Srarpe THE COURT OF COMMON PLEAS OF THE 39" JUDICIAL DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH Catherine M. Dusman, : Civil Action - Law Plaintiff _| vs. 2 No, 2013-4009 Joseph O. Padasak, Jr. Defendant Judge Shawn D. Meyers a ORDER OF COURT NOW THIS ee ~ day of July, 2015, upon review and consideration of Defendant’s Motion for Certification for an Interlocutory Appeal by Permission of the Court's May 21, 2015 Order, Defendant's Memorandum of Law in Support thereof, Plaintiff's Answer to Defendant's Motion, Plaintiff's Memorandum in Opposition to Defendant's Motion, the record, and the applicable law; THE COURT HEREBY ORDERS that Defendant's Motion is DENIED and no interlocutory appeal by permission shall be granted. Pursuant to the requirements of Pa.R.C.P. 236 (a)(2),(b) and (d), the Prothonotary shalt give written notice of the entry of this Order of Court, including a copy of this Order of Court, to each party’s attorney of record and shall note in the docket the giving of such notice and the time oH TD) A / Hegere Distt: Micheel I, Levin, Esq., Counsel for Defendant J. McDowell Sharpe, Esq., Counsel for Plaintif and manner thereof. LINDA L. BEARD, PR viron geTHE COURT OF COMMON PLEAS OF THE 39" JUDICIAL DISTRICT OF PENNSYLVANIA ~ FRANKLIN COUNTY BRANCH Catherine M. Dusman, Civil Action - Law Plaintiff : vs. + No. 2013-4009 Joseph O. Padasak, Jr., Defendant + Judge Shawn D. Meyers OPINION This matter involves a question as to if this Court should grant an interlocutory appeal by pemnission, PROCEDURAL HISTORY. ‘This Court outlined the procedural history in its May 21, 2015 Opinion as follows: Plaintiff initiated this action on October 4, 2013 by filing a Praecipe for Writ of Summons with this Cour, followed by a Complaint on August 25, 2013, Within the Complaint Plaintiff alleged defamation, false light, intentional infliction of emotional distress, and a violation of her constitutional rights under the Pennsylvania and United States Constitutions. Defendant removed the action to the United States District Court for the Middle District of Pennsylvania based on the privacy claim under the United States Constitution. However, Plaintiff subsequently filed an Amended Complaint which excluded the federal privacy claim and therefore moved the District Court for remand of the case to this Court because the District Court no longer had subject matter jurisdiction, On August 25, 2014 the District Court granted the motion and remanded the case to this Court. On October 28, 2014 Defendant filed Preliminary Objections to Plaintiff's Amended Complaint, along with a Memorandum of Law in support of his position. On January 8, 2015 Plaintiff filed a brief in opposition of the preliminary objections, Argument was held before this Court on April 9, 2015, May 21. 2015 Order of Court, P. 1, 2. In his preliminary objections, Defendant claimed that counts I, II, III, and IV, alleging defamation, false light, and intentional infliction of emotional distress should be dismissedbecause he is immune from torts as outlined in the Tort Claims Act and pursuant to the common law doctrine of high public official immunity. Defendant also claimed that count 1V (constitutional right of privacy under the Pennsylvania Constitution) should be dismissed for Plaintiff's “failure to allege the constitutional rights and statutes the claim is based upon, because [she] could not establish a prima facie case of violation of her right to privacy and she could not obtain monetary damages for her claim.” Defendant’s Memorandum of Law in Support of the sutory Appeal by Permission of the May 21, 2015 Order by Defendant Joseph O, Padasak, Jr., Page 2 On May 21, 2015, the Court entered an Order and Opinion sustaining the preliminary Motion for Certification for an. objections to count IV and overruling the preliminary objections to counts I, Ul, III, and V. The Court found, in its May 21, 2015 Opinion, that Defendant’s position as a school superintendent does not make him a high public official. Asa result, on June 22, 2015, Defendant filed a Motion for Certification for an Interlocutory Appeal by Permission of the Court's May 21, 2015 Order and a brief in support thereof. This Court ordered Plaintiff to respond to Defendant's Motion within twenty days of the filing of Defendant’s Motion. On July 13, 2015, Plaintiff filed an Answer to Defendant's Motion and a brief in opposition to Defendant's Motion. The matter is now ripe for decision by this Court. FACTUAL HISTORY This Court outlined the factual history of this matter in its May 21, 2015 Opinion as follows:Plaintiff is an assistant superintendent and Defendant [is] the superintendent at CASD.1 Plaintiff alleges that Defendant made false statements about her “outside the scope of his responsibilities and authority as a superintendent.” Plaintiff avers that on or around October 5, 2012 Defendant made false statements about Plaintiff to Andrew Nelson, Sarah Herbert, and Melissa Cashdollar, three elementary principals