2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-25-2011

Pocono Mt Charter Sch v. Pocono Mt Sch Dist

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-4478

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Recommended Citation

"Pocono Mt Charter Sch v. Pocono Mt Sch Dist" (2011). 2011 Decisions. Paper 636.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/636
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________ 

No. 10-4478

_____________

POCONO MOUNTAIN CHARTER SCHOOL; KINCHASA JACKSON, on her own 

behalf and on behalf of her children Y.J. and K.J.; KENYA WILLIAMSON, on her 

behalf and on behalf of her daughter L.J.; ALLAN SANABRIA, on their own behalf and 

on behalf of their daughter, K.S.; CARRIE SANABRIA, on their own behalf and on 

behalf of their daughter K.S.; KWAME BLAIZE, on his own behalf and on behalf of his 

children S.B. and L.B.; MOLLI RIVERA, on her own behalf and on behalf of her 

daughter M.R.; TIFFANY GREEN, on her own behalf and on behalf of her children N.G. 

and I.G.; SABRINA MULDONAVO-HOWARD, on her own behalf and on behalf of her 

children B.H. and J.H.; CLAIRE BRYANT, on her own behalf and on behalf of her 

children M.B. and M.B.; DIEDRA KEYS, on her own behalf and on behalf of her son 

S.G., on behalf of all others similarly situated,

 Appellants

v.

POCONO MOUNTAIN SCHOOL DISTRICT; DWIGHT PFENNING, Superintendent 

in his official and individual capacity; HENRY E. BOCKELMAN, President of the 

Board of Education, in his official and individual capacity; MEG DILGER, Members of 

the Board of Education, in their official and individual capacities; WILLIAM FORTE, 

Members of the Board of Education, in their official and individuals capacities; JOSEPH 

(RANDY) POLINSKI, Members of the Board of Education, in their official and 

individual capacities; JOHN H. DAVIS, Members of the Board of Education, in their 

official and individual capacities; ED MAYOTTE, Members of the Board of Education, 

in their official and individual capacities; DOROTHY SIROLLY, Members of the Board 

of Education, in their official and individual capacities; RICKY D. SMITH, Members of 

the Board of Education, in their official and individual capacities; MICHAEL STERN, 

Members of the Board of Education, in their official and individual capacities; JAN 

NIERLING, Former members of the Board of Education, in their individual capacities; 

LEO COLGAN, Former members of the Board of Education, in their individual 

capacities; STEPHAN SHELOSKI, Former members of the Board of Education, in their 

individual capacities; JEFFREY SNYDER, Former members of the Board of Education, 

in their individual capacities; DAVID POLLACK, Former members of the Board of 

Education, in their individual capacities; STANLEY STORM, Former members of the 

Board of Education in their individual capacities
2

 

_____________

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-10-cv-01171)

District Judge: Honorable A. Richard Caputo

_____________ 

Argued July 14, 2011

Before: RENDELL, SMITH and ROTH, Circuit Judges.

(Opinion Filed : August 25, 2011) _____________

Marshall E. Anders, Esq.

Anders & Masington

18 North 8th Street

Stroudsburg, PA 18360

Daniel M. Fennick, Esq.

Anderson, Converse & Fennick

1423 East Market Street

York, PA 17403

 Counsel for Appellant Pocono Mountain Charter School

Judith A. Gran, Esq. [ARGUED]

Reisman, Carolla & Gran

19 Chestnut Street

Haddonfield, NJ 08033

 Counsel for Appellants KINCHASA JACKSON, on her own behalf and on behalf of her 

children Y.J. and K.J.; KENYA WILLIAMSON, on her behalf and on behalf of her 

daughter L.J.; ALLAN SANABRIA, on their own behalf and on behalf of their daughter, 

K.S.; CARRIE SANABRIA, on their own behalf and on behalf of their daughter K.S.; 

KWAME BLAIZE, on his own behalf and on behalf of his children S.B. and L.B.; 

MOLLI RIVERA, on her own behalf and on behalf of her daughter M.R.; TIFFANY 

GREEN, on her own behalf and on behalf of her children N.G. and I.G.; SABRINA 

MULDONAVO-HOWARD, on her own behalf and on behalf of her children B.H. and 

J.H.; CLAIRE BRYANT, on her own behalf and on behalf of her children M.B. and 

M.B.; DIEDRA KEYS, on her own behalf and on behalf of her son S.G., on behalf of all 

others similarly situated.
3

Patrick J. Boland, III, Esq.

