Municipal Revenue Services, Inc. v. JOHN P. MCBLAIN, Individually

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3734
MUNICIPAL REVENUE SERVICES, INC.,
Appellant
v.
JOHN P. MCBLAIN,
Individually and in his official capacity
as Vice President of Aldan Borough;
ALDAN BOROUGH
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 06-cv-04749)
District Judge: Honorable Jan E. DuBois
Submitted Under Third Circuit LAR 34.1(a)
September 25, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges
(Opinion Filed: October 6, 2009)
OPINION
BARRY, Circuit Judge
Plaintiff Municipal Revenue Services, Inc. (“MRS”), a Pennsylvania corporation

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that facilitates the purchase of delinquent municipal tax liens, appeals from the District
Court’s grant of summary judgment in favor of Defendants John McBlain and Aldan
Borough in this 42 U.S.C. § 1983 action. MRS also appeals from the Court’s partial grant
of Defendants’ motion to dismiss.
At issue is whether MRS was deprived of “rights, privileges, or immunities
secured by the Constitution and laws of the United States,” 42 U.S.C. § 1983, when
McBlain, the Vice President of the Aldan Borough Council, called MRS’s business model
“loan sharking with attorneys’ fees” at a local school board meeting. Because, absent
exceptional circumstances not present here, we do “not . . . view defamatory acts as
constitutional violations,” Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396,
401 (3d Cir. 2000), we will affirm.
I. Background
The William Penn School District (“District”) is a regional public school district
located in Delaware County, Pennsylvania, comprised of six boroughs – Aldan, Colwyn,
Darby, East Landsdowne, Landsdowne, and Yeadon. In early 2005, the District began
exploring the possibility of selling its delinquent tax liens to generate additional revenue.
According to the District’s chief operating officer, Joseph Otto, about twelve percent of
the District’s residents do not pay their property taxes in a timely fashion, creating a
yearly revenue shortfall of approximately three million dollars.
With the encouragement of at least one member of the nine-member William Penn
School Board (“Board”), Otto invited three companies to give public presentations to the

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1 The primary attraction of the potential delinquent tax lien sale was the prospect of an
up-front payment. MRS proposed to pay the District ninety percent of the value of
delinquent tax liens that had been outstanding for four years or less in one lump-sum.
Xspand, by contrast, “would purchase the delinquent [tax liens only] after [it] performed a
comprehensive review of all outstanding delinquent properties,” and its initial review
indicated that its up-front payment would be calculated only on the basis of liens that had
been outstanding for three years or less. (Id. at 785.)
Portnoff was interested only in the prospective collection of delinquent tax liens.
Accordingly, the firm did not offer an up-front payment, and its proposal was not
seriously considered.
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Board promoting their respective delinquent tax lien collection services. On July 14,
2005, MRS, Xspand, and the Portnoff Law Associates promoted their collection models,
and, ultimately, Otto recommended MRS to the Board. In a memo dated October 13,
2005, Otto praised MRS’s approach as “much simpler” in that it would “not change the
way the school district collects the delinquent taxes” and would allow the District to
continue to “receive all taxes, interest, and penalties collected” less five percent in fees.
(App. at 786.) 1
At approximately the same time, in Delaware County, the City of Chester and the
Chester Upland School District were finalizing a delinquent tax lien sale with Xspand.
McBlain, who also served as the Delaware County solicitor, was tangentially involved in
that sale, and was responsible for reviewing the terms of the sale for its potential impact
on the Delaware County Tax Claim Bureau and its tax collection efforts. (Id. at 1476.) In
that role, he issued an opinion letter endorsing the sale. Despite that endorsement,
McBlain expressed his general opposition to delinquent tax lien sales to Linda Cartisano,
who was the solicitor for the City of Chester.

