Paul Montemuro v. Jim Thorpe Area School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 22-1866

____________

PAUL MONTEMURO

v.

JIM THORPE AREA SCHOOL DISTRICT;

GLENN CONFER, individually and as School Board

Member; DENNIS MCGINLEY, individually and as School

Board Member; RANIERO MARCIANTE, individually and

as School Board Member;

PEARL DOWNS-SHECKLER individually and as School

Board Member; GERALD STRUBINGER, individually and

as School Board Member,

Appellants

_______________

On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. No. 3-20-cv-00208)

District Judge: Honorable Robert D. Mariani

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Argued

January 18, 2024

Before: JORDAN, BIBAS, and AMBRO, Circuit Judges

(Filed: May 1, 2024)

_______________

David W. Brown

Michael I. Levin [ARGUED]

Levin Legal Group

1800 Byberry Road

1301 Masons Mill Business Park

Huntingdon Valley, PA 19006

Counsel for Appellants

William E. Vinsko, Jr. [ARGUED]

37 N. River Street

Wilkes-Barre, PA 18702

Counsel for Appellee

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OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Paul Montemuro was elected President of the Jim

Thorpe Area School Board (the “School Board” or “Board”).

But then, a week later, the Board elected someone else.

Montemuro received no notice of the change beforehand, so he

sued the Board members who voted to oust him, along with the

Jim Thorpe Area School District (the “District”) for depriving

him of property without due process, in violation of 42 U.S.C.

§ 1983 and the Fourteenth Amendment. The defendant Board

members and District (collectively, the “Defendants”) asserted

2

qualified immunity, but the District Court held that Montemuro

had a clearly established property right in his employment and

had been deprived of that right without due process. Because

Pennsylvania law clearly establishes that Montemuro had a

property interest in his job as the Board President, and because

we must accept as true his allegation that he was removed from

office without notice, we will affirm.

I. BACKGROUND

The Jim Thorpe Area School District is located in

Carbon County, Pennsylvania. Paul Montemuro served with

Glenn Confer, Dennis McGinley, Pearl Downs-Sheckler,

Raniero Marciante, and Gerald Strubinger as members of the

School Board. On December 4, 2019, a majority of the Board

elected Montemuro to be President of the Board. For reasons

not apparent on the record, a week later, the Board elected a

new president. Montemuro claims that the Board did not notify

him of its plan to reorganize, nor did it provide him a hearing

before his ouster. He responded by suing the District and the

Board members who voted against him for depriving him of

his property interest in the position of Board President without

due process and in violation of 42 U.S.C. § 1983 and the

Fourteenth Amendment. He raised other federal and state

claims, none of which are relevant at this point.

The Defendants moved to dismiss, asserting, among

other things, qualified immunity as an affirmative defense. A

Magistrate Judge recommended that the District Court deny

the motion to dismiss for qualified immunity because

Montemuro had a “clearly established” property right and was

fired without due process. (J.A. at 26.) The Court adopted the

Magistrate Judge’s report and recommendation and denied the

3

motion to dismiss for qualified immunity. The Defendants

filed the interlocutory appeal on the qualified immunity

question that is before us now.

II. DISCUSSION1

Qualified immunity “shields governmental officials

from suit and from liability if their conduct ‘does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Mack v. Yost, 63

F.4th 211, 221 (3d Cir. 2023) (quoting Peroza-Benitez v.

Smith, 994 F.3d 157, 164-65 (3d Cir. 2021)). Only the

defendant Board members are eligible for qualified immunity;

1

The District Court had jurisdiction under 28 U.S.C.

§ 1331. The Magistrate Judge had jurisdiction under 28 U.S.C.

§ 636(c)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291

and the collateral-order doctrine because the parties do not

dispute the facts underlying the qualified immunity defense.

Perez v. Borough of Johnsonburg, 74 F.4th 129, 133 (3d Cir.

2023). Montemuro emphasizes that the parties dispute whether

the law underlying his property right was “clearly established.”

(Answering Br. at 2.) That, however, is a legal question. See

Elder v. Holloway, 510 U.S. 510, 516 (1994) (“Whether an

asserted federal right was clearly established at a particular

time … presents a question of law[.]”). We review de novo “a

district court’s denial of a motion to dismiss on qualified

immunity grounds as it involves a pure question of law.”

Dennis v. City of Philadelphia, 19 F.4th 279, 284 (3d Cir.

2021). At the motion to dismiss stage, “we must accept [the

plaintiff’s] allegations as true and draw all inferences in his

favor.” Id.