Thomas A. Specht, Esq.

Marshall, Dennehey, Warner, Coleman & Goggin

P.O. Box 3118

Scranton, PA 18505

John E. Freund, III, Esq. [ARGUED]

King, Spry, Herman, Freund & Faul

One West Broad Street

Suite 700

Bethlehem, PA 18018

 Counsel for Appellee Pocono Mountain School District 

_____________

OPINION OF THE COURT 

_____________

RENDELL, Circuit Judge.

This appeal comes to us from a District Court order granting defendant Pocono 

Mountain School District’s (“the School District”) Rule 12(b)(6) Motion to Dismiss. The

Pocono Mountain Charter School and several of its students and parents1

 1 For ease of reference, we will refer to the Pocono Mountain Charter School as “the 

Charter School” and to the students and parents as “the individual plaintiffs.” 

(“the Charter 

School”) sued the School District seeking injunctive relief, compensatory damages and 

punitive damages as a result of alleged violations of the United States Constitution, the 

Pennsylvania Constitution, and Title VI of the Civil Rights Act of 1964. The Charter 

School also brought a defamation claim against the District. The District Court dismissed 

all of plaintiffs’ claims. As to the Charter School’s § 1983 claims for violations of the 

First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Equal 

Protection Clause of the Fourteenth Amendment, the District Court held that all must fail 
4

because the Charter School is a political subdivision and, thus, is not entitled to relief 

under 42 U.S.C. § 1983.2

I.

 

We will affirm the District Court’s dismissal of the individual plaintiffs’ Due 

Process claim, the Charter School’s Title VI claim, and all plaintiffs’ claims for monetary 

damages under the Pennsylvania Constitution and for defamation. Because the District 

Court failed to address plaintiffs’ claims for injunctive relief under the Pennsylvania 

Constitution, we will remand for it to consider whether those claims have merit. We also 

will vacate the portion of the District Court’s order dismissing the individual students’ 

Title VI claim and direct the Court to grant the individual plaintiffs leave to amend their 

complaint regarding their Title VI claims on remand. Finally, we will vacate the Court’s 

dismissal of plaintiffs’ § 1983 claims, reverse its holding that, under the Pennsylvania 

Charter School Law, the Charter School is a political subdivision, and remand for the 

District Court to determine the Charter School’s capacity to sue under § 1983. 

In February 2003, the Pocono Mountain School District granted a charter to the

Pocono Mountain Charter School. The Charter School is publicly funded, organized and 

existing under Pennsylvania Charter School Law 24 P.S. 17-1701(A) The school has 

approximately 325 students, more than ninety percent of whom are African American, 

 2 The District Court exercised jurisdiction over this case under 28 U.S.C. § 1331 and 20 

U.S.C. § 1415(I). We have jurisdiction over this appeal of the District Court’s final order 

pursuant to 28 U.S.C. § 1291.
5

Hispanic, or a member of another minority group. The majority of the Board of Directors 

are African American and several members (including the CEO of the Charter School) 

attend Shawnee Tabernacle Church. The Charter School provides its students with an 

individualized curriculum, a high staff-to-student ratio, and small class sizes. The 

Charter School has performed well, and its students have made significant academic 

progress. By contrast, the District is one of the lowest performing school districts in 

Pennsylvania. 

