                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-9-1996

Ersek v. Twp of Springfield
Precedential or Non-Precedential:

Docket 95-1913




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Recommended Citation
"Ersek v. Twp of Springfield" (1996). 1996 Decisions. Paper 10.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/10


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                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                              ___________

                              NO. 95-1913
                              ___________

ELLEN ERSEK,
                                                   Appellant

                                  v.

            TOWNSHIP OF SPRINGFIELD, DELAWARE COUNTY;
      ANTHONY J. GROSSO; LEE J. JANICZEK; THOMAS V. MAHONEY;
      JOHN J. MCFADDEN; KITTY JURCIUKONIS; BERNARD E. STEIN;
        JAMES DEVENNEY, Individually and in their Official
          Capacities as Commissioners of the Township of
        Springfield; GEORGE A. PAGANO, Individually and in
       his Capacity as Former Commissioner of the Township
       of Springfield; JO ANN HUNN, Individually and in her
        Capacity as Former Commissioner of the Township of
          Springfield; MICHAEL T. LEFEVRE, Individually
          and in his Capacity as Township Manager of the
       Township of Springfield; JOSEPH STUMPF, Individually
      and in his Capacity as Chief of Police of the Township
      of Springfield; JOHN W. RYAN, Individually and in his
         Capacity as Police Detective of the Township of
 Springfield; JAMES F. DEVANEY, Individually and in his Capacity
         as Police Officer of the Township of Springfield

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

         On Appeal From the United States District Court
             For the Eastern District of Pennsylvania
                       D.C. No. 92-cv-04673
            __________________________________________

                        Argued:   June 3, 1996

         Before: BECKER and MANSMANN, Circuit Judges, and
BROTMAN, District Judge.

                        (Filed December 9, 1996)
                              ___________


HAROLD I. GOODMAN, ESQUIRE (ARGUED)
Raynes, McCarty, Binder,
 Ross & Mundy
1845 Walnut Street
Suite 2000
Philadelphia, PA   19103
Counsel for Appellant

DANIEL J. DIVIS, ESQUIRE (ARGUED)
Dean F. Murtagh, Esquire
German, Gallagher & Murtagh
200 South Broad Street
5th Floor
Philadelphia, PA   19102

Counsel for Appellees

                           ___________

                        OPINION OF THE COURT
                            ___________


BECKER, Circuit Judge.
         William Ersek, a golf professional who suffered
employment reverses incident to adverse newspaper reports about
an investigation of his stewardship at a Township-owned golf
course, brought a federal civil rights action, 42 U.S.C. § 1983,
against the Township and a number of its top officials on account
of false statements made by one of the officials about the
matter. Ersek's appeal from the grant of summary judgment in
favor of the defendants raises a number of interesting questions
under § 1983. However, his claim founders because there is
insufficient evidence to show that the false statements
themselves caused him harm. Accordingly, we will affirm the
grant of summary judgment for defendants.