4

the District is not. See Barna v. Bd. of Sch. Dirs. of Panther

Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017) (noting that

a municipal entity is not eligible for qualified immunity).

There is a well-settled two-part test to determine whether

government officials should receive qualified immunity.

Anglemeyer v. Ammons, 92 F.4th 184, 188 (3d Cir. 2024). We

ask whether the plaintiff has alleged the violation of any

constitutional or statutory rights, and we further ask whether

those rights were clearly established at the time of the

challenged conduct, such that a reasonable official would have

known that the conduct violated the plaintiff’s rights. Id. We

are free to address those questions in the order we choose.

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

A. The Board violated Montemuro’s

constitutional right to due process.

The Fourteenth Amendment provides, in part: “No

State shall ... deprive any person of life, liberty, or property,

without due process of law[.]” U.S. Const. amend. XIV, § 1.

Montemuro claims that he was deprived of property, his job as

School Board President, without the requisite legal process. To

succeed, he must demonstrate, first, that he was deprived of a

property interest protected by the Fourteenth Amendment and,

second, that the procedures available to him “did not provide

due process of law.” Thompson v. Delaware Dep’t of Servs.

for Child., Youth & Their Fams., 44 F.4th 188, 194 (3d Cir.

2022).

1. Montemuro had a property interest in his

job as School Board President.

A state employee has a constitutionally protected

property interest in his job if he can only be terminated for

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cause. Id. We look to “state law and rules” to determine

whether an employee can be fired only for cause, id., and, in

this instance, an answer is there: Pennsylvania law establishes

that a school board president can be fired only for cause. The

Pennsylvania Constitution, in § 7 of Article VI, declares, “[a]ll

civil officers shall hold their offices on the condition that they

behave themselves well while in office, and shall be removed

on conviction of misbehavior in office or of any infamous

crime.” It goes on to say that “[a]ppointed civil officers …

may be removed at the pleasure of the power by which they

shall have been appointed.” Id. In a case from the mid-

twentieth century, Buell v. Union Township School District, the

Supreme Court of Pennsylvania applied the text of § 7 and

determined that school officials (in that case, a school district

secretary and treasurer) are appointed civil officers. 150 A.2d

852, 854-55 (Pa. 1959). Further, the Court concluded that such

civil officers “could be removed at the pleasure of the body

which appointed [them].” Id. at 855. The Defendants lay

heavy emphasis on that latter point to argue that Montemuro

was terminable at will and so had no property interest in his

position. But they ignore how the Pennsylvania Supreme

Court has since interpreted the entirety of § 7.

In a 2007 case, Burger v. School Board of McGuffey

School District, the Pennsylvania Supreme Court recognized

the superintendent of a school board as a “civil officer” under

Article VI, § 7 of the Commonwealth’s constitution but then

determined that he was not removable at will. 923 A.2d 1155,

1157, 1163 (Pa. 2007). It began by summarizing the trial

court’s analysis, saying, “[t]he trial court found that the

constitutional grant of authority conferred upon the appointing

power to remove an appointed civil officer … is absolute,

thereby permitting no limitations on that authority.” Id. at

6

1161-62. The Supreme Court then made clear its disagreement

with the trial court – and, indeed, with Buell – by rejecting the

idea that § 7 creates an at-will removal power over all

appointed civil officers. The Court looked to the first sentence

of that section and said, “[t]he provision that such civil officers

shall hold their offices on the condition that they ‘behave

themselves well while in office,’ and that they shall (not may)

be removed ‘on conviction of misbehavior in office or of any

infamous crime’ contemplates an affirmative limitation (good

behavior) upon removal.” Id. at 1162. Hence, the Court

concluded, such officers are not removable at will. Id. (“We

therefore hold that, as a matter of plain meaning, the

Constitution does not vest in the appointing power unfettered

discretion to remove. Instead, valid removal depends upon the

officer behaving in a manner not befitting the trust placed in

him by the appointing authority.”) The upshot is that

Montemuro, as Board President, while being an “[a]ppointed

civil officer” under Article VI, § 7, see Buell, 150 A.2d at 854,

was not subject to at-will removal but only to removal for

cause. He thus had a property interest in the Board Presidency.

Pennsylvania statutes further support that Montemuro

had a property interest in his position. Section 5-514 of the

Public School Code states:

The board of school directors in any school

district, except as herein otherwise provided,

shall after due notice, giving the reasons therefor,

and after hearing if demanded, have the right at

any time to remove any of its officers,

employe[e]s, or appointees for incompetency,

intemperance, neglect of duty, violation of any of

7

the school laws of this Commonwealth, or other

improper conduct.