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McBlain, who wears a number of hats in Delaware County – serving, in addition to
his other roles, as solicitor for the Delaware County Redevelopment Authority, the
Delaware County Economic Development Oversight Board, and various local zoning
boards – is also involved in local politics. He is the chairman of the Republicans for
Aldan and the treasurer of the Delaware County Republican Executive Committee. In yet
another role, he represented the Delaware County Board of Elections in a dispute
regarding Charlotte Hummel, a Democratic candidate for re-election to the Board from
Lansdowne. The dispute reached the Supreme Court of Pennsylvania, where Hummel
ultimately prevailed on October 14, 2005. The relief granted allowed Hummel to reclaim
her seat on the Board.
Hummel’s election dispute involved Raymond Santarelli, a lawyer at the firm of
Elliot, Greenleaf & Siedzikowski, P.C. (“EGS”), who filed an amicus brief for the
Delaware County Democratic Party in support of Hummel. EGS also specializes in the
transactional legal work involved in the sale of municipal tax liens. In fact, MRS
recommends the firm’s services to municipalities that require a special counsel for the
intricacies of the sale. In MRS’s view, “there is only one firm [– EGS –] that made the
investment . . . to be qualified to do” delinquent tax lien work. (Id. at 1067). In each
delinquent tax lien sale involving MRS, EGS has been hired as the municipality’s special
counsel. Here, the parties agree that EGS stood to earn fees from an agreement between

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2 EGS represents MRS in the present case.
3 On the same day, the City of Chester and the Chester Upland School District’s
delinquent tax lien sale agreement was finalized with Xspand. MRS contends, but the
record does not establish, that Xspand is financially allied with McBlain’s partisan
interests.
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MRS and the District.2
On October 24, 2005, the Board was set to vote on a “move forward resolution”
regarding the delinquent tax lien sale, which stated that the Board “accept[ed] the
recommendation of the administration [of the District] to sell all of . . . [its] past real
estate tax liens . . . to . . . MRS[],” and authorized the administration to take the necessary
steps “to undertake the sale.” (Id. at 1590.) Otto, the Board members, and Howell
(MRS’s founder) all viewed the resolution as a step toward further negotiation with MRS,
rather than an approval of the sale itself. (See, e.g., id. at 969 (Otto stating that the
resolution was simply the next step in “evaluat[ing] the [MRS] proposal”); id. at 1079
(Howell describing it as “preliminary to a final approval”); id. at 1323 (Board member
stating that “basically all the move forward resolution was meant to do was to tell the
administration . . . to start negotiating with [MRS].”).) Several days prior to the Board
meeting, McBlain heard about what he believed to be the advanced state of the District’s
negotiations with MRS.
Consequently, McBlain attended the October 24 Board meeting to express his
opposition to the delinquent tax lien sale.3 He did so – as the parties agree – in his
capacity as the Aldan Borough Council’s liaison to the Board. He voiced his concerns

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with the MRS deal generally, and the move forward resolution specifically, at the public
“pre-session” to the Board meeting. Then, at the meeting, McBlain rose to speak during
the time allotted for public comment. He stated, in relevant part:
I want to speak to you about . . . a proposed resolution . . . to move
forward to sell certain tax claims. I ask you to vote against this proposed
resolution tonight. This is nothing more than loan sharking with attorneys’
fees, that’s all it is . . . .
Before moving forward, I would also ask the [B]oard to tell us what
are the attorneys’ fees, how many attorneys will be representing the . . .
District and . . . what other attorneys will be getting paid as a result of this,
and who are those attorneys?
* * *
You know once you get into [the structure of the deal and the fees
included], now you’re talking loan sharking money. Loan sharking with
attorneys’ fees is all this is.
(Id. at 831-32.) Board president John McKelligot heard McBlain’s comments, “sort of
perked up, and . . . thought, oh, another night of vigorous public comment in the William
Penn School District.” (Id. at 1286.) Board member Diane Leahan had a different
reaction, rising to respond to McBlain and stating: “[T]o turn around and call this
company a loan shark is, in my opinion, trouncing on slander, and I think it’s a disgrace.”
(Id. at 1283.)
McBlain’s comments had no discernable effect on the “move forward” resolution
vote, which took place later in the meeting. Seven Board members voted in favor of the
resolution, including Robert Reardon who was Aldan Borough’s representative on the
Board. Only McKelligot voted against the resolution, and his undisputed deposition