                                I.
         From 1963 until the end of 1991, Ersek was employed as
the golf professional at a municipally owned and operated golf
course, the Springfield Country Club, in Delaware County,
Pennsylvania. From 1963 until 1987, Springfield Township
employed Ersek pursuant to successive one-year employment
contracts. In 1987, Ersek signed a four-year contract. Ersek's
duties as the Springfield golf pro were varied: he managed the
pro shop and snack bar at the course, supervised the other
employees at the course, and collected the fees for playing the
course and renting the golf carts.
         During the summer of 1989, a Township employee,
responding to complaints by Ersek that construction on the golf
course had resulted in a lower volume of paying golfers, counted
the golfers on the course. The Township employee noticed that
the number of golfers actually on the course did not correspond
to the number of golfers Ersek reported to the Township. Michael
Lefevre, the Township Manager and a defendant in the case,
noticed the same discrepancies. The matter was referred to the
Township police. After some investigation in the fall of 1989,
the police decided to conduct surveillance during the spring and
summer of 1990. The police inspection uncovered further
discrepancies.
         In August 1990, the police and Township employees
notified the Township Board of Commissioners ("the Board"), a
defendant in the case, of the results of their probe. Until that
time, no member of the Board knew of the investigation. Bernard
Stein, the President of the Board and also a defendant, informed
the police that the Board would be willing to prosecute Ersek
criminally if there were sufficient evidence to do so. After
obtaining a search warrant, the police carried out a search of
the pro shop and seized records stored therein. Ersek
volunteered to the police that he kept additional records at his
home. The police obtained a second search warrant and then made
a search of Ersek's home, seizing documents stored there as well.
         The Board discussed the Ersek case at a public meeting
six days after the police searches. Stein read a public
statement, earlier approved by the entire Board in executive
session, concerning the case. Lefevre had also attended the
executive session. The statement falsely claimed that the Board
had not only been aware of the investigation since its outset but
also had directed the entire undertaking. The admitted reason
for the fabrication was to mislead the Township residents into
believing that the Board had been pro-active in overseeing the
golf course. The statement did not, however, refer to Ersek nor
contain other false claims. After the Township meeting, local
newspapers, and also The Philadelphia Inquirer, reported on the
investigations and ran stories referring to Ersek by name.
         Ersek had been suffering from health problems and, in
the wake of the searches, did not return to work for several
months. Although the Township continued to pay him for the time
he spent away from the course, it moved to restructure the
management of the course. For instance, the Township took
control of the pro shop and responsibility for course employees.
         Nearing the contract's expiration in 1991, the Township
offered to renew Ersek's contract, but under substantially
altered terms. The salary under the proposed contract would have
been significantly less than that of the existing contract.
Ersek refused to accept the terms of the proposed contract, and
the Township hired a different golf professional. Ersek then
sought job interviews with other country clubs in the area, but
to no avail. Ersek claims that the cloud placed over his head by
the publicized investigation made securing employment at another
golf course impossible.
         Ersek brought suit against the Township and against a
number of Township officials alleging a variety of federal civil
rights and pendent state law claims. In an initial order, the
district court granted the defendants' motion to dismiss Ersek's
substantive due process claims, and ordered Ersek to file an
amended complaint to address deficiencies with respect to some of
the other claims. See Ersek v. Township of Springfield, Delaware
County, 822 F. Supp. 218 (E.D. Pa. 1993). In so doing, the court
held that the Township did not act arbitrarily or capriciously in
offering Ersek a renewed contract under markedly different terms;
considering Ersek's ill health and age (Ersek was 59 years old at
the time), the court found it not unreasonable for the Township
to act as it did. Ersek subsequently dismissed a number of
defendants and abandoned a number of claims voluntarily.
         In a later order, the district court granted the
remaining defendants' motion for summary judgment as to all
existing federal law claims. Relying primarily on Paul v. Davis,
424 U.S. 693 (1976) and Clark v. Township of Falls, 890 F.2d 611
(3d Cir. 1989), the court held that Ersek could not make out a
claim for a violation of procedural due process because he could
not show that the Township's actions infringed on a
constitutionally protected interest. Specifically, the district
court held that the fabrications contained in the Township's
public statement did not harm Ersek to the extent that they
violated a liberty interest in his reputation. And, even if
those fabrications had harmed him, the court continued, Ersek
failed to adduce evidence that he suffered more than mere
financial harm so as to rise to liberty interest. The district
court also dismissed the pendent state law claims with leave to
file them in state court.
         Ersek appeals from the district court's final order
granting summary judgment, and includes in his appeal the court's
order dismissing his substantive due process claims. The case
raises both federal questions and pendent state law claims, and
the district court properly exercised its jurisdiction pursuant