24 Pa. Stat. Ann. § 5-514 (emphasis added). And the school

board president is an “officer” of the school board, as is evident

from § 4-404 of the Public School Code, which creates the

office and is entitled “election of officers.”2 See Buell, 150

A.2d at 854 (assuming school secretary and treasurer qualify

as “officers” under § 5-514). Thus, by its terms, § 5-514

provides that school district officers can only be fired for cause.

The analysis, however, is complicated by Buell, which

held § 5-514 unconstitutional “[t]o the extent that [it] is in

conflict with … the Constitution[.]” 150 A.2d at 855. The

Buell court followed much the same logic pressed by the

Defendants here, namely that the constitutional provision just

discussed allows a civil officer to be terminated without cause.

But once again Burger comes to Montemuro’s rescue. Burger

2

A Commonwealth statute directs that “[t]he title and

preamble of a statute may be considered in the construction

thereof . . . [and] headings prefixed to titles, parts, articles,

chapters, sections and other divisions of a statute shall not be

considered to control but may be used to aid in the construction

thereof.” 1 Pa. Cons. Stat. § 1924. The Public School Code

provides that, for certain districts, including Jim Thorpe, “the

school directors shall effect a permanent organization by

electing, during the first week of December, from their

members, a president and vice-president, each to serve for one

year[.]” 24 Pa. Stat. Ann. § 4-404. The parties do not dispute

that Jim Thorpe is governed by § 4-404 based on its population

size. See 24 Pa. Stat. Ann. § 2-202.

8

rejected that reasoning. It held instead that the legislature

could “place conditions or limitations on the appointing

power’s authority … [s]o long as the statutory limitations

concern matters bearing on the officers’ ‘behaving themselves

well while in office[.]’” Id. at 1163. Accordingly, the statute

at issue in that case – which allowed a school board to fire a

school superintendent only for misbehavior and after a hearing

– was constitutional. Id.; see 24 Pa. Cons. Stat. § 10-1080.

The District Court here rightly applied that same logic

in assessing the validity of § 5-514. That section limits the

firing of school board officers to circumstances involving

“incompetency, intemperance, neglect of duty, violation of any

of the school laws of this Commonwealth, or other improper

conduct[,]” all of which are matters “bearing on the officers’

‘behaving themselves well while in office[.]’”3 Burger, 923

3

In their opening brief, Defendants argue that a school

board president is unpaid and has little power, implying there

can be no property interest in the position. They do not cite

any case or explain why that ought to change the analysis.

Thus, the issue is forfeited. Barna v. Bd. of Sch. Dirs. of

Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017)

(“[W]e have consistently refused to consider ill-developed

arguments or those not properly raised and discussed in the

appellate briefing.”). Even if we were inclined to take up their

undeveloped argument, it is not obvious that they would

prevail. At the District Court, they cited Versarge v. Township

of Clinton, which held that a volunteer firefighter did not have

a property interest in the de minimis benefits he received from

his position. 984 F.2d 1359, 1370 (3d Cir. 1993). But, unlike

school board presidents in Pennsylvania, volunteer firefighters

do not have a “substantive” state-granted right to their jobs, or

9

A.2d at 1163. Thus, as instructed in Burger, § 5-514 is

constitutional. See id.; see also Knox v. Bd. of Sch. Dirs. of

Susquenita Sch. Dist., 888 A.2d 640, 648 (Pa. 2005) (“Section

5-514 offer[s] a measure of job protection to school ‘officers,

employees, [and] appointees,’ setting forth the grounds for

removal and the right to notice and a hearing.”); cf. Coleman

v. Bd. of Ed. of Sch. Dist. of Phila., 383 A.2d 1275, 1280 (Pa.

1978) (holding that § 5-514 “established a clear legal right to

reinstatement” for public school employee who was fired

without a hearing). That, in turn, means that Montemuro had

a protectible property interest in his job as School Board

President because, under § 5-514, he could only be fired for

cause.4

at least we have not received any authority or evidence

indicating that they do. See Thornton v. Barnes, 890 F.2d

1380, 1388 n.9 (7th Cir. 1989) (“[T]he totality of

circumstances surrounding that grant of tenure makes it clear

that, despite the lack of remuneration, state law gives the

incumbents the right to remain in office. Thus, our analysis is

grounded on the ‘substance’ of the plaintiffs’ rights, which is

found in state law.”).

