NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No

. 0 8

- 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; ROBER T 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. 0 8

- 4428

_____________
CHARLES J. GUARNIERI, JR ., Appellant v.
DURYE A BOROUGH; DURYEA BOROUGH COUNCI L; ANN DOMMES, Individually and in her O fficial 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, Individually2 and in his Official Capacity a s 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 Prece dential Opinion filed February 4, 2010
Ce rtiorari 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 Pitts ton, 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 & Associates3

Scranton, P A l8503 Attorneys for Appellees in No. 08

- 4428

Appellants in No. 08

- 3949

(Filed : August 2, 201 1 )

______ OPINION

_____ SLOVITER, Circuit Judge

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

rema nded 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 G uarnieri filed a grievance challenging his termination as Chief of Police
of the Boro ugh 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
suspen sion

. Thereafter, t he 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 com pensatory and pun i tive damages which the District Court sustained. The4

Borough appealed to this court, arguing that Guarnieri‟s actions were not protected under
the Petition Clause.
B ound 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 u nder 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 2 501 (citing Connick v. Myers , 461 U.S. 138 (1983) )

. On receipt of the Supreme Court‟s opini on, w e 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 p ublic 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 pr evious panel. Court en banc consideration is required to do so.5

the Borough ask s 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, an d 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 Co urt 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 )

. W e are not prepared to hold on this meager record that the dismissal of a police chief in a small town can never be a ma tter 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 o f 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. W e 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 C ourt‟s opinion.