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
_______________
Argued
January 18, 2024

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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
_______________
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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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

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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.

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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).

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