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September 21, 2005.

FRED L. WAGNER, Plaintiff

The opinion of the court was delivered by: YVETTE KANE, District Judge


Before the Court is a partial motion to dismiss Plaintiff's second amended complaint filed collectively by the above-captioned defendants. (Doc. No. 35.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the motion will be granted in part and denied in part.


  Plaintiff initiated this civil action by a complaint filed May 25, 2004, which he subsequently amended on July 8, 2004, and amended again on January 28, 2005. In the second amended complaint Plaintiff names the following Defendants: Tuscarora School District ("District"); the Board of School Directors of the Tuscarora School District ("Board"); Principal Robert Beaumont; Superintendent Thomas Stapleford; individual Board members Jane Rice, Michael Rice, and Geoffrey Spidel ("Defendant Board Members"); and teachers Darla Tharp and Keith Smith ("Defendant Teachers"). On February 24, 2005, Defendants filed the motion to dismiss currently before the Court. (Doc. No. 35.)

  Plaintiff was employed by the District for a period of twenty years as a high school band director. (Doc. No. 33 at 4.) Beaumont is the principal of the high school. (Id.) Stapleford is the Superintendent of Schools for the District of Tuscarora. (Id.) Spidel, Jane Rice, and Michael Rice are members of the Board of Directors of the Tuscarora School District. (Id.) Tharp is a teacher at the high school and Smith is an elementary teacher. (Id. at 5.)

  Plaintiff alleges that Defendants conspired to terminate his employment. Specifically Plaintiff alleges that Defendant Beaumont harbored a personal dislike for Plaintiff and that Defendant Board Members hired Stapleford as Superintendent on the condition he terminate Plaintiff. (Id. at 6, 9.) Plaintiff claims that Defendant Board Members met with Superintendent Stapleford for the purpose of planning a course of action to suspend and/or terminate Plaintiff's employment. (Id. at 9.) Plaintiff also alleges that Defendants falsely accused him of receiving kickbacks and of sexually harassing students. (Id. at 10, 11-13.) Despite the lack of formal charges following a police investigation, Plaintiff was suspended without pay on August 12, 2003, and was allegedly told by Stapleford that "[he] had 24 hours to resign, or else he would be terminated." (Id. at 13.) Plaintiff claims he was suspended without notice or the opportunity to respond to the allegations against him. (Id.) In addition, Plaintiff alleges that Superintendent Stapleford and Principal Beaumont contacted local newspapers, which reported that Plaintiff was accused of sexually harassing students. (Id. at 14.)

  Plaintiff asserts the following claims: violations of his Constitutional rights to substantive and procedural due process; civil conspiracy; defamation per se; tortious interference with employment; breach of contract; and violation of the Pennsylvania Wage Payment and Collection Law, 43 Pa. Stat. Cons. Ann. § 2601 et seq. (Doc No. 33.) Defendants have moved to partially dismiss the claims against them for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 35.)


  A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When considering a motion to dismiss, the court accepts as true all factual allegations contained in the complaint and views them in the light most favorable to the plaintiff. United States Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The plaintiff is required to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court should grant a motion to dismiss only if it appears the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985) (citations omitted).

  A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, "a court need not credit a complaint's `bald assertions' or `legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Lake v. Arnold, 112 F.3d 682, 688 (3d Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)).



  The Fourteenth Amendment forbids state actors from depriving persons of life, liberty or property without due process of law. U.S. Const. amend. XIV, § 1; see also Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005). The protections required by the Due Process Clause are triggered by the particular rights and interests at stake in a case. Graham v. City of Philadelphia, 402 F.3d 139, 145 (3d Cir. 2005) (citing Washington v. Harper, 494 U.S. 210, 229 (1990)). Plaintiff has alleged that the District, Board, Beaumont, Stapleford, and Defendant Board Members acted under color of law to violate Plaintiff's due process rights. Plaintiff contends that Defendants deprived Plaintiff of his liberty interest in his reputation, an asserted property interest in his employment, and his right to potential future employment. (Doc. No. 33 at 20, 24.) Defendants have moved to dismiss the substantive due process portion of Counts I and II as to all Defendants and the procedural due process portion of Count II as to all Defendants.

  In a substantive due process challenge of non-legislative state action, the United States Court of Appeals for the Third Circuit has held that a plaintiff must establish, as a threshold matter, that the property interest at stake is "fundamental" under the Constitution. Nicholas v. Pa. State Univ., 227 F.3d 133, 142 (3d. Cir. 2000). Courts have held that property interests in employment are not so "fundamental" as to be afforded substantive due process protections. See Id.; see also Williams v. Pa. State Police Bureau of Liquor Enforcement, 108 F. Supp. 2d 460, 470-71 (E.D. Pa. 2000) (holding that public employment is not a fundamental property interest that implicates substantive due process). For example, in Nicholas, a tenured university professor brought a substantive due process challenge against the university for retaliatory discharge and breach of contract. The Third Circuit held that the professor's interest in his tenured employment was not a protected property interest to which substantive due process applies. Id. at 143. The Third Circuit joined the majority of courts of appeals when it reasoned that "tenured public employment bears little resemblance to other rights and property interests that ...

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