Plaintiffs aver that, when the School District renewed the Charter School’s charter 

in 2006, it attached sixty-five conditions, which the Charter School had to agree to in 

order to obtain the renewal. By contrast, plaintiffs aver that Evergreen Charter School 

(“Evergreen”), which has a predominately Caucasian student body, was only required to 

agree to thirty conditions when its charter was up for renewal. The District renewed the 

Charter School’s charter in 2006 but, two years later, in May 2008, instituted charter 

revocation proceedings against the Charter School for alleged violations of the 

Pennsylvania Charter School Law. The District also filed complaints with the 

Pennsylvania Department of Education (“PA DOE”) regarding the Charter School’s 

alleged violations of the Individuals with Disabilities Education Act. However, an 

investigation by the State found the school to be in compliance with all requirements. In 

addition, the PA DOE was notified by an anonymous source that school administrators at 

the Charter School were “coaching” students on the PSSA exam. The State also found 

these allegations to be unfounded. As a result of the publicized allegations against the 

school, enrollment dropped significantly. 
6

On June 2, 2010, the Charter School and the individual plaintiffs filed a complaint 

against the School District seeking injunctive relief, compensatory damages and punitive 

damages. The Charter School claimed that the District violated: (1) Title VI of the Civil 

Rights Act of 1964 by discriminating against the Charter School on the basis of race and 

national origin; (2) the First Amendment of the U.S. Constitution by discriminating 

against the Charter School based on the religious affiliation of some of its officers; (3) the 

Due Process Clause of the Fourteenth Amendment of the U.S. Constitution by depriving 

the Charter School and its students of liberty and process without due process of the law; 

(4) the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by 

treating the Charter School differently based on the race of its students and the religious 

affiliation of some of its officers;

3

In an order issued on November 23, 2010, the District Court for the Middle 

District of Pennsylvania granted the District’s motion to dismiss all the plaintiffs’ 

allegations. The Charter School challenges the Court’s dismissal of its § 1983 First 

Amendment, Equal Protection and Due Process claims and its Title VI and defamation

(5) Article I, § 3 of the Pennsylvania Constitution by 

interfering with School officers’ right to freely worship; and (6) Article I, § VI of the 

Pennsylvania Constitution by discriminating against plaintiffs in the exercise of their civil 

rights. In addition, the Charter School brought a defamation claim against the District. 

 3 The Charter School alleged these constitutional violations under 42 U.S.C. § 1983. 
7

claims. The individual plaintiffs challenge the Court’s dismissal of its § 1983 Due 

Process claim, Title VI, and Pennsylvania Constitution claims.4

II.

 

Our review of a motion to dismiss for failure to state a claim under rule 12(b)(6) is 

de novo, and we will apply the same standard as the District Court: when considering a 

motion to dismiss for failure to state a claim, we are required to accept as true all 

allegations in the complaint and reasonable inferences that can be drawn from them after 

construing them in the light most favorable to the non-movant. Rocks v. City of 

Philadelphia, 868 F.3d 644, 645 (3d Cir. 1989).

The District Court dismissed the Charter School’s § 1983 claims for violations of 

the First Amendment, the Due Process Clause, and the Equal Protection Clause, on the 

grounds that the Charter School is a political subdivision and, thus, is not entitled to relief 

under § 1983.5

 4 We have done our best to discern from plaintiffs’ complaint and defendant’s motion to 

dismiss precisely which plaintiffs brought which claims. In dismissing plaintiffs’ claims, 

the District Court, for the most part, failed to expressly clarify which plaintiffs’ claims it 

was addressing. Only in its treatment of the Title VI claims did it distinguish between the 

Charter School and the individual plaintiffs. 

 We disagree with this ruling and therefore will reverse its dismissal of the 

5 In dismissing the Charter School’s § 1983 claims, the District Court did not address the 

individual plaintiffs’ Due Process claim, which they set forth in their complaint, alleging 

that the District violated not only the Charter School’s Due Process rights but also the 

students’ Due Process rights by depriving them of liberty and property without due 

process of the law. To the extent that the District Court’s judgment on the plaintiffs’ § 

1983 claims pertained to the individual plaintiffs’ Due Process claim (the only § 1983 

claim for which the students were also listed as plaintiffs), we affirm the Court’s 
8

Charter School’s constitutional claims and remand for further consideration in light of the 

principles set forth below. 

The Court’s reading of § 17-1714-A of the Pennsylvania Charter School Law to 

conclude that a charter school is a political subdivision is incorrect. 

Section 17-1714-A provides, in relevant part, that:

A charter school established under this act is a body corporate and shall have the 

powers necessary or desirable for carrying out its charter, including, but not 

limited to, the power to . . . [s]ue and be sued, but only to the same extent and 

upon the same condition that political subdivisions and local agencies can be sued.

