ARGUED: March 6, 2018
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE
ELLEN CEISLER, Judge, HONORABLE JAMES GARDNER COLINS, Senior
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),  which became effective in
September 2011, 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." We conclude that, as applied,
this statute violates Mr. Megraw's substantive due
process rights and therefore reverse the Trial Court.
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. Megraw and
never considered this pattern of behavior serious enough to
warrant termination of his employment. See David
Dep., 5/2/16 at 12.
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),
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.
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 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. §
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.Mr. Megraw was
sentenced to four years' probation, which he completed
without incident. Tr. Ct. Op. at 2.
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.
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.
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. 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
2. How the 2009 conviction reflects upon [Mr. Megraw's]
present abilities to perform his duties with the [S]chool
3. [Mr. Megraw's] job performance from 1995 to the
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
Tr. Ct. Order, 11/8/16 at 1.
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
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.
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. Id. at 45-46.
Mr. Megraw Has Waived His Challenge to the Facial
Constitutionality of Section 111(f.1)(1) of
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
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 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
Section 111(f.1)(1) of the Code, As Applied to Mr.
Megraw, Violated His Substantive Due Process Rights
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
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. Nixon v.
Commonwealth, 839 A.2d 277, 287-88 & n.15 (Pa.
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).
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. 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.
Johnson dealt with a separate section of the Code,
interestingly, both parties primarily rely on our Court's
holding in Johnson to support their 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.
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