the

discretion of the administrator(s) should there be a need for 

additional time to resolve the matter or to obtain additional 

information or otherwise for other good cause.

4. Following this meeting, the faculty member will again be 

given an opportunity to respond in writing to the 

administrator(s).

B. Process After Initial Meeting

The purpose of the meeting(s) and responses listed above is to 

provide both parties with an understanding of the other party's 

position, as well as an opportunity to settle the matter without 

formal action.

1. If after the initial meeting an agreement is reached between 

the appropriate administrator(s) and the faculty member, 

then the matter will be resolved in accordance with the 

agreement.

2. If after the initial meeting(s) the matter remains 

unresolved, the appropriate administrator(s) may choose to 

dismiss the matter if no serious concerns remain regarding 

the faculty member's alleged misconduct. If serious 

concerns remain, the appropriate Dean will consult with the 

Executive Vice President and Provost about what further 

action, if any, should be taken.

C. Referral to Standing Joint Committee on Tenure

If both the Dean and the Executive Vice President and Provost 

concur that the disciplinary sanction of termination for adequate 

cause is warranted under the circumstances, the matter will be 

referred to the Standing Joint Committee on Tenure. The Dean 

will promptly advise the faculty member of that determination in 

writing by letter addressed to the affected faculty member and the 

Standing Joint Committee on Tenure. The Dean's letter shall set 

forth the specific basis for seeking adequate cause termination 

and the specific conduct which serves as the basis for the 

termination. Such written notification will advise the faculty 

member that the matter will be referred to the Standing Joint 

Committee on Tenure, unless the faculty member requests the 

opportunity to resign in lieu of termination.

. . .
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E. Burden of Proof

The burden of proof that adequate cause exists for the dismissal 

of the faculty member [] rests with [Penn State] and shall be 

satisfied only by clear and convincing evidence in the record 

considered as a whole.

STANDING JOINT COMMITTEE ON TENURE:

 Role of the Committee

The Standing Joint Committee on Tenure acts solely in an 

advisory capacity to the President on matters pertinent to 

the dismissal of tenured [] faculty. It holds hearings to 

receive evidence and adjudicate the matter and to provide 

the President with a reasoned opinion and recommendation 

for action with respect to the request to dismiss a faculty 

member. The Standing Joint Committee on Tenure shall

exercise its obligations in accordance with the procedural 

rules described in this HR-70.

 Establishment of the Committee

The Standing Joint Committee on Tenure shall consist of five 

members: two members selected by the administration, and 

three tenured faculty members selected by the elected 

faculty members of [Penn State’s] Senate. The Chair will 

be chosen by the Committee from the elected tenured 

faculty members.

 Committee Procedural Rules

1. Preliminary Evaluation. The Standing Joint 

Committee on Tenure will first evaluate whether or not 

the charges of misconduct described in the Dean's letter, 

if true, constitute adequate cause for dismissal. If the 

Committee rules that the charges, taken as true, do not 

constitute adequate cause for dismissal, the Committee 

will issue a pre-hearing report, recommending to the 

President that no further proceedings occur. If the 

President agrees with the Committee's pre-hearing 

report, he or she will terminate the dismissal process.

However, should the President disagree with this initial 

determination, he or she shall so notify the Standing 

Joint Committee on Tenure and the Standing Joint 
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Committee on Tenure shall, promptly upon receipt of this 

notice, conduct the hearing described below.

Should the Standing Joint Committee on Tenure rule that 

the charges may, if proven, constitute adequate cause 

for dismissal, the hearing will be conducted and all 

parties will be notified in writing.

2. Commencement of Hearing. The faculty member 

against whom dismissal is sought shall have the 

opportunity to be heard and present his or her own 

defense before the Standing Joint Committee on Tenure.

The Standing Joint Committee on Tenure shall convene a 

hearing within sixty (60) days, if reasonably possible, 

after the date of the Dean's letter referring the matter to 

the Committee. The hearing shall be limited to the

matters described in the letter relating to the grounds on 

which termination of the faculty member is sought.

Except in extenuating circumstances and subject to the 

concurrence of both parties, all members of the 

Committee must be present when the Committee meets

at the hearing, including any continuance of the hearing, 

and during all deliberations of the Committee in 

connection with the hearing.