under Plaintiff's direct supervision, that an audit had uncovered that Plaintiff did not have a Commission from the Pennsylvania Department of Education and as a result Plaintiff could no longer legally supervise them. Plaintiff alleges that at some later time Defendant made similar comments to Dr. Ted Rabold and Dr, P. Duff Rearick, neither of whom were employees of or affiliated with CASD at the time. Stil later, similar false statements relating to Plaintiff's Commission are alleged to have been made to Lauren Stickell, a teacher who at the time was president of CAEA, the teacher’s union for CASD. Plaintiff further alleges that in November 2012 she applied for a position as the superintendent at Tuscarora School District (“TSD”). Chris Bigger, an administrative employee of CASD also applied for the position. During the interview process Plaintiff took eredit for successfully implementing a standards- based report card system at CASD for Kindergarten through Third Grade. Mr. Bigger also took credit for the system. Subsequent to the interviews Defendant had a conversation with Clifford A. Smith, the president of the board of directors for TSD. Plaintiff alleges that Defendant falsely told Mr. Smith that Plaintiff had lied about implementing the standards-based report cards and that Defendant's close friend Mr. Bigger had actually been responsible for its implementation. Immediately thereafter, Plaintiff was informed that she was no longer a candidate for the position, Plaintiff next contends that on February 19, 2013 Defendant invited Public Opinion reporter Brian Hall to sit in on Defendant's mid-year evaluation of Plaintiff because Mr. Hall was “shadowing” Defendant for the day. Plaintiff avers that Defendant allowed Mr. Hall to “receive the unauthorized release of confidential information during that evaluation.” Plaintiff alleges that Defendant subsequently took Mr. Hall out to lunch and informed him that Defendant planned on demoting Plaintiff from assistant superintendent to a non-supervisory position of Director of Early Education. 21, 2015 Order of Court, P. 2, 3 DISCUSSION Before the Court is Defendant's Motion for Certification for an Interlocutory Appeal by Permission, which requests an interlocutory appeal by permission and a stay while that appeal is "All facts are drawn from Plaintiff's Amended Complaint. 3proceeding. Interlocutory appeals by permission are guided by 42 Pa. C.S, §702 and Pa. R.A.P. 1311, Pursuant to 42 Pa. C.S.A. §702, When a court or other government unit, in making an interlocutory order ina matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order. 42 Pa. C.S.A. §702. In addition, according to Pa. R.A.P. 1311, (b) Petition for permission to appeal.—Permission to appeal from an interlocutory order containing the statement prescribed by 42 Pa.C.S. § 702(b) may be sought by filing a petition for permission to appeal with the prothonotary of the appellate court within 30 days after entry of such order in the lower court or other government unit with proof of service on all other parties to the matter in the lower court or other government unit and on the government unit or clerk of the lower court, who shall file the petition of record in such lower court. An application for an amendment of an interlocutory order to set forth expressly the statement specified in 42 Pa.C.S. § 702(b) shall be filed with the lower court or other government unit within 30 days after the entry of such interlocutory order and permission to appeal may be sought within 30 days after entry of the order as amended. Unless the trial court or other government unit acts on the application within 30 days after it is filed, the trial court or other government unit shall no longer consider the application and it shall be deemed denied, Pa. R.A. 1311 (b). In sum, pursuant to 42 Pa. C.S.A. §702(b), a party may appeal by permission from an interlocutory order if the order includes a statement that the order imvolves a controlling question of law as to which there are substantial grounds for a difference of opinion and that an interlocutory appeal would materially advance the ultimate termination of the matter. However, if'a party wishes to take an interlocutory appeal by permission from an order that does not contain the above-mentioned 42 Pa, C.S.A. §702 (b) statement, the party must apply to the trial court to have said order amended to include the statement within thirty days of the order’s entry on the docket. After the order is amended to include the statement, the party may then proceed with an interlocutory appeal by permission within thirty days of theamendment, ‘This Court’s May 21, 2015 Order in question does not have the 42 Pa. C.S.A. §702(b) language. Defendant filed a timely application to this Court seeking an amendment of the May 21, 2015 Order so that it would include the 42 Pa, C.S.A. §702(b) language. In Defendant's Motion for Certification for an Interlocutory Appeal by Permission of the Court's May 21, 2015 Order, Defendant