           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Patrick Megraw,                             :
                      Appellant             :
                                            :
              v.                            : No. 577 C.D. 2017
                                            : ARGUED: March 6, 2018
School District of Cheltenham               :
Township                                    :


BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ELLEN CEISLER, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

MEMORANDUM OPINION
BY JUDGE CEISLER                                            FILED: May 1, 2018

       Appellant Patrick Megraw (Mr. Megraw) appeals from two orders issued on
April 13, 2017 by the Court of Common Pleas of Montgomery County (Trial Court)
in his action against his former employer, Appellee School District of Cheltenham
Township (School District). In this suit, he requested injunctive relief and sought a
declaratory judicial determination that Section 111(f.1)(1) of the Public School Code
of 1949 (Code), 24 P.S. § 1-111(f.1)(1),1 which became effective in September 2011,

       1
              If a report of criminal history record information or a form submitted
              by an employe under subsection (j) indicates the person has been
              convicted of an offense graded as a felony offense of the first,
              second or third degree other than one of the offenses enumerated
              under subsection (e), the person shall be eligible for continued or
              prospective employment only if a period of ten years has elapsed
              from the date of expiration of the sentence for the offense.
Act of March 10, 1949, P.L. 30, as amended, added by Section 1 of the Act of June 30, 2011, P.L.
112.
and which mandates a 10-year employment ban for individuals convicted of certain
classes of felonies, was unconstitutional as applied to him. One order denied Mr.
Megraw’s Motion for Summary Judgment, as well as his Supplemental Motion for
Summary Judgment, while the second granted the School District’s “Supplemental
Motion for Summary Judgment.”2 We conclude that, as applied, this statute violates
Mr. Megraw’s substantive due process rights and therefore reverse the Trial Court.
       In March 1995, the School District hired Mr. Megraw as a groundskeeper and
eventually promoted him to the level of foreman. Megraw Dep., 5/2/16 at 5. Mr.
Megraw voluntarily resigned from the foreman position in 2010 and returned to his
former groundskeeper position, in connection with repeatedly being admonished by
his superiors for excessive absences from and lateness to work. Megraw Dep.,
2/10/17 at 10. Mr. Megraw claimed these issues stemmed from his responsibilities
as sole caretaker for his mother, who had been terminally ill with lung cancer and
died in September 2012, as well as his own health issues. Megraw Dep., 5/2/16 at
5; Megraw Dep., 2/10/17 at 9-10. However, Mr. Megraw’s overall problematic
disciplinary history with the School District dated back to at least March 2006 and
extended through August 2015. See David Dep., 2/10/17 at 7-21 (deposition
testimony from Lynn David, the School District’s Director of Human Resources).
During this time, Mr. Megraw was suspended twice and reprimanded on multiple
occasions, both verbally and in writing, due to overuse of leave time, tardiness, poor
performance, and sleeping at his work station. See Synopsis of Patrick Megraw
Documented Discipline and Unsatisfactory Work Documentation at 1-2. Yet,
despite these ongoing disciplinary problems, the School District did not fire Mr.


       2
        The School District gave its Motion this name, despite the fact that it constituted the
School District’s initial (and only) request for summary judgment. Tr. Ct. Op. at 5 n.6.


                                              2
Megraw and never considered this pattern of behavior serious enough to warrant
termination of his employment. See David Dep., 5/2/16 at 12.
       The School District’s handling of Mr. Megraw took a marked turn when, on
January 12, 2016, it fired Mr. Megraw after learning that he had been convicted of a
felony in June 2009, for violating former Section 6111(g)(4) of the Uniform
Firearms Act (UFA), 18 Pa. C.S. § 6111(g)(4),3 by knowingly and intentionally
providing false information while attempting to purchase a firearm. The genesis of
this conviction occurred in 2007, when Mr. Megraw’s then-wife filed for divorce.
Megraw Dep., 2/10/17 at 18. Mr. Megraw refused to leave their home and, as a
result, his soon-to-be-former spouse obtained a Protection from Abuse Order
(PFAO), which forced Mr. Megraw to leave the marital residence. Id. at 18-19.
Afterwards, the relationship between Mr. Megraw and his ex-wife improved, to the
point where they would occasionally have meals together, and he would visit her
home to see their children, attend occasional parties, and help with maintenance
issues. Id. at 15-16. At some point during this time period, Mr. Megraw’s former
spouse allegedly advised him that the PFAO had been dissolved. Megraw Dep.,
5/2/16 at 15.
       In May 2008, Mr. Megraw went to a Dick’s Sporting Goods store in Plymouth
Meeting, Pennsylvania, to purchase a .22-caliber rifle. Id. at 14. Mr. Megraw filled


       3
        As of May 2008, this statute contained the following language:
               Any person, purchaser or transferee who in connection with the
               purchase, delivery or transfer of a firearm under this chapter
               knowingly and intentionally makes any materially false oral or
               written statement or willfully furnishes or exhibits any false
               identification intended or likely to deceive the seller, licensed dealer
               or licensed manufacturer commits a felony of the third degree.
Former Section 6111(g)(4) of the UFA, 18 Pa. C.S. § 6111(g)(4), amended by Section 6 of the Act
of October 17, 2008, P.L. 1628.