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4 Board member Dorothy Reed was absent. (App. at 1613.)
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testimony indicates that he opposed selling delinquent tax liens from the outset.4
Despite the Board’s approval of the resolution, the business relationship between
MRS and the District did not “move forward.” Otto was unresponsive to MRS’s
continuing efforts to consummate the delinquent tax lien sale. In his words, the costs of
the deal turned out to be “double . . . what [he] thought they were,” (id. at 975), and the
District’s administration lost interest. Another Board member, by contrast, simply
“assumed that somebody had basically pulled the plug on something.” (Id. at 1397.) To
date, the District has not entered into a delinquent tax lien sale agreement with MRS or
any of its competitors.
MRS filed this action, alleging that McBlain’s comments and the subsequent loss
of business constituted impermissible retaliation for protected First Amendment activity;
that the treatment it received relative to its competitors violated equal protection; that the
reputation and property damages it suffered ran afoul of substantive and procedural due
process protections; and that McBlain’s comments amounted to commercial
disparagement under Pennsylvania law. MRS also sought to recover against Aldan
Borough, asserting a Monell v. Department of Social Services, 436 U.S. 658 (1978), claim
that the Borough fostered a customary disregard of constitutional rights. The District
Court partially granted Defendants’ Federal Rule of Civil Procedure 12(b)(6) motion,
dismissing the substantive and procedural due process counts. The Court subsequently

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granted Defendants’ motion for summary judgment on the First Amendment retaliation,
equal protection, and Monell counts, and dismissed MRS’s state claim without prejudice.
On appeal, MRS contends that summary judgment was improperly granted
because the District Court’s analysis involved several errors of law. It also contends that
it adequately pled both procedural and substantive due process violations.
II. Discussion
We have jurisdiction over a final order of the District Court pursuant to 28 U.S.C.
§ 1291, and “[o]ur standard of review of a grant of summary judgment is plenary.”
Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir. 2008); see McTernan
v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (“we review the facts in the light most
favorable to the nonmoving party”). We similarly “exercise plenary review of the District
Court’s order granting defendant’s motion to dismiss.” Fellner v. Tri-Union Seafoods,
L.L.C., 539 F.3d 237, 242 (3d Cir. 2008).
A. Qualified Immunity
McBlain contends that he is shielded from liability by qualified immunity, and it is
through that prism that we will address the merits of MRS’s arguments. “The doctrine of
qualified immunity protects government officials ‘from liability for civil damages insofar
as their conduct does not violate clearly established . . . constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan, — U.S. —, 129 S.Ct. 808,
815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It reflects the
“need to hold public officials accountable when they exercise power irresponsibly and the

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5 We need not address whether a corporation, like MRS, is entitled to the same
protection as a private individual against First Amendment retaliation, as the parties have
not briefed the issue and it does not affect our holding. We note, however, that there is no
doubt that MRS may assert constitutional claims on its own behalf. See, e.g., Addiction
Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 407 n. 6 (3d Cir. 2005) (collecting
cases).
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need to shield officials from harassment, distraction, and liability when they perform their
duties reasonably.” Id. In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court
mandated a two-step qualified immunity analysis – first, whether “the facts alleged show
that the [official’s] conduct violated a constitutional right,” and, second, whether the
right, if violated, “was clearly established.” In Pearson, the Court backed away from the
previously-mandated sequence, stating, “while the sequence set forth [in Saucier] is often
appropriate, it should no longer be regarded as mandatory.” 129 S.Ct. at 818. We
nonetheless begin by determining whether, given the facts in the record, MRS can
establish a constitutional violation. Because it cannot, we need not proceed further.
B. First Amendment Retaliation
A public official “may not deny a benefit to a person on a basis that infringes his
constitutionally protected . . . interest in freedom of speech.” Perry v. Sindermann, 408
U.S. 593, 597 (1972). Otherwise, the official could indirectly “penalize and inhibit[]” the
exercise of “constitutionally protected speech,” a result which he “could not command
directly.” Id. (quotation marks and citation omitted). MRS contends that, in retaliation
for its indirect association with the politically-active EGS law firm, McBlain used his
local government post to disparage its business.5