states that the question as to if he is a high public official “involves a controlling question of law to which there is substantial ground for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of the case.” Defendant’s Memorandum of Law in Support of the Motion for Certification for an Interlocutory Appeal by Permission of the May 21, 2015 Order by Defendant Joseph O. Padasak, Jr., Page 3 (emphasis added). If an interlocutory appeal by permission is granted, the Defendant also secks to stay the case until the final outcome of the appeal, Id. Defendant claims that if he were deemed to be a high public official on appeal, “the trial level litigation in this case [would become] an unnecessary waste of resources for the parties and the Court as the absolute privilege afforded to high public officials could ultimately shield (him) from all of the claims that remain in the case.” Id. Plaintiff counters that under Pennsylvania case law, there are no substantial grounds for a disagreement as to whether Defendant is a high public official. In addition, Plaintiff argues that even if this Court’s conclusion that Defendant is not a high public official was reversed on appeal, there would still be outstanding issues. For example, this Court would still need to determine whether Defendant was acting “in the course of (his] . . . duties or power and within (ff's Answer to Defendant’s Motion for Certification for an the scope of his authority.” Pl Interlocutory Appeal by Permission of the Court’s May 21, 2015 Order, Paragraph 13.Under Pennsylvania case law, is there substantial grounds for difference of opinion as to whether Defendant is a high public official entitled fo absolute immunity For the reasons discussed in this Court's May 21, 2015 Opinion, this Court finds that there is no substantial grounds for a difference of opinion as to whether Defendant is a high public official entitled to absolute immunity. In addition, there is not one Pennsylvania state court case that this Court could find that holds that a school superintendent is @ high public official. Moreover, as outlined in this Court’s May 21, 2015 Opinion, a school superintendent is subordinate and answerable to the school board of directors, and it is the board that has broad policymaking powers. Superintendents are under the supervision and control of the school board. See 24 P.S, § 5-510 (“[t]he board of school directors in any school district may adopt and enforce such reasonable rules and regulations as it may deem necessary and proper, regarding the management of its school affairs and the conduct and deportment of all superintendents . . .”). This Court has already thoroughly analyzed and found that Defendant is not a high public official entitled to absolute immunity and cannot find substantial grounds for a difference of opinion as to the issue. 11, Will an immediate appeal advance the ultimate termination of this matter Next, this Court must determine whether an immediate appeal will advance the ultimate termination of this matter. This Court finds that an immediate appeal will not advance the ultimate termination of this matter as issues will remain even if this Court’s finding that Defendant is not a high public official is reversed on appeal. First, even if an appellate court determined that Defendant was a high public official for purposes of immunity, Plaintiff is correct in her assertion that there would still be questions as to whether Defendant was acting within the scope of his “duties or power and within the scope ofindner v. Mollan, 677 A.2d 1194, 1198 (Pa. 1996). Said otherwise, the his authority. Pennsylvania Supreme “Court has made clear that the doctrine of absolute privilege for high public officials applies ‘provided that the statements are made or the actions are taken in the course of the official's duties or powers and within the scope of his authority, or as itis sometimes expressed, within his jurisdiction.” Id, at 1198. This issue will not be resolved on appeal as this Court has not yet determined whether Defendant acted within the scope of his employment when the alleged wrongful conduct oceurred. Moreover, there is « possibility that two appeals (one for the issue of whether Defendant vwas a high public official and a second for the issue of whether he was acting within the course of his employment) may result if this Court allowed an interlocutory appeal by permission at this stage of the proceedings. Therefore, itis clear that allowing an interlocutory appeal by permission at this stage of the proceedings will not materially advanee the ultimate termination of this matter. IIL Should this Court issue a stay pending the interlocutory appeal ‘This Court does not need to reach this issue as it finds that an interlocutory appeal by permission is not proper at this stage of the matter. CONCLUSION Im light of the above, this Court will not grant an interlocutory appeal by permission at this time, An Order consistent with this Opinion is attached,