                                              3
out the required rifle purchase application form as part of the instant background
check process. On this form he stated that he was not subject to any currently
outstanding PFAOs. Id. The store clerk submitted the form and then told Mr.
Megraw he was not eligible to purchase the weapon. The clerk advised Mr. Megraw
that the explanation as to why his application was denied would be mailed to him at
a later date. Id. Thereafter, in December 2008, Mr. Megraw was arrested and
charged with one count of violating 18 Pa. C.S. § 49044 and one count of violating
18 Pa. C.S. § 6111(g)(4). Id. at 17-18. On June 25, 2009, Mr. Megraw pled guilty
to the latter, which is a third-degree felony offense. Id. at 17-18; Complaint at 2.5
Mr. Megraw was sentenced to four years’ probation, which he completed without
incident. Tr. Ct. Op. at 2.
       At the time of his conviction in 2009, there was no law that required Mr.
Megraw to report his conviction to the School District and, thus, he did not do so.
This changed in June 2011, when the General Assembly enacted Section 111(f.1)(1)
of the Code, to bar any individual who had been convicted of a first, second, or third-
degree felony, of a type not otherwise subjecting him to any other type of ban under
the Code, from continued employment by a school in this Commonwealth, unless at
least 10 years had elapsed from the end of the individual’s sentence.6



       4
        Section 4904 of the Crimes Code classifies certain categories of unsworn false statements
as second- or third-degree misdemeanors. 18 Pa. C.S. § 4904.

       5
       The Commonwealth dropped the charge relating to unsworn falsifications as part of Mr.
Megraw’s plea agreement. See Megraw Dep., 5/2/16 at 19.

       6
          Section 111 of the Code also mandates bans of varying lengths for certain, enumerated
types of felony and misdemeanor convictions, as well as in response to convictions for which the
crime has been graded as a first-degree misdemeanor. See 24 P.S § 1-111(e)(1), (f.1)(2)-(3).



                                               4
       Subsequently, the General Assembly again amended the Code, mandating that
all current school employees submit their state and federal criminal history records
to their employers no later than December 31, 2015, so that the relevant school
administrator could review each submission and determine whether additional action
should be taken. See 24 P.S. § 1-111(c.3), added by Act of February 16, 2016, P.L.
6. Mr. Megraw provided the School District with the required information by this
deadline. Shortly thereafter, on January 12, 2016, the School District terminated Mr.
Megraw due to his June 2009 felony conviction. David Dep., 5/2/16 at 7-12.
       In February 2016, Mr. Megraw filed suit against the School District,
requesting a declaratory finding that 24 P.S. § 1-111(f.1)(1) violated his substantive
due process rights under Article I, Section 1 of the Pennsylvania Constitution, as
applied to him.7 Thereafter, Mr. Megraw filed his Motion for Summary Judgment,
which the Trial Court denied on November 7, 2016. The next day, November 8,
2016, the Trial Court vacated this ruling and issued a new order, which required the
parties to take discovery and/or enter into a stipulation of facts regarding the
following outstanding relevant factual issues discussed in Johnson v. Allegheny
Intermediate Unit, 59 A.3d 10, 24-25 (Pa. Cmwlth. 2012):

               1. Whether [Mr. Megraw’s] underlying criminal offense
                  affected his ability to perform his job duties as a
                  groundskeeper;


       7
         Mr. Megraw also sought a permanent injunction to prohibit the School District from firing
him “solely based upon the [felony] conviction.” Complaint at 2, 5-7. As the Trial Court noted,
though Mr. Megraw initially sought injunctive relief, he had already been fired by the time he filed
suit, and never subsequently offered any additional argument in support of his request for a
permanent injunction. Therefore, he effectively abandoned that portion of his suit against the
School District and focused solely on obtaining a declaratory judgment in his favor. See Tr. Ct.
Op. at 4 n.4.