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“In general, constitutional retaliation claims are analyzed under a three-part test.
Plaintiff must prove (1) that [it] engaged in constitutionally-protected activity; (2) that the
government responded with retaliation; and (3) that the protected activity caused the
retaliation.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir. 2004). The
threshold requirement, then, is that MRS must “identify the protected activity that
allegedly spurred the retaliation.” Id. We question whether it has done so, as the
protected activity to which MRS points is its “association with . . . an attorney for the
Democratic party.” (Appellants’ Br. at 32.) The parties do not address whether a
business that recommends the services of a politically-active law firm has engaged in
protected conduct, and the matter was likewise unaddressed by the District Court.
Instead, the District Court focused on whether MRS was retaliated against, and
concluded that it was not. The Court construed MRS’s claim as if it were “a claim
against the [Board] because MRS argues that . . . McBlain wielded such influence over
the [Board] that his criticizing MRS effectively” ended its chances of landing the
delinquent tax lien sale contract. (App. at 17 n.8.) Thus, the Court held that even if
McBlain “stymied [MRS’s] effort to contract with the [District] for impermissible
political reasons,” his actions would not constitute retaliation because MRS did not have
“a pre-existing business relationship with the [District].” (Id. at 17.) See Bd. of County
Comm’rs, Wabaunsee County v. Umbehr, 518 U.S. 668, 685-86 (1996) (“recogniz[ing]
the right of independent government contractors not to be terminated for exercising their
First Amendment rights” but expressly not addressing “the possibility of suits by bidders

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or applicants for new government contracts who cannot rely on” a “pre-existing
commercial relationship with the government”); McClintock v. Eichelberger, 169 F.3d
812, 817 (3rd Cir. 1999) (declining, in dicta, to extend Umbehr to allegations of
retaliation absent a “pre-existing commercial relationship with the public entity”).
MRS contends that the “retaliatory action was the attack by McBlain” at the
October 24 Board meeting, “not the [Board’s] failure to award a contract,” and that this
distinction allows it to establish a claim of retaliation. (Appellant’s Br. at 33.) Its
contention fails. To amount to retaliation, the conduct must be “sufficient to deter a
person of ordinary firmness from exercising his First Amendment rights.” McKee v.
Hart, 436 F.3d 165, 170 (3d Cir. 2006) (quotation marks and citation omitted). In certain
circumstances, such as those of public employees, that threshold is quite low. See, e.g.,
O’Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006) (“A First Amendment
retaliation claim will lie for any individual act which meets this ‘deterrence threshold,’
and that threshold is very low: as we [have stated] . . . a cause of action is supplied by all
but truly de minimis violations”) (citation omitted); Suppan v. Dadonna, 203 F.3d 228,
235 (3d Cir. 2000) (holding that “a campaign of petty harassments” against a public
employee is sufficient to establish retaliation) (quotation marks and citation omitted).
Where, however, the alleged retaliatory act is a speech by a public official on a matter of
public concern, other considerations are in play. See Suarez Corp. Indus. v. McGraw, 202
F.3d 676, 687 (4th Cir. 2000); see also McKee, 436 F.3d at 170 (favorably citing Suarez).
“Not only is there an interest in having public officials fulfill their duties, a public