. . .

4. Presiding Official. The Committee Chair shall conduct 

the hearing and the subsequent deliberations of the 

Committee.

. . .

12. Committee Recommendations. At the conclusion of 

the hearing, the Committee shall close the record and 

meet in executive session, along with the Committee's 

legal advisor, in order to deliberate. There shall be no 

post-hearing submissions by either party, unless directed 

by the Committee. The Committee shall issue a report 

on the hearing to the President, with a copy to the faculty 

members and the appropriate Dean, within 30 days from 

the date of completion of the hearing, unless extenuating 

circumstances require otherwise. The report shall set 

forth the Committee's findings based on the evidence

presented at the hearing and its recommendation with 

respect to termination for adequate cause. Where the 
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conclusion of the Committee is not unanimous, the report

must fairly reflect the minority views expressed by the 

members. Dissenting or concurring opinions may be 

included at the request of any Committee member.

13. Final Decision by President. The President shall be 

the final decision-maker in all cases considered by the 

Standing Joint Committee on Tenure. The President shall 

notify the faculty member, the Standing Joint Committee 

on Tenure, and the appropriate Dean of his or her 

decision in writing. Once the President has made a final 

determination as to whether adequate cause for 

termination exists, the matter shall be closed and not 

subject to further review.

Appellant’s Amended Complaint, 10/4/16, at Exhibit “A”.

Here, the record demonstrates that on March 3, 2014, a “Penn State 

Sexual Harassment/Discrimination/Violence Report Form” was filed with Penn 

State administration on behalf of an undergraduate student and against 

Appellant alleging that Appellant sexually harassed the student in violation of 

Penn State’s “Policy AD85 - Discrimination, Harassment, Sexual Harassment 

and Related Inappropriate Conduct” (“AD-85”).

4

 See Appellant’s Amended 

Complaint, 10/4/16, at ¶¶ 8, 24, 37; see also Penn State’s Motion for 

Summary Judgment, 7/18/19, at “Doc. 7”, pages 234-237. On March 20, 

2014, Lozano arranged, via an email,5for Lehrman, who was responsible for 

____________________________________________

4 AD-85 defines “sexual harassment” as “unwelcome sexual advances, 

requests for sexual favors, and other verbal or physical conduct of a sexual 

nature that is unwanted, inappropriate, or unconsented to.” See Appellant’s 

Amended Complaint, 10/4/16, at Exhibit “B”.

5 Lozano’s email to Appellant stated, “I need to talk with you regarding an 

academic matter. I will appreciate if you can come to see me tomorrow[, 
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investigating sexual harassment complaints,6to meet with Appellant the next 

day, but did not himself take part in the meeting. On May 12, 2014, Lehrman 

authored a report to the Chancellor of Penn State’s Wilkes-Barre Campus, 

recommending that dismissal proceedings be initiated against Appellant in 

connection with the sexual harassment allegations. On May 22, 2014, Hanes 

provided Appellant written notice that Penn State was initiating the process 

for dismissal of Appellant from his employment. The letter, in pertinent part, 

stated, “In accordance with the provisions of [HR-70], a copy of which is 

enclosed, I am writing to advise you that this letter initiates the process for 

your possible dismissal from [Penn State] employment, including your tenured 

faculty appointment.” See Hanes Letter, 5/22/14, at unnumbered page 1. 

The letter advised Appellant that he could respond to the notice either in 

writing, or at a meeting with Hanes, or both. Id. Appellant filed a written 

response to Hanes’s letter on June 17, 2014, and met with Hanes and Larson 

on July 3, 2014. Thereafter, Hanes and Larson authored a joint letter to the 

SJCT on August 11, 2014, recommending that Penn State terminate 

____________________________________________

Friday, March 21, 2014.] See Appellant’s Brief in Opposition to [Penn State’s] 

Motion for Summary Judgment, 12/4/19, at Exhibit “C”.