                                                 5
             2. How the 2009 conviction reflects upon [Mr. Megraw’s]
                present abilities to perform his duties with the [S]chool
                [D]istrict;
             3. [Mr. Megraw’s] job performance from 1995 to the
                present;
             4. The reason why [Mr. Megraw’s] criminal conviction in
                2009 is predictive of future behavior and continues to
                warrant the harsh result of the ten[-]year ban of
                employment with the [S]chool [D]istrict;
             5. The rational reason that applying a ten[-]year ban of
                employment serves a legitimate governmental purpose
                to be protected.
Tr. Ct. Order, 11/8/16 at 1.
      On March 10, 2017, both parties filed Supplemental Motions for Summary
Judgment. On March 27, 2017, the Trial Court held oral argument regarding these
motions. On April 13, 2017, the Trial Court issued two orders, one granting the
School District’s Supplemental Motion, and the other denying both Mr. Megraw’s
initial Motion for Summary Judgment, as well as his Supplemental Motion,
prompting this appeal to our Court.
                                Standard of Review
      When ruling upon a motion for summary judgment, the trial court must
resolve all doubts against the movant, examining the case record in the light most
favorable to the non-moving party, and “may grant summary judgment only where
the right to such a judgment is clear and free from doubt.” Fine v. Checcio, 870
A.2d 850, 857 (Pa. 2005). Our standard of review on appeal regarding a trial court’s
granting of such a motion is limited to determining whether that decision constituted
an abuse of discretion or an error of law. Salerno v. LaBarr, 632 A.2d 1002, 1003
(Pa. Cmwlth. 1993).




                                          6
                                              Issues
       On appeal, Mr. Megraw makes the following claims, which we have
paraphrased and condensed for clarity. First, 24 P.S § 1-111(f.1)(1)’s employment
ban and its irrebuttable presumption regarding felony convictions violate Mr.
Megraw’s substantive due process rights, and are thus facially unconstitutional.
Megraw’s Br. at 14-30. Second, the ban and irrebuttable presumption are also
unconstitutional as-applied, on substantive due process grounds, because his
criminal behavior occurred nearly eight years before his termination and the School
District did not establish that Mr. Megraw’s decision to provide false information in
2008 has, or will have, any effect upon his ability to carry out his groundskeeping
duties or rendered him a threat to school safety. Id. at 30-38. Third, the Trial Court
abused its discretion by factoring Mr. Megraw’s employment history and evidence
regarding the employment-ban-related guidance documents issued by the
Commonwealth’s Department of Education into its rulings upon the parties’ various
motions, when his 2009 felony conviction was the exclusive reason for the School
District’s decision to terminate him. Id. at 38-45. Finally, the Trial Court abused its
discretion by determining that Mr. Megraw’s repeated assertions that he had
believed his ex-wife had dropped the PFAO constituted dishonesty, and that his
termination was warranted as a result of this dishonesty.8 Id. at 45-46.

       8
          The Pennsylvania State Education Association (“PSEA”) also submitted an amicus curiae
brief in support of Mr. Megraw. Therein, PSEA makes essentially the same arguments as Mr.
Megraw did in his brief, except that PSEA also opines that Section 111(f.1)(1) is unconstitutional
as applied to Mr. Megraw, due to its retroactive application in his situation (i.e., Mr. Megraw pled
guilty to knowingly and intentionally providing false information on his rifle purchase application
at a point in time when the law did not mandate his firing consequent to the conviction). Since
Mr. Megraw did not raise this issue himself, we cannot consider it for purposes of this appeal. See
Banfield v. Cortes, 110 A.3d 155, 172 n.14 (Pa. 2015) (“[A]micus briefs cannot raise issues not set
forth by the parties.”).



                                                 7
                                       Discussion


 A.     Mr. Megraw Has Waived His Challenge to the Facial Constitutionality
                     of Section 111(f.1)(1) of the Code
       Preliminarily, we must note that Mr. Megraw has waived his argument that
Section 111(f.1)(1) is facially unconstitutional for a number of reasons. First, Mr.
Megraw failed to raise or preserve this issue at the trial level, and explicitly stated
that he was making an as-applied challenge. See Complaint at 2, 5-7; Megraw
Motion for Summary Judgment at 1-2, 8; Megraw Supplemental Motion for
Summary Judgment at 6; Concise Statement of Errors Complained of in The Appeal
Of The Orders Of Court Dated April 13, 2017 at 1-3; Pa. R.A.P. 302(a); Pa. R.A.P.
1925(b)(4)(vii). Additionally, Mr. Megraw failed to notify the Commonwealth’s
Attorney General of his intent to mount a facial attack upon Section 111(f.1)(1), and
in fact expressly disclaimed such a desire via a February 25, 2016 letter to then-
Attorney General Kathleen Kane.           School District’s Br., App.; see Kepple v.
Fairman Drilling Co., 615 A.2d 1298, 1303 (Pa. 1992) (citing Pa. R.C.P. No. 235
and Pa. R.A.P. 521) (party waives ability to mount facial challenge to
constitutionality of statute if it fails to notify Attorney General of its intent to do so).
Finally, Mr. Megraw’s attorney informed our Court during the course of oral
argument that the facial challenge had been waived.
       Given that Mr. Megraw’s remaining issues pertain to his as-applied
constitutional challenge, his arguments about the irrebuttable presumption contained
in Section 111(f.1)(1) are no longer relevant. Pennsylvania law is clear that we need
only analyze the constitutionality of such irrebuttable presumptions in cases where
the facial constitutionality of a law has been properly challenged. Compare Johnson,
59 A.3d at 15-16, 20-25 (as-applied constitutional challenge, with no discussion of