24 P.S. § 17-1714-A(a)(2). According to the District Court, the language in § 17-1714-A 

stating that a charter school may “sue and be sued . . . to the same extent and upon the 

same condition that [a] political subdivision[] . . . can be sued” amounts to an “explicit 

state[ment]” that charter schools are political subdivisions that cannot bring § 1983 suits. 

This is simply incorrect. The statute merely states that a charter school can sue and be 

sued to the same extent that a political subdivision can be sued. The inclusion of “to the 

same extent and upon the same condition” makes it clear that the statute does not, as the 

District Court asserts, equate a charter school with a political subdivision. Rather, the 

statute states that, for the limited purpose of determining a charter school’s ability to be 

sued, the same circumstances under which political subdivisions and local agencies can 

be sued shall apply to charter schools. Accordingly, the District Court erred in holding 

that the Charter School is a political subdivision. 

 

dismissal, as the students do not have a cognizable liberty or property interest in going to 

a school of their choice. 
9

It is also incorrect to read § 17-1714-A(a)(2) as saying that charter schools can 

only sue to the same extent that political subdivisions can sue. The statute does not say 

this. Rather, the statute states that charter schools may sue and be sued to the same extent 

that political subdivisions can be sued. It limits only its capacity as a defendant, not as a 

plaintiff. Thus, under the terms of the statute, a political subdivision’s power to sue is not 

necessarily the barometer for determining charter schools’ power to sue.

Therefore, on remand, the District Court must determine anew whether a charter

school can bring suit under § 1983. This presents a thorny issue. The Charter School 

Law does not directly address this issue, although § 17-1714-A and other sections of the 

law should be considered in the analysis, as they describe the Charter School’s 

relationship to the state. To provide guidance to the District Court on remand, we note 

the various theories that should be examined in resolving this issue. 

It would appear that the central question is to what extent the Charter School’s 

association with and relationship to the school district—and, thus, the state6

 6 See Vill. of Arlington Heights v. Reg’l Transp. Auth. ̧653 F.2d 1149, 1153 (7th Cir. 

1981) (“[T]he principle that a municipality may not challenge acts of the state under the 

Fourteenth Amendment applies ‘whether the defendant is the state itself or another of the 

state’s political subdivisions.’” (quoting City of S. Lake Tahoe v. Cal. Tahoe Reg’l 

Planning Agency, 625 F.2d 231, 233 (9th Cir. 1980)). 

—bars it from 

suing the district. Is the School, as the defendants argued in their Motion to Dismiss, an 

agent or instrumentality of the state that lacks standing as a § 1983 person? (i.e., under 

Monell v. NYC Dept. of Social Serv., 436 U.S. 658 (1978), is the Charter School a 

“person” within the meaning of § 1983?) If the School qualifies as a § 1983 “person,” 

then is it, like a municipality, barred from bringing suit against its creator or charter-
10

grantor?7

In addressing whether the Charter School can bring a § 1983 suit against the state, 

the District Court should also consider how Williams v. Mayor & City Council, 289 U.S. 

36 (1933), and Coleman v. Miller, 307 U.S. 433, 441 (1939), which stand for the 

proposition that a municipal corporation cannot sue the state, and Washington v. Seattle 

School District No.1, 458 U.S. 457 (1982), which suggests that a school district can bring 

a § 1983 suit against the state, bear on this question. Is a Charter School sufficiently 

analogous to a municipality that it should, under the Williams and Coleman line of cases, 

be barred from suing the state? If a charter school is sufficiently analogous to a 

municipality that the Williams and Coleman line of cases preclude it from asserting a 

§ 1983 claim under the contract clause or the Fourteenth Amendment, does that rule 

extend to a cause of action alleging a violation of the First Amendment? Further, is it 

significant that the claim in Washington was for racial discrimination in violation of the 

Equal Protection Clause of the Fourteenth Amendment while the claims in Williams and

Coleman were not? How does Washington bear on the question of whether a charter 

school can sue the school district/the state? Does Washington set down a binding rule 

 In its opinion, the District Court cites several cases establishing that a “political 

subdivision may not bring a federal suit against its parent state,” but to apply this rule to 

the Charter School, it is necessary to first probe the nature of the School’s relationship to 

the state. 