4

For the first time at oral argument, Defendants argued

that elected public officials do not have a protectible property

interest in their jobs. Leaving aside that Montemuro was not

elected by the public but by his fellow Board members, the

Defendants’ late-breaking argument was not raised in any

briefing and, consequently, is forfeited. See Barna, 877 F.3d

at 146 (we do not reach an appellant’s theory “raised for the

first time … at oral argument”).

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2. Montemuro was not afforded due process.

“In procedural due process claims, the deprivation by

state action of a constitutionally protected interest in ‘life,

liberty, or property’ is not in itself unconstitutional; what is

unconstitutional is the deprivation of such an interest without

due process of law.” Zinermon v. Burch, 494 U.S. 113, 125

(1990). The United States Supreme Court has “described ‘the

root requirement’ of the Due Process Clause as being ‘that an

individual be given an opportunity for a hearing before he is

deprived of any significant property interest.’” Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting

Boddie v. Connecticut, 401 U.S. 371, 379 (1971)). “This

principle requires ‘some kind of a hearing’ prior to the

discharge of an employee who has a constitutionally protected

property interest in his employment.” Id. (quoting Board of

Regents v. Roth, 408 U.S. 564, 569-70 (1972)).

At this stage in the proceedings, we accept as true all

factual allegations of the complaint. Thompson, 44 F.4th at

194. Montemuro claims he was not provided due notice or a

hearing before the Board elected another president a week after

his own election. So, the first qualified immunity prong is

satisfied: Montemuro has adequately alleged that the Board

violated his property right by removing him from office

without a hearing.

B. Montemuro’s right was clearly established.

A right is clearly established if the case law at the time

of the alleged violation of the right would have put government

officials on fair notice that their conduct violated the plaintiff’s

rights. Starnes v. Butler Cnty. Ct. of Common Pleas, 971 F.3d

11

416, 426 (3d Cir. 2020). “We do not require a case directly on

point, but existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). The extant case law must be derived

from established Supreme Court and Third Circuit precedent,

Jefferson v. Lias, 21 F.4th 74, 81 (3d Cir. 2021), or “state law

and rules” and their interpretation by the highest court in that

state when determining the contours of a state-granted right,

Thompson, 44 F.4th at 194; Brown v. Muhlenberg Twp., 269

F.3d 205, 211 (3d Cir. 2001) (looking to a Pennsylvania statute

to determine whether a pet dog is property protected by the

Fourth Amendment); cf. Singh v. Att’y Gen., 839 F.3d 273, 284

n.5 (3d Cir. 2016) (“[I]n matters of state substantive law, we

look to how the highest court of that state – here, the Supreme

Court of Pennsylvania – would decide the relevant legal

issues.” (internal quotation marks omitted)).

Three propositions are controlling here: first, employees

who can only be removed for cause have a property interest in

their employment; second, school board presidents in

Pennsylvania can only be dismissed for cause; and third,

employees with a property interest in their employment cannot

be fired without notice and a hearing. We believe that, under

existing precedent, all three were indeed clearly established.

The first point may be the easiest. Supreme Court and

Third Circuit precedent clearly establish that a public

employee has a property interest in his job if he can only be

terminated for cause. Loudermill, 470 U.S. at 538 (civil

service employees “possessed property rights in continued

employment” because they could not be dismissed except for

cause); Dee v. Borough of Dunmore, 549 F.3d 225, 230-31 (3rd

Cir. 2008) (fireman had property interest in employment

12

because he could not be fired without cause); Smith v. Borough

of Dunmore, 633 F.3d 176, 180 (3d Cir. 2011) (same); Schmidt

v. Creedon, 639 F.3d 587, 595 (3d Cir. 2011) (same for state

capitol police officer); Mancini v. Northampton Cnty., 836

F.3d 308, 315 (3d Cir. 2016) (career service employee “had a

protected property interest in her job” because she could only

be fired for cause).

Turning to the second point, we look to “state law and

rules” to determine whether a particular classification of

employee can be fired only for cause. Thompson, 44 F.4th at

194. Pennsylvania law clearly establishes that school board

presidents can be fired only for cause. Pa. Const. art. VI, § 7

(appointed civil officers can only be fired for cause); 24 Pa.

Stat. Ann. § 5-514 (school board officers can only be fired for

cause); Burger, 923 A.2d at 1162-63 (laws limiting removal of

public employees to circumstances involving bad behavior do

not violate Article VI, § 7, of the Pennsylvania Constitution).