                                             8
irrebuttable presumption test), with Peake v. Commonwealth, 132 A.3d 506, 516-22
(Pa. Cmwlth. 2015) (facial constitutionality challenge, with discussion and
application of irrebuttable presumption test).                 Therefore, we need not address
whether this irrebuttable presumption comports with the due process requirements
of the Pennsylvania Constitution.
B.     Section 111(f.1)(1) of the Code, As Applied to Mr. Megraw, Violated His
                         Substantive Due Process Rights
       Mr. Megraw bases his claim that Section 111(f.1)(1)’s 10-year employment
ban, as applied to him, violated his substantive due process rights upon Article I,
Section 1 of the Pennsylvania Constitution.9
       Pennsylvania jurisprudence has consistently interpreted the language of this
section as “guarantee[ing] an individual’s right to engage in any of the common
occupations of life.” Johnson, 59 A.3d at 21 (citations omitted). However, this right
is not “fundamental” in nature, and any law that allegedly impinges upon it is thus
subject to a rational basis test.10 Nixon v. Commonwealth, 839 A.2d 277, 287-88 &
n.15 (Pa. 2003).11

       9
         Article I, Section 1 of the Pennsylvania Constitution states that “[a]ll men are born equally
free and independent, and have certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness.” Pa. Const. art. I, § 1.

       10
            The parties do not dispute that the rational basis test applies.

       11
                 Although the due process guarantees provided by the Pennsylvania
                 Constitution are substantially coextensive with those provided by
                 the Fourteenth Amendment, a more restrictive rational basis test is
                 applied under the Pennsylvania Constitution. See [Pa. State Bd. of
                 Pharmacy v. Pastor, 272 A.2d 487, 490–91 (Pa. 1971)] (explaining
                 that Pennsylvania courts have analyzed due process challenges
                 under rational basis tests “more closely” than the United States
                 Supreme Court). Needless to say, under the rational basis test



                                                    9
       For a law to be deemed constitutional under the rational basis test, it “must
not be unreasonable, unduly oppressive or patently beyond the necessities of the
case, and the means which it employs must have a real and substantial relation to the
objects sought to be attained.” Gambone v. Commonwealth, 101 A.2d 634, 637 (Pa.
1954). While a state may regulate a business which affects the public health, safety
and welfare, it may not, through regulation, deprive an individual of his right to
conduct a lawful business unless it can be shown that such deprivation is reasonably
related to the state interest sought to be protected.” Sec’y of Revenue v. John’s
Vending Corp., 309 A.2d 358, 361 (Pa. 1973).
       Here, the challenged statute, Section 111(f.1)(1), applies to all school
employees who have any form of direct contact with children, and establishes a 10-
year ban for those who have been convicted of a first, second, or third-degree
felony.12 This statute is unambiguous and does not permit any discretion on the part
of the employer to consider additional information, such as the affected employee’s
employment history, professional reputation, or the details of his personal life. This
law does not require that any nexus exist between the nature of criminal behavior
and the job responsibilities. If an employee’s conviction fits within the statute’s
parameters, a school is required to terminate that employee.
       Although Johnson dealt with a separate section of the Code, interestingly,
both parties primarily rely on our Court’s holding in Johnson to support their


               applied under our Constitution, deference is still given to the
               General Assembly in that laws are presumed constitutional and the
               General Assembly therefore does not need to present evidence to
               sustain their constitutionality. See O’Donnell v. Casey [405 A.2d
               1006, 1009-10 (Pa. Cmwlth. 1979)].
       Nixon, 839 A.2d at 288 n.15.
       12
          Mr. Megraw never argued that, as part of his job with the School District, he had no such
contact with children.


                                               10
respective positions. See Megraw’s Br. at 31-33; School District’s Br. at 17-24. In
Johnson, Johnson’s employer, Allegheny Intermediate Unit (AIU), terminated him
due to a nearly 30-year-old conviction for felony voluntary manslaughter, which
subjected him to a lifetime employment ban under Section 111(e)(1) of the Code.
Johnson, 59 A.3d at 13-15. Johnson filed suit against AIU, seeking declaratory and
injunctive relief. Id. at 15. The trial court issued a permanent injunction, reasoning
that the amended law was ex post facto in nature and, thus, unconstitutional as
applied to Johnson. Id. at 16. On appeal by the Commonwealth’s Department of
Education, we affirmed on different grounds, finding that, while this was not an ex
post facto law, it did violate Johnson’s substantive due process rights as applied,
since:
                AIU . . . [had] failed to present any rational reason that
                applying the lifetime ban to Johnson served a legitimate
                governmental purpose . . . [and because the statute]
                create[d] a lifetime ban for a homicide offense that ha[d]
                no temporal proximity to Johnson’s present ability to
                perform the duties of his position, and it [did] not bear a
                real and substantial relationship to the Commonwealth’s
                interest in protecting children[.]
Id. at 17-25.
         Johnson is part of a larger corpus of case law, dating back to 1973, in which
our appellate courts have validated both facial and as-applied substantive due
process challenges to statutory employment bans and other similar laws predicated
upon prior convictions.
         In John’s Vending, the Cigarette Tax Board learned that a shareholder and
former president of John’s Vending had been convicted in the 1950s of a crime of
moral turpitude. 309 A.2d at 360. Consequently, the Board revoked a wholesale
cigarette dealer license held by John’s Vending, based upon violations of Section