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official’s own First Amendment speech rights are implicated.” Suarez, 202 F.3d at 687;
see X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d Cir. 1999) (stating that the First
Amendment “protect[s] the legislator’s right to state publicly his criticism of the granting
of . . . a contract to a given entity and to urge the administrators that such an award would
contravene public policy”); Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1016 (D.C.
Cir. 1991) (“If the First Amendment were thought to be violated any time a private
citizen’s speech or writings were criticized by a government official, those officials might
be virtually immobilized.”). Similarly stated, a “limitation on the retaliation cause of
action based on [a public official’s] speech is necessary to balance the [official’s] speech
interests with the plaintiff’s speech interests.” The Baltimore Sun Co. v. Ehrlich, 437
F.3d 410, 417 (4th Cir. 2006).
“Thus, where a public official’s alleged retaliation is in the nature of speech, in the
absence of a threat, coercion, or intimidation intimating that punishment, sanction or
adverse regulatory action will imminently follow, such speech does not adversely affect a
[company’s] First Amendment rights, even if defamatory.” Suarez, 202 F.3d at 687
(emphasis added). Here, while MRS alleges that McBlain “exerted ‘pressure’ on the
decisionmakers, there is no allegation that such ‘pressure’ took the form of anything other
than speech.” X-Men Sec., 196 F.3d at 71. Perhaps McBlain over-spoke in expressing his
opposition to the delinquent tax lien sale by equating MRS with a loan shark. His words,
however, were “obviously used here in a loose, figurative sense, to demonstrate . . .
strong disagreement,” Old Dominion Branch No. 496, National Association of Letter

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Carriers v. Austin, 418 U.S. 264, 284 (1974), and were part and parcel of what we have
described as the “often treacherous waters of government contracting.” Boyanowski, 215
F.3d at 404; cf. Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (“even the
most careless [listener] must have perceived that the [expression] was no more than
rhetorical hyperbole”). Even assuming MRS can establish protected First Amendment
activity, that activity is not a shield against criticism from public officials unless the
criticism strays into “threats, intimidation or coercion.” See X-Men Sec., 196 F.3d at 71.
McBlain’s comments did not reach that level, and they cannot form the basis of a First
Amendment retaliation action.
C. Equal Protection
MRS also asserts that the District Court erred in granting summary judgment in
favor of McBlain on its “class of one” equal protection claim. To recover, MRS must, “at
the very least,” establish “that (1) the defendant treated [it] differently from others
similarly situated, (2) the defendant did so intentionally, and (3) there was no rational
basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239
(3d Cir. 2006). “Persons are similarly situated under the Equal Protection Clause when
they are alike in all relevant aspects.” Startzell v. City of Phila., 533 F.3d 183, 203 (3d
Cir. 2008) (quotation marks and citation omitted); see Safeguard Mut. Ins. Co. v. Miller,
472 F.2d 732, 733 (3d Cir. 1973) (corporations are “deemed to be persons within the
meaning of the [E]qual [P]rotection and [D]ue [P]rocess [C]lauses of the [F]ourteenth
[A]mendment”). In MRS’s view, it was similarly situated to Xspand, a delinquent tax

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lien purchasing company that was treated differently by McBlain.
We note that on October 24, 2005, the Board was only voting on whether to “move
forward” with a delinquent tax lien sale proposal put forth by MRS. Because Xspand did
not have a proposal before the Board, McBlain’s failure to speak out against Xspand’s
business model cannot be considered unequal treatment. MRS also asserts that
McBlain’s approval of the City of Chester and Chester Upland School District delinquent
tax lien sale constituted unequal treatment. The District Court properly concluded
otherwise, explaining, first, that “there is no evidence that . . . McBlain personally
supported the Chester/Xspand agreement or that he took any action, beyond what was
required of him as solicitor of Delaware County to advance the transaction.” (App. at
13.) Second, the Court accurately described why MRS’s dealings with the Board and
Xspand’s dealings with Chester were not “alike in all relevant aspects”:
McBlain was neither the elected representative nor attorney for any party with a
stake in the success of the Chester/Xspand agreement. In contrast, the [Board]
resolution directly impacted . . . McBlain’s constituents on a budgetary matter of
concern to him as [an] elected official. Accordingly . . . McBlain’s treatment of
Xspand in the Chester transaction cannot be compared to his treatment of MRS’
proposal to the [Board] . . . .
(Id. at 13.)
D. Procedural & Substantive Due Process
The District Court’s dismissal of MRS’s substantive and procedural due process
claims was likewise proper, as MRS did not allege a protected interest. “To state a claim
under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that

