                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2003

Laverdure v. Montgomery
Precedential or Non-Precedential: Precedential

Docket 02-2773




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Recommended Citation
"Laverdure v. Montgomery" (2003). 2003 Decisions. Paper 583.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/583


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                                   PRECEDENTIAL

                                                Filed April 2, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 02-2773


                      KELLY LAVERDURE,
                                              Appellant
                                  v.
                 COUNTY OF MONTGOMERY;
                   MICHAEL D. MARINO

        Appeal from the United States District Court
          for the Eastern District of Pennsylvania
             (D.C. Civil Action No. 01-cv-02542)
        District Judge: Honorable Harvey Bartle, III

                   Argued: January 23, 2003
          Before: NYGAARD, AMBRO and LOURIE,*
                      Circuit Judges

                  (Opinion filed April 2, 2003)
                          Joseph A. O’Keefe, Esquire (Argued)
                          O’Keefe & Sher
                          15019 Kutztown Road
                          Kutztown, PA 19530




* Honorable Alan D. Lourie, United States Circuit Judge for the Federal
Circuit, sitting by designation.
                              2


                       John V. Ryan, Esquire
                       2071 Tulpehocken Road
                       Wyomissing, PA
                         Attorneys for Appellant
                       Joseph J. Santarone, Jr., Esquire
                        (Argued)
                       John J. Hare, Esquire
                       Marshall, Dennehey, Warner
                       Coleman & Goggin
                       One Montgomery Plaza, 10th Floor
                       Norristown, PA 19401
                         Attorneys for Appellee


                 OPINION OF THE COURT

AMBRO, Circuit Judge:
  We decide whether, under the circumstances of this case,
a county is liable under 42 U.S.C. § 1983 for the
statements of a member of its board of commissioners and
whether, under Pennsylvania law, a commissioner is
entitled to absolute immunity for his statements. The
District Court answered no to the first question and yes to
the second. We do as well.

    I.   Factual Background And Procedural History
   This dispute arose because of an E. coli outbreak in
November 2000 traced to Merrymead Farms in Montgomery
County, Pennsylvania (the “County”). Several parents of
afflicted children called the Appellant, Kelly LaVerdure, who
at the time was working as a Disease Intervention
Specialist with the Montgomery County Health Department.
LaVerdure purportedly failed to follow up on these phone
calls and investigate the E. coli cases. Appellees allege that,
had LaVerdure properly performed her duties, the outbreak
could have been contained earlier and fewer children would
have fallen ill.
  The three-member Montgomery County Board of
Commissioners, Montgomery County’s executive body,
                             3


unanimously decided to fire LaVerdure at a November 30,
2000 Board meeting. Following that meeting, the chairman
of the Board, Michael Marino, spoke at a press conference
in which he rebuked LaVerdure. LaVerdure argues that,
because     she   was     terminated   with    accompanying
stigmatizing comments, the Fourteenth Amendment entitles
her to a “name-clearing” due process hearing. See Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 573-74 (1972)
(stating that a name-clearing hearing is required for public
employees terminated with public stigma).
   LaVerdure’s complaint alleges (1) that the County violated
her Fourteenth Amendment due process right by not
affording her a name-clearing hearing, for which 42 U.S.C.
§ 1983 provides a cause of action, and (2) a supplemental
state-law claim against Marino for slander and libel. The
District Court dismissed her slander and libel claims on the
ground that 42 Pa. Cons. Stat. § 8546 affords Marino
absolute immunity. After LaVerdure had finished
presenting her case to the jury, and with one remaining
witness for the defense yet to be called, the District Court
granted the County’s Rule 50 motion with respect to her
§ 1983 claim, thereby dismissing that claim as a matter of
law. The Court denied LaVerdure’s motion for a new trial.
She appeals the District Court’s dismissal of her § 1983
and state-law claims.

       II.   Jurisdiction And Standard Of Review
  The District Court had subject matter jurisdiction over
the § 1983 claim under 28 U.S.C. § 1331 and over the
supplemental state-law claims under 28 U.S.C. § 1367. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
  We exercise plenary review of the District Court’s grant of
judgment as a matter of law. Northview Motors, Inc. v.
Chrysler Motors Corp., 227 F.3d 78, 88 (3d Cir. 2000). “A
court should grant such a motion only if, viewing the
evidence in the light most favorable to the nonmovant and
giving it the advantage of every fair and reasonable
inference, there is insufficient evidence from which a jury
reasonably could find liability.” Id. (internal quotation
marks omitted) (quoting Lightning Lube, Inc. v. Witco Corp.,
4 F.3d 1153, 1166 (3d Cir. 1993)).
                                4


  Whether Marino and the County are entitled to absolute
immunity, under 42 Pa. Cons. Stat. § 8546, from the
supplemental state-law claims is a question of statutory
interpretation over which we also exercise plenary review.
Moody v. Sec. Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063
(3d Cir. 1992).