                                            11
403 of the Cigarette Tax Act,13 which established a bar to holding a license where an
individual or corporate officer had been convicted of such a crime, and required any
applicant for such a license to disclose any convictions to the Board as part of the
application process. Id. at 360-61. This ban was not explicitly lifelong, but the
statutory language effectively made it such, since the ban was conditioned upon a
conviction and was not expressly limited in duration. Id. at 360-62.
       We affirmed the Board, but our Supreme Court reversed us and vacated the
Board’s decision, finding that there was no reasonable relationship between the ban
and the governmental interest sought to be protected. Specifically, the Supreme
Court held:
              [t]o interpret Section 403(2) [of the Cigarette Tax Act] as
              a blanket prohibition barring anyone who has been
              convicted of a crime of moral turpitude without regard to
              the remoteness of those convictions or the individual’s
              subsequent performance would be unreasonable. We
              cannot assume that the legislature intended such an absurd
              and harsh result.
Id. at 362.
       In Nixon, several affected employees and a nonprofit corporation challenged
the constitutionality of a statutory employment ban contained in the Older Adults
Protective Services Act (OAPSA).14 839 A.2d at 279-83. This law, covering
employment in the field of elder care, required new applicants and those employees
who had been on the job for less than a year to submit criminal background check
information, mandating that anyone whose information showed he had been
convicted of an enumerated crime be barred for life from working in that field. Id.
at 280-82. Our Supreme Court ultimately held that there was no “real and substantial

       13
          Act of July 22, 1970, P.L. 513, formerly 72 P.S. § 3169.403, repealed by Section 5 of
the Act of December 21, 1981, P.L. 482, 72 P.S. § 8297.
       14
          Act of November 6, 1987, P.L. 381, as amended, 35 P.S. §§ 10225.101-10225.5102.


                                              12
relationship” between the carve-out for employees with more than a year’s tenure
and “the Commonwealth’s interest in protecting the elderly, disabled, and infirm
from victimization[.]” Id. at 289-90. Therefore, this ban impermissibly infringed
upon the employees’ substantive due process rights and was unconstitutional as
applied to them. Id. at 289.
       In Warren County Human Services v. State Civil Service Commission
(Roberts), 844 A.2d 70 (Pa. Cmwlth. 2004), Roberts was hired by Warren County
to be a caseworker, but was terminated shortly thereafter, pursuant to a lifetime
employment ban mandated by the Child Protective Services Law (CPSL), 23 Pa.
C.S. §§ 6301-6386, when his employer learned he had been convicted in 1980 of
aggravated assault. Warren, 844 A.2d at 71-72. He appealed this decision to the
State Civil Service Commission, which found in his favor and
             declined to apply the life-time criminal history ban in
             Section 6344(c) of the CPSL because it found that it
             violated Article I, Section 1 of the Pennsylvania
             Constitution by providing “a per se life-time prohibition to
             employment without considering the individual's present
             or past ability . . . to perform the duties of the position.”
             . . . Because Warren County’s removal of Roberts was
             based solely on the CPSL, the Commission reversed
             Warren County’s decision to terminate Roberts for failing
             to present evidence establishing just cause for Roberts’
             removal.
Id. at 72.
       Warren County appealed this decision, and we affirmed the Commission for
two reasons: First, “the CPSL fails to satisfy the rational basis test. Section 6344(c)
prohibits the hiring of applicants previously convicted of certain enumerated crimes;
however, it does not ban existing employees from continuing to work in the child-
care field, despite having a similar conviction.” Id. at 74. Second,