to 28 U.S.C. §§ 1331 and 1367; we exercise appellate jurisdiction
over this appeal of a final district court order pursuant to 28
U.S.C. § 1291. Our review is plenary as to the appeal both from
the order granting summary judgment and that granting the motion
to dismiss.
                               II.
         We must perforce begin by considering whether Ersek had
a protectible liberty interest sufficient to trigger due process
protections. The Supreme Court, in the seminal case of
Wisconsin v. Constantineau, 400 U.S. 433 (1971), recognized that
an individual has a protectible interest in reputation. It
stated that "[w]here a person's good name, reputation, honor, or
integrity is at stake because of what the government is doing to
him, notice and an opportunity to be heard are essential." Id.at 437.
The Court then went on to strike down a state statute
that failed to provide an individual with the opportunity to
challenge a government official's posting notice that no one may
provide alcoholic beverages to that individual because of his
problems with alcohol. Id. at 439. The inquiry is, however,
more complicated today in light of intervening case law.
         For government action to infringe the "reputation,
honor, or integrity" of an individual, that government action
first must involve a publication that is substantially and
materially false. See Codd v. Velger, 429 U.S. 624, 627 - 29
(1977); Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d
74, 82 (3d Cir. 1989). The principal relief to which an
individual is entitled should the government's stigmatizing
comments rise to the level of a due process violation is a
hearing to clear his name. See Codd, 429 U.S. at 627; Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 573 & n.12
(1972). If there is no factual dispute that "has some
significant bearing on the employee's reputation," then a name-
clearing hearing would serve no useful purpose. See Codd, 429
U.S. at 627. In other words, the disputed or false statements
must harm the plaintiff.
         In this case, Ersek claimed that false statements
impaired his opportunities for future employment as a golf pro.
Ersek has adduced ample evidence to create a genuine issue of
material fact as to whether the publicity about the fact of an
investigation did such harm. See McKnight v. Southeastern
Pennsylvania Trans. Auth., 583 F.2d 1229, 1236 (3d Cir. 1978)
(holding that harm to future employment possibilities may show
sufficient stigma to allow a claim for a violation of a liberty
interest). That the publicity may have harmed Ersek is not,
however, the end of this inquiry, because the harm must be caused
by the falsity of the statements and the fact of the
investigation is true. Thus, we must now determine whether the
false statements made by the Township affected Ersek's
reputation.
         It is undisputed that the public statement announcing
the investigation at the Township golf course contained the false
statement that the Board had known about and directed the
investigation from its outset. Ersek contends that a public
statement including such a fabricated claim could give rise to
the false impression that the probe was a serious, non-routine
matter. It is not usual for a legislative body to be engaged in
the investigation of possible criminal activities. In Ersek's
submission, anyone learning of the Board's (false) involvement
could conclude that Ersek's alleged misdeeds were of an unusual
nature calling for extraordinary measures, and such a conclusion
would have a significant bearing on Ersek's reputation because
more serious allegations would likely engender more serious harm
to an individual's reputation. Had the statement only mentioned
the police involvement and omitted the Board's putative activity,
the argument continues, there would be no cause to overstate the
seriousness of the allegations.
         We are unconvinced. As we have stated, Ersek must show
that the false comments made by the Township caused him some
harm. The problem with Ersek's argument is that the only false
statements were that the Board had been heavily involved in the
investigation at the golf course. Notwithstanding Ersek's
protestations, we cannot imagine that such fabrications caused
more harm than would a statement that truthfully said that only
the police and a few Township officials were investigating him.
Should Ersek receive the hearing to which he claims he is
entitled, the most for which he can seemingly ask in the hearing
is the opportunity to show that the investigation was not
conducted by the Board and that any inference that the
investigation was unusual is incorrect. That hearing could not
be used to prove Ersek's innocence. He would still have hanging
over his head the cloud of a police investigation. It seems
fanciful that any golf course that refused to hire Ersek because
of the statement actually given would now consider hiring him
because only the police (and not the Board) were investigating
him.
         In sum, the false statements in this case simply have
not caused Ersek harm that a name-clearing hearing could correct.
It was the fact of the investigation, not who conducted the
investigation, that might have injured Ersek's reputation.
Because Ersek cannot dispute the fact of the investigation, a
name-clearing hearing would be of no consequence to him. AccordHomar v.
Gilbert, 89 F.3d 1009, 1021 - 22 (3d Cir. 1996) (denying
a procedural due process claim, in part based on the reasoning
that the truthful disclosure of a pending investigation did not
stigmatize the plaintiff); S & D Maintenance Co. v. Goldin, 844
F.2d 962, 970 - 71 (2d Cir. 1988) (same).
                               III.
         Because we conclude that no genuine issue of material
fact exists as to Ersek's claim that the false statements made by
the Township stigmatized him, the order of the district court
granting the defendants' motion for summary judgment will be
affirmed.