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(1) he was deprived of an individual interest that is encompassed within the Fourteenth
Amendment’s protection of ‘life, liberty, or property,’ and (2) the procedures available to
him did not provide ‘due process of law.’” Hill, 455 F.3d at 233-34 (citation omitted) .
MRS argues that McBlain’s actions deprived it of its “constitutionally protected
[property] right to continued business.” (Appellant’s Br. at 48.) It is, however, quite
clear that the possibility of a future contract with a municipality is not a property interest
that warrants procedural due process protection. See Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 577 (1972) (“To have a property interest in a benefit, a person clearly
must have more than an abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to
it.”); Indep. Enter. Inc. v. Pittsburgh Water & Sewer Auth., Inc., 103 F.3d 1165, 1178 (3d
Cir. 1997) (“[O]ne who bids on a public contract has no legitimate expectation of
receiving it until the contract is actually awarded.”). MRS also cannot establish a
protected liberty interest, as “[b]y now, it is clear that reputation alone is not an interest
protected by the Due Process Clause.” Dee v. Borough of Dunmore, 549 F.3d 225, 234-
35 (3d Cir. 2008) (emphasis in original) (quotation marks and citations omitted). Instead,
“to make out a due process claim for deprivation of a liberty interest in reputation, a
plaintiff must show a stigma to his reputation plus deprivation of some additional right or
interest,” id. (emphasis in original) (quotation marks and citations omitted), and the loss
of a business opportunity is insufficient to establish the latter “plus” requirement. See
Sturm v. Clark, 835 F.2d 1009, 1012-13 (3d Cir. 1987) (“[F]inancial harm resulting from

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government defamation alone is insufficient to transform a reputation interest into a
liberty interest” because “[m]ost, if not all, charges of defamation are inevitably
accompanied by financial loss.”).
Nor can MRS establish a fundamental property or liberty interest worthy of
substantive due process protection. See Nicholas v. Penn. State Univ., 227 F.3d 133, 142
(3d Cir. 2000). The ability to compete for municipal contracts is not a fundamental
property interest, Independent Enterprises, 103 F.3d at 1180, and “defamatory statements
that curtail a plaintiff’s business opportunities [do not] suffice to support a substantive
due process claim.” Boyanowski, 215 F.3d at 400. Thus, even if we were to accept for
the sake of argument that McBlaine’s remarks were defamatory, MRS’s due process
arguments fail.
E. Monell
Finally, the District Court properly concluded that there is no genuine issue of
material fact as to whether MRS can establish that “through its deliberate conduct, [Aldan
Borough] was the ‘moving force’ behind the [constitutional] injur[ies] alleged.” Bd. of
County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997) (emphasis in
original). “For § 1983 liability to attach, [MRS] must show that the [Borough] was
responsible for any constitutional violations.” Startzell, 533 F.3d at 405; see id. (“[F]or
there to be municipal liability, there . . . must be a violation of [MRS’s] constitutional
rights.”) (quotation marks and citations omitted). Because MRS’s rights were not
violated, we need not further address the claim against Aldan Borough – “[i]t too was

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6 MRS also contends that its discovery of McBlain’s telephone records was improperly
limted to three months before and three months after the October 24 Board meeting. We
note that “questions concerning the scope of discovery are among those matters which
should be almost exclusively committed to the sound discretion of the [D]istrict [C]ourt,
and we see no reason to disturb the [C]ourt’s discovery ruling here.” Mothan v. Temple
Univ., 778 F.2d 955, 958 (3d Cir. 1985) (quotation marks and citations omitted).
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properly dismissed.” Id.6
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s orders of March 20,
2007, and August 4, 2008, which, taken together, dispose of MRS’s claims against
McBlain and Aldan Borough.

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