6 AD-85 states that “concerns about conduct by an employee [] that may 

violate this policy” should be reported to Lehrman. See Appellant’s Amended 

Complaint, 10/4/16, at Exhibit “B”.
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Appellant’s employment.7 On August 28, 2014, the SJCT notified Appellant 

that it was conducting a preliminary evaluation of the sexual harassment 

allegations and possible termination of Appellant’s employment. The letter 

also notified Appellant that a hearing on the matter was set for September 16, 

2014, and October 1, 2014. On September 9, 2014, the SJCT notified 

Appellant that after conducting a preliminary evaluation, it determined there 

was cause for termination if the allegations were substantiated. After 

conducting a hearing on the matter, at which Appellant was present, 

represented by counsel, and able to offer witness testimony and other 

evidence in his defense, the SJCT set forth its findings of fact and conclusions 

in a letter to Barron, Penn State’s President, recommending the termination 

of Appellant’s employment. On November 20, 2014, Barron notified Appellant 

that his employment with Penn State was terminated effective immediately.

Based upon a review of the record, we concur with the trial court that 

no genuine issue of material fact existed as to whether Penn State acted in 

good faith and followed the policies and procedures as set forth in HR-70 when 

it terminated Appellant’s employment. It is axiomatic that prior to initiating 

any formal proceedings or charges against Appellant, Penn State needed to 

perform due diligence in determining the veracity of the sexual harassment 

allegations. To do otherwise, and accept the allegations of sexual harassment 

____________________________________________

7 Nicholas P. Jones, Penn State’s Executive Vice President and Provost, 

concurred in the recommendation set forth in the joint letter to the SJCT.
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on their face and immediately begin formal termination proceedings without 

first performing an investigation into the veracity of the allegations, could 

irrevocably damage a person’s reputation, both professionally and personally,

if the allegations were proven false, and could lead to the potential for false 

accusations being brought by a student as a retaliatory action for 

dissatisfaction with a faculty member.

Appellant argues that the notice of the alleged misconduct constituting 

adequate cause of dismissal of a tenured faculty member “shall include a copy 

of or reference to [the] HR-70 policy and sufficient information concerning 

the allegations to enable the faculty member to make a meaningful 

response.” Appellant’s Brief at 16 (original emphasis omitted, emphasis 

added). In so arguing, Appellant implies that Penn State is required to 

formulate a substantiated, independent basis, i.e. “sufficient information 

concerning the allegations,” upon which to articulate its position. Because 

Penn State must have “sufficient information concerning the allegations” in 

order to articulate its position on the alleged misconduct constituting adequate 

cause for dismissal, Appellant and the HR-70 policy tacitly recognize that 

investigation prior to notice is essential. Initiating formal termination 

proceedings without first conducting an investigation is analogous to charging 

a defendant with a crime before the police investigate and obtain evidence of 

culpability.

Here, prior to beginning formal termination proceedings pursuant to 

HR-70, Lehrman, who was charged with investigating allegations of sexual 
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harassment, performed an investigation into the sexual harassment 

allegations brought against Appellant by, inter alia, meeting with Appellant 

and speaking with other individuals. Subsequent to the conclusion of 

Lehrman’s investigation, Hanes, Dean of University College, provided 

Appellant with written notice of the sexual harassment allegations and 

provided Appellant with a copy of HR-70, pursuant to Step A(1) of the 

“Initiation of Dismissal Process” section of HR-70. We concur with the trial 

court that there is no genuine issue of material fact “that the event that 

triggered the applicability of HR-70's notice and subsequent procedures was 

the post-investigation decision encompassed in the May 22, 2014 letter from 

[] Hanes to [Appellant] entitled ‘Notice of Initiation of Process for Dismissal 

from University Employment.’"

The essence of Appellant’s argument is not that Penn State 

unreasonably delayed notice of the alleged misconduct that gave rise to the 

adequate cause to initiate termination proceedings but, rather, that the notice 

should have preceded the March 21, 2014 meeting between Lehrman and 

Appellant. Appellant’s Brief at 12-17 For the reasons discussed supra, HR-70 

required Penn State to investigate the veracity and circumstances of the 

sexual harassment allegations, first, in order to gain “sufficient information 

concerning the allegations” and then to apprise Appellant, in a HR-70 notice, 

of Penn State’s position and to provide Appellant an opportunity to respond. 

Compliance with HR-70 is achieved so long as notice is sent within a 

reasonable time after an appropriate administrator learns of the “adequate 
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cause” event. See HR-70 at § A(1). HR-70 does not require that notice be 

sent to the faculty member before a first or subsequent investigative 

interaction, such as the meeting between Lehrman and Appellant.