The Defendants argue that the two Pennsylvania Supreme

Court cases we have just discussed, Buell, 150 A.2d 852, and

Burger, 923 A.2d 1155, are in conflict, so Montemuro’s

property right was still up for debate and not clearly

established. Not so – Burger settled the matter. It explicitly

addresses Buell and cabins it to its facts. Burger, 923 A.2d at

1164 n.10 (explaining that Buell was limited to treasurers and

secretaries, and if not, that Burger was based upon different

precedent). In fact, Burger’s dissent relies upon Buell to argue

that the provision in question was unconstitutional, id. at 1168

(Eakin, J., dissenting), so the Burger majority plainly did not

consider Buell to have the weight the Defendants think it has.

Burger is the controlling precedent, and it is quite plain in its

holding.

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Finally, it is clearly established that employees with a

statutory right in their employment cannot be fired without

notice and a hearing. Loudermill, 470 U.S. at 542. For all of

those reasons, a reasonable school board member would have

known that ousting Montemuro without notice or a hearing

would violate his right to due process. So, the Board does not

receive qualified immunity.

C. We may consider § 5-514 even though

Montemuro did not brief it on appeal.

We have relied here on § 5-514 of Pennsylvania’s

Public School Code, even though Montemuro did not mention

it on appeal. A word of explanation is therefore in order.

While he did not direct us to § 5-514 in his briefing, which

would have been helpful, Montemuro did raise and rely on it

before the District Court, and that Court in turn relied upon it

in its decision. “[W]e may affirm on any ground supported by

the record as long as the appellee did not waive – as opposed

to forfeit – the issue.” TD Bank N.A. v. Hill, 928 F.3d 259, 276

n.9 (3d Cir. 2019).

“Waiver is different from forfeiture. Whereas forfeiture

is the failure to make the timely assertion of a right, waiver is

the ‘intentional relinquishment or abandonment of a known

right.’” United States v. Olano, 507 U.S. 725, 733 (1993)

(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

Montemuro did not waive reliance on § 5-514. He briefed it at

the District Court and urged us to follow it in a post-argument

14

letter. But he did technically forfeit any argument from it by

failing to mention it in his answering brief.5

That, however, does not mean we cannot consider it on

this record. On appeal, forfeiture has greater consequences for

appellants than for appellees. Cf. Eichorn v. AT&T Corp., 484

F.3d 644, 657-58 (3d Cir. 2007) (holding that on remand,

appellees, but not appellants, can raise issues they did not raise

during the first appeal). And that makes good sense. An

appellant challenges the district court’s judgment, so he bears

the burden of demonstrating the alleged error. See Fed. R.

App. P. 28(a)(8) (appellant’s opening brief must set forth and

address each argument the appellant wishes to pursue in an

appeal). Thus, “the appellant normally has abandoned” an

unraised issue “on appeal[,] and it need not be addressed by the

court of appeals.” Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d

Cir. 1993). But “the appellee is only interested in maintaining

the status quo, i.e., an affirmance.” Hernandez v. Starbuck, 69

F.3d 1089, 1093 (10th Cir. 1995).

So, an appellee is not strictly required to file a brief. By

failing to do so, the appellee loses the right to oral argument,

unless the court grants permission. See Fed. R. App. P. 31(c);

5

While we generally will only reach forfeited issues in

civil cases in “exceptional circumstances,” we are “less

reluctant to bar consideration” of such issues when they

involve a pure question of law or the district court has relied

on them in its reasoning, so that there can be no “unfair

surprise” to the defendants in addressing the issue. See Barna,

877 F.3d at 146-77.

15

cf. Torisky v. Schweiker, 446 F.3d 438, 442 (3d Cir. 2006)

(“[Appellants] are entitled to pursue their appeal, however, and

we are required to proceed without the benefit of an appellee’s

brief.”).6 But we can affirm a district court’s opinion if we

believe it sound, even when “an appellee fails to defend [it]

adequately[.]” Hernandez, 69 F.3d at 1094. Failing to do so

“would open the door to a perverse jurisprudence by which

properly decided district court decisions could be reversed.”

Id.; see also Kennedy v. City of Villa Hills, 635 F.3d 210, 214

n.2 (6th Cir. 2011) (“This court … cannot be forced to reverse

the district court due merely to the appellees’ failure to respond

to the appellant’s arguments.” (cleaned up)).

Thus, because Montemuro, as appellee, raised § 5-514

before the District Court, and that statute informed the District

Court’s decision, we too can take account of it on appeal.

III. CONCLUSION

For the foregoing reasons, we will affirm the order of

the District Court.

6

Appellees also risk conceding “any objections not

obvious to the court to specific points urged by the

[appellant].” Beazer E., Inc. v. Mead Corp., 412 F.3d 429, 437

n.11 (3d Cir. 2005) (alteration in original).

16