                      III.    Discussion
A. Whether      Marino       spoke   for   the   Board   as   a
policymaker
   Municipalities and other bodies of local government such
as Montgomery County are liable under § 1983 only if they
have caused a constitutional tort through “a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Monell v.
Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690
(1978); see also id. at 691 (rejecting the notion that
municipalities and local governments may be liable under a
theory of respondeat superior). It is undisputed that only a
majority of the three-member Board is authorized to
establish policy on behalf of the County. 16 Pa. Cons. Stat.
§ 504. Therefore, whatever the contents of Marino’s
statements, because he was only one member of the Board,
those comments do not constitute County policy. See City
of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (“[O]nly
those municipal officials who have ‘final policymaking
authority’ may by their actions subject the government to
§ 1983 liability.”).
  Even though Marino himself lacked final policymaking
authority that could bind the County, LaVerdure could
have demonstrated that the Board delegated him the
authority to speak for the Board or acquiesced in his
statements. Id. at 127 (“If the authorized policymakers
approve a subordinate’s decision and the basis for it, their
ratification would be chargeable to the municipality
because their decision is final.”); Andrews v. City of Phila.,
895 F.2d 1469, 1481 (3d Cir. 1990) (“Given that [the police
commissioner] was the official policymaker in this case, the
City can be held liable only if [the commissioner] either
acquiesced in [the subordinate’s] decisions or delegated his
                                  5


authority to him.”). LaVerdure failed to meet her burden to
prove delegation or acquiescence, however. She failed even
to depose the other two Board members or call them to
testify at trial — methods by which she might have proved
delegation or acquiescence. Thus, the District Court was
correct in holding that Marino’s comments could not
subject the County to § 1983 liability.
   LaVerdure argues also that the District Court instructed
her counsel “that all that was relevant was what Chairman
Marino is alleged to have said and what, if anything, was
false about what he said.” As a result of this instruction,
LaVerdure contends that her counsel believed that she did
not need to prove that Marino had final policymaking
authority or that the Board acquiesced in Marino’s
statements. She alleges that the District Court’s instruction
thereby prejudiced her case. We disagree. Proving that a
municipal official is a final policymaking authority is a
fundamental element of a § 1983 cause of action against a
municipality. We do not read the District Court’s statement
as relieving LaVerdure of needing to prove this threshold
element.1
B.   Absolute immunity under Pennsylvania law
   With respect to her state-law defamation and slander
claims, LaVerdure argues that the District Court erred in
holding Marino absolutely immune under 42 Pa. Cons.
Stat. § 8546. We again disagree. Caselaw indicates that
Marino is entitled to § 8546 immunity. See Zugarek v. S.
Tioga Sch. Dist., 214 F. Supp. 2d 468, 479 (M.D. Pa. 2002)
(“School Board members, entrusted with a policymaking
role for the School District, are high public officials entitled
to absolute immunity from state law suits when acting in
their official capacities.”); Satterfield v. Borough of Schuylkill
Haven, 12 F. Supp. 2d 423, 442 (E.D. Pa. 1998) (“We have
no trouble finding that borough council members qualify as
‘high public officials’ for the purposes of immunity from
defamation.”); Montgomery v. City of Phila., 140 A.2d 100,
105 (Pa. 1958) (holding that the Deputy Commissioner of

1. Moreover, because the District Court allegedly made its statement at
a pre-trial conference, it was not transcribed. Thus, we cannot assess
the alleged statement in the context of its delivery.
                              6


Public Property of Philadelphia and the City Architect were
entitled to absolute immunity); Malia v. Monchak, 543 A.2d
184, 187 (Pa. Commw. Ct. 1988) (holding that school
principal and superintendent are entitled to immunity).
   Finally, LaVerdure argues that the District Court’s
holding that Marino was immune under § 8546, which
turns on whether he is a policymaker, is inconsistent with
the Court’s holding that he was not a policymaker for
§ 1983 purposes. We perceive no inconsistency. Sections
1983 and 8546 are different statutes, one state and one
federal, and they define “policymaker” differently. To be a
policymaker for § 1983 purposes, an official must have final
policymaking authority. By contrast, to have § 8546
immunity, one need only be a policymaker. Compare
Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986)
(“The fact that a particular official — even a policymaking
official — has discretion in the exercise of particular
functions does not, without more, give rise to [§ 1983]
municipal liability based on an exercise of that discretion.
The official must also be responsible for establishing final
government policy respecting such activity before the
municipality can be held liable.”) (emphasis added) (internal
citation omitted), with 42 Pa. Cons. Stat. § 8546 (granting
official immunity with respect to “all acts of members of the
governing body of a local agency or the chief executive
officer thereof ” if such acts are “arising from, or reasonably
related to, the office or the performance of the duties of the
employee”) (emphasis added), and Factor v. Goode, 612
A.2d 591, 593 (Pa. Commw. Ct. 1992) (noting that
Pennsylvania affords absolute privilege to “high public
officials”). This doctrinal difference may stem from the fact
that the goals of § 1983 and § 8546 are different. Section
8546 seeks not to restrict unduly any officials in the
performance of their duties. This policy counsels in favor of
a broad grant of immunity and thus a broad definition of
“policymaker.” By contrast, § 1983 in this context seeks to
ensure that local governments will not be held responsible
unless there is a policy or sanctioned practice of the
government itself. This federal policy counsels in favor of a
narrower definition of policymaker.
                          * * * * * *
                              7


  For LaVerdure’s claim on federal grounds, she failed to
show that Marino’s comments (whether stigmatizing or not)
constituted either the County’s policy or sanctioned
practice. As to her state-law claim, Marino as a
Commissioner has immunity. Thus we affirm.

A True Copy:
        Teste:

                  Clerk of the United States Court of Appeals
                              for the Third Circuit