Here, Lehrman met with Appellant as part of the investigative process 

on March 21, 2014. Lehrman composed a report based upon his investigation 

recommending that termination proceedings be initiated against Appellant and 

sent that report to Hanes on May 12, 2014. Hanes subsequently provided 

Appellant with notification pursuant to HR-70 on May 22, 2014. Ten days 

elapsed between Lehrman’s report substantiating the occurrence of events 

that might give rise to termination for adequate cause and Hanes’s HR-70 

notice, a time period which certainly complies with the requirement that HR-70 

notice be provided “within a reasonable time after the occurrence of events 

that might give rise to termination for adequate cause are made known to 

the appropriate administrator[.]”

We further concur with the trial court that no genuine issue of material 

fact exists as to whether Penn State acted in good faith in performing its 

contractual obligations pursuant to HR-70. Appellant contends that Penn 

State acted in bad faith because (1) Hanes and Larson failed to question him 

about the conflicts between the sexual harassment allegations, as stated in 

Lehrman’s report to the Chancellor, and his version of events, as set forth in

his response letter, (2) the SJCT chairperson was inadequately trained and 

had a conflict of interest, both of which, Appellant asserts, prevented the 

faculty member from serving as the chair, and (3) a draft of Appellant’s 
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termination letter was prepared the day after the SJCT sent its 

recommendation to Penn State’s president. With regard to Appellant’s first 

contention, HR-70 states that “[t]he administrator, at his or her discretion, 

may respond to the written submissions of the faculty member at the meeting” 

and the purpose of the meeting was “to provide both parties with an 

understanding of the other party’s position[.]” See HR-70 at §§ A(3) and B

(emphasis added). There is no requirement that the administrators, in this 

case Hanes and Larson, were required to discuss the merits of the allegations 

or Appellant’s response. The purpose of the meeting was to make Appellant 

aware of Penn State’s position on the matter. 

Regarding the qualifications for the chairperson of the SJCT, HR-70 

states that the SJCT “shall consist of five members: two members selected by 

the administration, and three tenured faculty members selected by the elected 

faculty members of [Penn State’s] Senate. The Chair will be chosen by [the 

SJCT’s members] from the elected tenured faculty members.” See HR-70 at 

“Establishment of the Committee.” HR-70 does not set forth any qualifications 

necessary for a tenured faculty member to be elected as chair of the SJCT

other than the requirement that the person must be one of the three tenured 

faculty members elected by Penn State’s Senate to the SJCT and cannot be 

one of the two members selected by the administration.8 Id.

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8 We, furthermore, find no record support for Appellant’s bald assertion that 

the chair was unqualified to serve in this position because one of the witnesses 
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Finally, Appellant’s allegation that a termination letter was drafted for 

review by Penn State’s president within one day of receiving the SJCT’s 

recommendation to terminate Appellant’s employment does not give rise to a 

genuine issue of material fact as to whether Penn State acted in good faith. 

Given the seriousness of sexual harassment allegations and the need to 

remove harassers where adequate cause for termination has been found, the 

speed in which Penn State acted on this matter by drafting a termination letter 

for the president’s review does not amount to an act of bad faith. Rather, 

given the urgency with which such matters are to be resolved, as 

demonstrated by the time restrictions set forth in HR-70, Penn State’s quick 

action in drafting the termination letter amounts to a good faith effort to bring 

resolution to the matter.

In viewing the evidence in the light most favorable to Appellant, as the 

non-moving party, the evidence demonstrates that Penn State properly 

initiated the dismissal proceedings via Hanes’s May 22, 2014 letter, and that 

Penn State, in good faith, followed the policies and procedures outlined in 

HR-70. Therefore, Appellant failed to demonstrate the existence of a genuine 

issue of material fact.

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was the chairperson’s “boss’s boss.” The SJCT is comprised of five members 

who are tasked with making a joint recommendation to Penn State’s 

president, who is ultimately the final decision-marker, regarding the potential 

termination of the faculty member’s employment. Here, the SJCT’s 

recommendation to terminate Appellant’s employment was unanimous.
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Based upon a review of the record, we discern no error of law or abuse 

of discretion in the trial court’s order granting summary judgment in favor of 

Penn State.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2020