                                          13
              the CPSL’s lifetime ban of previously convicted
              applicants from employment in child-care is
              unconstitutional [because it] . . . ‘runs afoul of the deeply
              ingrained public policy of this State to avoid unwarranted
              stigmatization of and unreasonable restrictions upon
              former offenders.’ John’s Vending, . . . 309 A.2d at 362. .
              . . Because Section 6344(c), as it relates to aggravated
              assault, creates limitations that have no temporal
              proximity to the time of hiring, it does not bear a real and
              substantial relationship to the Commonwealth’s interest in
              protecting children[.]
Id.
       In two related cases, Croll v. Harrisburg School District, (Pa. Cmwlth., No.
210 M.D. 2012, filed December 13, 2012), 2012 WL 8668130, and Jones v. Penn
Delco School District, (Pa. Cmwlth., No. 294 M.D. 2012, filed December 13, 2012),
2012 WL 8668277,15 a bus driver, a school custodian, and a teacher challenged the
as-applied constitutionality of lifetime employment bans imposed upon them due to
previous convictions for decades-old convictions and the requirements of the Code.
Croll, slip op. at 1-8, 2012 WL 8668130 at *1-*2; Jones, slip op. at 1-7, 2012 WL
8668277 at *1-*2. The Commonwealth’s Department of Education intervened in
these matters, successfully petitioned to have them transferred to our Court, and then
filed preliminary objections to each lawsuit, which we overruled as to plaintiffs’
substantive due process claims. Croll, slip op. at 9-20, 2012 WL 8668130 at *2-*7;
Jones, slip op. at 8-19, 2012 WL 8668277 at *2-*7. In each case, we found that the
statutory lifetime employment ban “has no temporal proximity to [the plaintiffs’]
present ability to perform the duties of [their jobs], and . . . does not bear a real and
substantial relationship to the Commonwealth’s interest in protecting children,


       15
            See Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code §
69.414(a) (unreported Commonwealth Court opinions issued after January 15, 2008 may be cited
for their persuasive value).


                                            14
[meaning] it is unreasonable, unduly oppressive and patently beyond the necessities
of the offense.” Croll, slip op. at 20, 2012 WL 8668130 at *7; Jones, slip op. at 19,
2012 WL 8668277 at *7. On that basis, we held that, as applied, the Code’s lifetime
bans were “unconstitutional as violative of [plaintiffs’] substantive due process
rights as guaranteed by Article 1, Section 1 of the Pennsylvania Constitution.” Croll,
slip op. at 20, 2012 WL 8668130 at *7; Jones, 2012 WL 8668277 at *7, slip op. at
19.
      Finally, in Peake, five individuals and a non-profit social services agency
challenged the same OAPSA lifetime employment ban that had been addressed in
Nixon, arguing that the ban was both unconstitutional on a facial basis and as applied
to them. 132 A.3d at 509. We found in favor of these petitioners, ruling that the
statute was facially unconstitutional for two reasons: First, it included a grandfather
clause exempting those who had been employed in elder care positions as of July 1,
1998, but no such exemption for those whose employment started later. Id. at 521.
Second, the ban was based upon an irrebuttable presumption that was impermissible
under the three-prong test articulated by our Supreme Court in Department of
Transportation, Bureau of Driver Licensing v. Clayton, 684 A.2d 1060 (Pa. 1996).
Peake, 132 A.3d at 521-22.
      In making this determination in Peake, we reasoned that:
             [OAPSA]-covered facilities should not be required to
             employ a person with a criminal record, but they should
             have the opportunity to assess the situation and exercise
             their discretion to employ an applicant found to be
             sufficiently rehabilitated and a good fit for the job . . .
             [OAPSA] must be “fine-tuned” to relate the particular
             criminal conviction to particular employment. [OAPSA’s]
             current blanket prohibition lacks fine-tuning because it
             treats all the enumerated crimes, regardless of their vintage
             or severity, as the same even though they present very
             different risks of employment.

                                          15
Id. at 522.16
       The nature of the statute challenged in Johnson, as well as these other cases,
can be distinguished from Section 111(f.1)(1), in that those other statutes imposed
lifelong bans, rather than an employment ban of a fixed duration, like the statute in
the instant matter. In that regard, the instant appeal presents a matter of first
impression, namely, whether a time-limited employment ban resulting from a
criminal conviction violates an individual’s substantive due process rights under the
Pennsylvania Constitution. However, the right affected by Section 111(f.1)(1),
namely employment in one’s desired field, as well as the predication of this statute’s
employment ban upon previous convictions, are not so distinguishable. Thus, while
the particulars of this matter are unique, these cases still serve to define the contours
of our analysis.
       The above-cited case law reveals the inherent tension which exists between
general principles of statutory interpretation and how our appellate courts have
applied the rational basis test, in the context of statutory employment bans predicated
upon previous criminal convictions. The General Assembly has declared “[w]hen
the words of a statute are clear and free from all ambiguity, the letter of it is not to
be disregarded under the pretext of pursuing its spirit.” Section 1921(b) of the
Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(b). In addition, it is well-
settled that:
                [o]ur law provides a strong presumption that legislative
                enactments . . . do not violate our Constitution.
                Pennsylvanians Against Gambling Expansion Fund, Inc.
                v. Commonwealth, 583 Pa. 275, 292, 877 A.2d 383, 393
                (2005) . . . A party that challenges the constitutionality of

       16
           We also held that the statute was unconstitutional as applied, noting that all of the
petitioners’ convictions were 15 to 34 years old and that their criminal records had been clean ever
since their long-ago convictions. Peake, 132 A.3d at 522.


