NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 08-3949

_____________

CHARLES J. GUARNIERI, JR., 

v.

DURYEA BOROUGH; DURYEA BOROUGH COUNCIL; 

ANN DOMMES, Individually and in her Official Capacity as

Council President; LOIS MORREALE, Individually and in her 

Official Capacity as Borough Secretary; FRANK GROBLEWSKI, 

Individually and in his Official Capacity as Councilman; 

EDWARD ORKWIS, Individually and in his Official Capacity as 

Councilman; ROBERT WEBB, Individually and in his Official Capacity

as Councilman; AUDREY YAGER, Individually and in her Official 

Capacity as Councilwoman; JOAN ORLOSKI, Individually and in her 

Official Capacity as Councilwoman; AKULONIS, Individually 

and in his Official Capacity as Councilman,

 Appellants

_____________

No. 08-4428

_____________

CHARLES J. GUARNIERI, JR., 

 Appellant

 v.

DURYEA BOROUGH; DURYEA BOROUGH COUNCIL; 

ANN DOMMES, Individually and in her Official Capacity 

as Council President; LOIS MORREALE, Individually and 

in her Official Capacity as Borough Secretary; 

FRANK GROBLEWSKI, Individually and in his Official 

Capacity as Councilman; EDWARD ORKWIS, Individually 
2

and in his Official Capacity as Councilman; ROBERT WEBB, 

Individually and in his Official Capacity as Councilman; 

AUDREY YAGER, Individually and in her Official Capacity 

as Councilwoman; JOAN ORLOSKI, Individually and in her 

Official Capacity as Councilwoman; AKULONIS, Individually

and in his Official Capacity as Councilman

_______

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-05-cv-01422)

District Judge: Honorable A. Richard Caputo

_______

Argued October 27, 2009

Not Precedential Opinion filed February 4, 2010

Certiorari granted June 20, 2011

On Remand from the Supreme Court of the United States

Before: SLOVITER, FUENTES and HARDIMAN Circuit Judges.

___________

Cynthia L. Pollick (Argued)

The Employment Law Firm

Pittston, PA 18640

Attorney for Appellant in No. 08-4428

 Appellee in No. 08-3949

Karoline Mehalchick (Argued)

Joseph A. O‟Brien

Oliver, Price & Rhodes

Clarks Summit, PA l8411

Jennifer Walsh

Ufberg & Associates
3

Scranton, PA l8503

Attorneys for Appellees in No. 08-4428

 Appellants in No. 08-3949

(Filed : August 2, 2011)

______

OPINION 

_____

SLOVITER, Circuit Judge.

The Supreme Court has vacated our opinion and judgment in this matter and 

remanded to this court. See Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488 

(2011), reversing Guarnieri v. Duryea Borough, 364 F. App‟x 749 (3d Cir. 2010). 

Charles Guarnieri filed a grievance challenging his termination as Chief of Police 

of the Borough of Duryea (“Borough”). The matter proceeded to arbitration pursuant to 

the police union‟s collective bargaining agreement. The arbitrator found, inter alia, that 

Guarnieri engaged in misconduct, but ordered his reinstatement after disciplinary 

suspension. Thereafter, the Borough Council issued eleven directives instructing 

Guarnieri in the performance of his duties, but he challenged those directives in a second 

union grievance and filed a lawsuit pursuant to 42 U.S.C. § 1983 claiming the directives 

were in retaliation for prior activity that he claimed was protected under the Petition 

Clause of the United States Constitution. Following a jury trial, the jury awarded 

Guarnieri compensatory and punitive damages which the District Court sustained. The
4

Borough appealed to this court, arguing that Guarnieri‟s actions were not protected under 

the Petition Clause. 

Bound by its prior published opinions,

1

this court rejected the Borough‟s position, 

which was contrary to our precedent holding that “a public employee who has petitioned 

the government through a formal mechanism such as the filing of a lawsuit or grievance 

is protected under the Petition Clause from retaliation for that activity, even if the petition 

concerns a matter of solely private concern.” Foraker v. Chaffinch, 501 F.3d 231, 236 

(3d Cir. 2007) (citing San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)). That 

holding has now been definitively rejected by the Supreme Court in this case where it 

held that a government employee‟s claim under the Petition Clause is subject to the 

public concern test applicable to a government employee who files a Free Speech Clause 

claim. Guarnieri, 131 S. Ct. at 2501 (citing Connick v. Myers, 461 U.S. 138 (1983)). 

On receipt of the Supreme Court‟s opinion, we asked the parties to file 

simultaneous memoranda regarding the effect of the Supreme Court‟s decision on the 

remaining issues in this case. Both parties urge this court to determine whether

Guarnieri‟s Petition Clause claims relate to a matter of public concern. In the alternative,

 

 

1

See 3d Cir. I.O.P. 9.1:

It is the tradition of this court that the holding of a panel in a 

precedential opinion is binding on subsequent panels. Thus, no 

subsequent panel overrules the holding in a precedential 

opinion of a previous panel. Court en banc consideration is 

required to do so.
5

the Borough asks this court to vacate the judgment of the District Court and to remand 

this matter to the District Court for its reconsideration in light of the Supreme Court‟s 

decision. 

As the Supreme Court stated, and the parties agree, whether something is a matter 

of public concern is a question of law for the court. See Connick, 461 U.S. at 148 n.7. In 

its supplemental memorandum the Borough notes the language in the Supreme Court‟s 

Guarnieri opinion where the Court stated that a “petition that involves nothing more than 

a complaint about a change in the employee‟s own duties does not relate to a matter of 

public concern.” Guarnieri, 131 S. Ct. at 2501 (quotations omitted). Guarnieri responds 

that his dismissal was a matter of great actual concern to the residents of Duryea, and he 

refers to newspaper reports of the dispute. The Supreme Court stated that “whether an 

employee‟s petition relates to a matter of public concern will depend on „the content, 

form, and context of [the petition], as revealed by the whole record.‟” Id. (alteration in 

original) (quoting Connick, 461 U.S. at 147-48 n.7). We are not prepared to hold on this 

meager record that the dismissal of a police chief in a small town can never be a matter of 

public concern in that community.2 It might be, for example, if the Chief were dismissed 

because he disfavored one race over another, or because he overlooked actions of a 

sexual predator. We do not suggest that there is any such issue lurking in this matter, but

 

 

2 Guarnieri has filed a motion to expand record and file supplemental 

appendix. Counsel is aware that this court is not the forum to decide questions of 

fact in the first instance. On remand, the parties may raise that issue with the 

District Court. We express no view on that motion.
6

merely note that not all dismissals of government employees would necessarily fall on 

one side or another of the rule. As the Supreme Court itself recognized, it would depend 

on the circumstances. 

This is a matter more appropriately to be decided by the District Court. We will 

therefore allow the District Court the opportunity to consider the issue in the first 

instance. 

Accordingly, we will vacate the order of the District Court and remand for 

consideration in light of the Supreme Court‟s opinion.