                                                16
             a statute bears “a very heavy burden of persuasion” to
             overcome this presumption. Id. “Accordingly, a statute
             will not be declared unconstitutional unless it clearly,
             palpably, and plainly violates the Constitution. All doubts
             are to be resolved in favor of finding that the legislative
             enactment passes constitutional muster.” Id. (Emphasis
             in original.) (Citations omitted).
Barrel of Monkeys, LLC v. Allegheny Cty., 39 A.3d 559, 563–64 (Pa. Cmwlth. 2012).
Even so, our Supreme Court has held:
             [i]n order to avoid an absurd and harsh result, a court may
             look beyond the strict letter of the law to interpret a statute
             according to its reason and spirit and accomplish the object
             intended by the Legislature. To interpret [a law as
             mandating] . . . a blanket prohibition barring anyone who
             has been convicted of a crime . . . without regard to the
             remoteness of those convictions or the individual’s
             subsequent performance would be unreasonable.

John’s Vending, 309 A.2d at 362 (citations omitted). Consequently, as shown by
the aforementioned cases, such statutory employment bans have been repeatedly
deemed facially unconstitutional, or unconstitutional as-applied on substantive due
process grounds, either because the challenged statute itself does not permit
contemplation of such evidence and sweeps too broadly, or the evidence in a specific
situation does not establish a reasonable basis for imposing a severe sanction like
the loss of one’s job.
      Applying this precedent to the instant manner, as stated earlier, Mr. Megraw
asserts that the challenged 10-year employment ban, as applied to him, violated his
substantive due process rights because there is no correlation or evidence that his
2009 conviction impacts his current or prospective ability to properly perform his
groundskeeping duties. Megraw’s Br. at 30-38. Mr. Megraw further alleges that the
Trial Court erred in considering his prior disciplinary history since the School
District’s sole witness specifically admitted that Mr. Megraw’s 2009 felony


                                           17
conviction was the only reason Mr. Megraw was fired. Id. at 38-45. Finally, Mr.
Megraw argues that the Trial Court also abused its discretion by determining that
Mr. Megraw’s termination was warranted, because Mr. Megraw’s repeated
assertions that he had believed his ex-wife had dropped the PFAO showed him to be
a dishonest person. Id. at 45-46.
      The School District counters Mr. Megraw’s claims of as-applied
unconstitutionality by arguing the statute does not impose a lifetime ban, meaning
his case is thus distinguishable from Johnson. School District’s Br. at 17-18. It next
opines the gap in time between Mr. Megraw’s criminal activity and his subsequent
termination (7 years, 8 months) is far closer than those in Johnson (30 years). Id.
Third, the School District raises concerns about Mr. Megraw’s 2009 conviction, and
his subsequent disavowals that he was guilty. The School District asserts that
because Mr. Megraw has backtracked on his admissions in his guilty plea, this
renders him too untrustworthy to carry out his groundskeeping duties, and implicates
the School District’s interest in having honest employees. Id. at 18-20. Finally, the
School District maintains that Mr. Megraw’s post-conviction disciplinary record
shows that his conviction was part, and predictive, of a larger pattern of bad
behavior. Id. at 20-21.
      However, these responses by the School District fail to establish a rational
basis for applying Section 111(f.1)(1)’s 10-year ban to Mr. Megraw by virtue of his
2009 conviction.
      While both a statutory employment ban’s duration and the length of time
between conviction and sanction are important elements of an inquiry into such a
ban’s constitutionality, the law does not permit these factors to be assessed in a
mechanical fashion to determine whether a ban passes muster. Both the 10-year ban,



                                         18
as well as the 7-year, 8-month gap between the activity which gave rise to Mr.
Megraw’s criminal conviction and his subsequent firing, represent significant
lengths of time, which must be treated as such when assessing the ban’s as-applied
constitutionality. See Ake v. Bureau of Professional and Occupational Affairs, 974
A.2d 514, 520 (Pa. Cmwlth. 2009) (“[T]he nature of the offending conduct and its
remoteness in time must be considered where an agency seeks to revoke a
professional license on the basis of a conviction. . . . [S]even years [between the
offending conduct and license revocation] is a substantial interval of time.”).
      As it relates to “dishonesty,” the School District, like any employer, clearly
has a vested interest in ensuring its employees are honest. However, a fired
employee’s untruthfulness can only supply the rational basis for applying a statutory
employment ban where the dissembling has, or has had, a tangible and direct effect
upon his job performance. See John’s Vending, 309 A.2d at 362 (an individual’s
convictions for crimes of moral turpitude cannot justify license revocation, where
the convictions do not implicate his “present ability to properly discharge the
responsibilities required by [his] position.”; id. at 19-20 (general interest in
employees’ character and moral fitness does not create rational basis for statutorily
mandated firing). Here, it would take a significant leap of logic, in support of which
the School District offers no evidence, to affirmatively link Mr. Megraw’s decision
to disavow his guilty plea with his ability to diligently, faithfully, and honestly mow
lawns and trim bushes at the School District’s behest.
      Nor does Mr. Megraw’s prior history of disciplinary issues create a suitable
justification for imposing the 10-year ban upon him. Indeed, Ms. Lynn David, the
School District’s Director of Human Resources and the School District’s only
witness presented via her prior deposition testimony, specifically testified that Mr.



                                          19
Megraw was fired solely because Section 111(f.1)(1) required such action by the
School District due to his felony conviction and agreed that, were it not for this law,
the School District would not have terminated Mr. Megraw:17

               [MR. HERRING] [Mr. Megraw’s attorney]: Okay. And
               now that you learned that he has this F -- I’m going to call
               it F3 -- F3 related to the firearm, what do you then do?
               [MS. DAVID]: Contact counsel.
               [MR. HERRING]: Okay. And don’t tell me what counsel
               said. But as a result of your contact with counsel, we can
               agree that a decision was made to terminate Mr. Megraw?
               [MS. DAVID]: Correct.
               [MR. HERRING]: Okay. And the termination decision
               was based on the fact that he had the F3 conviction in his
               background?
               [MS. DAVID]: Correct --
               [MR. HERRING]: Okay.
               [MS. DAVID]: -- as it relates to that law.
               [MR. HERRING]: As it relates to the changes in the
               School Code?
               [MS. DAVID]: Correct.
               [MR. HERRING]: And the changes in the School Code
               create a bar of employment for anyone that has an F3
               conviction?
               [MS. DAVID]: It has a span of time during which, after
               the conviction, the individual may not be employed by the
               School District…
               [MR. HERRING]: [T]he School Code requires as written
               that there’s a bar of employment for ten years after that,
               correct, as you read it?
               [MS. DAVID]: I would not rely on my reading of it.
               [MR. HERRING]: How about counsel’s?
               [MS. DAVID]: Yes. I would rely on counsel’s reading of
               it.
               [MR. HERRING]: And that’s why the termination took
               place, because the bar had not ended?

       17
          It is important to note that, pursuant to Section 111(g) of the Code, the School District
faced the threat of civil penalties if it did not fire Mr. Megraw upon learning of his felony
conviction, as required by Section 111(f.1)(1).



                                               20
             [MS. DAVID]: Correct.
             [MR. HERRING]: And we can agree, but for the
             conviction and the bar, the School District would not have
             terminated Mr. Megraw? But for the conviction and the
             bar, there would not have been a termination action?
             [MS. DAVID]: Not at that time, no.
             [MR. HERRING]: Correct, or as we sit here today, there
             was no intent to terminate him for any reason at that time?
             [MS. DAVID]: Correct.

David Dep., 5/2/16 at 9-12.


      Thus, the School District cannot defend the constitutionality of Mr. Megraw’s
termination by referring to prior deficiencies in his employment history that would
not have otherwise resulted in the loss of his job. See Johnson, 59 A.3d at 24-25
(employer’s admission that employee would not have been fired absent statutorily
mandated employment ban shows “that his [temporally] remote conviction does not
reflect upon his present abilities to perform the duties of his position.”).
      Finally, to support its decision to terminate Mr. Megraw, the School District
maintains that Mr. Megraw’s post-conviction disciplinary record shows that his
conviction was part, and predictive, of a larger pattern of bad behavior. Even if we
were to disregard the fact that the School District offered no evidence whatsoever to
support such a bald and broad assertion, this argument also fails for the same reason
that Mr. Megraw’s prior disciplinary record is not a relevant consideration.
      Therefore, as the School District has failed to articulate any rational basis for
how imposing the 10-year employment ban upon Mr. Megraw furthers a legitimate
governmental interest, we hold that Section 111(f.1)(1), as applied, violated Mr.
Megraw’s substantive due process rights under Article I, Section 1 of the
Pennsylvania Constitution.      Accordingly, we reverse the Trial Court’s orders


                                           21
denying summary judgment to Mr. Megraw and granting summary judgment in
favor of the School District.

                                            ________________________
                                            ELLEN CEISLER, Judge




                                  22
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Patrick Megraw,                   :
                  Appellant       :
                                  :
            v.                    : No. 577 C.D. 2017
                                  :
School District of Cheltenham     :
Township                          :


                                ORDER


      AND NOW, this 1st day of May, 2018, the orders of the Court of Common
Pleas of Montgomery County, dated April 13, 2017, are hereby REVERSED.



                                               ________________________
                                               ELLEN CEISLER, Judge