 7 Under the Pennsylvania Charter School Law, the board of school directors of the local 

school district grants a charter school’s charter. See 24 P.S. § 17-1703-A. See also

Complaint at 34 (“The Pocono Mountain Charter School was established as a public 

charter school in 2003. Its initial charter was approved by the Pocono Mountain School 

District (PMSD) in that year.”). 
11

that a school district can sue the state? If so, does that rule apply to a charter school, also 

permitting it to sue the state, or is a public school district’s relationship with the state 

sufficiently distinguishable from a charter school’s relationship with the school district 

and the state so as to merit a different rule? 

The District Court should explore these issues on remand as it decides the question 

of whether, under Pennsylvania and federal law, a charter school can bring a cause of 

action under § 1983 against the school district. 

III.

The District Court properly dismissed the plaintiffs’ claims for monetary relief 

under the Pennsylvania Constitution. No Pennsylvania statute establishes, and no 

Pennsylvania court has recognized, a private cause of action for damages under the 

Pennsylvania Constitution. See Jones v. City of Phila., 890 A.2d 1188, 1208 (Pa. 

Commw. 2006) (“[N]either Pennsylvania statutory authority nor appellate case law has 

authorized the award of money damages for violation of the Pennsylvania 

Constitution.”). 

However, the District Court fails entirely to address plaintiffs’ claim for injunctive 

relief for violations of the Pennsylvania Constitution.8

 8 See Complaint at 55-56 (“[P]laintiffs respectfully request that this Honorable Court: . . . 

(c) Enjoin Defendants from continuing the discriminatory practices set forth above.”). 

 Although monetary relief is 

barred for claims under the Pennsylvania Constitution, equitable remedies are available. 

See Moeller v. Bradford County, 444 F. Supp. 2d 316, 320-21 (M.D. Pa. 2006) (“[I]t is 
12

well settled that individual plaintiffs may bring suit for injunctive relief under the 

Pennsylvania Constitution); Jones, 890 A.2d at 1216 (“[O]ther remedies, such as 

declaratory or injunctive relief . . . are . . . remedies under the Pennsylvania 

Constitution.”). On remand, the District Court must consider whether plaintiffs have 

stated a valid claim for injunctive relief under Article I, § 3 or Article I, § 26 of the 

Pennsylvania Constitution.9

IV.

 

The District Court dismissed plaintiffs’ claim that the District violated Title VI of 

the Civil Rights Act of 1964 in denying the benefits of Pennsylvania’s charter school 

program to the School and its students and in subjecting the Charter School and its 

students to discrimination on the basis of race and national origin. We affirm its 

dismissal of the Charter School’s Title VI claim. However, as to the individual plaintiffs’ 

Title VI claim, the District Court should have granted them leave to amend their 

complaint, and we direct it to do so on remand.

The Supreme Court has recognized a private right of action to enforce § 601 of the 

Civil Rights Act of 1964, which prohibits any recipient of federal financial assistance 

from discriminating against a “person” on the basis of race, color, or national origin in 

 9 Judge Smith would conclude that the Charter School’s claim for equitable relief under 

the Pennsylvania Constitution is inadequate under Laborers International Union of North 

America, AFLCIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) and has 

therefore been waived. 
13

any federally funded program.10

The plaintiffs’ complaint also alleges that the School District denied the benefits 

of the Pennsylvania charter school program on the basis of the students’ race and national 

origin by seeking to prevent the School from operating, and discriminated against the 

students on the basis of their race and national origin by treating them differently from 

students at Evergreen. The District Court dismissed these individual claims for failing to 

allege any facts showing that defendant discriminated against them. According to the 

 To state such a claim, a plaintiff must plead facts that 

establish discriminatory intent. See Alexander v. Choate, 469 U.S. 287, 293-94 (1985). 

We agree with the District Court that the Charter School’s Title VI claim must 

fail, because the Charter School does not qualify as a “person” with standing to sue for 

relief under Title VI. The language of Title VI, which refers to a person’s “race, color or 

national origin,” suggests that the private right of action Title VI creates does not reach 

entities like the Charter School. Cf. United States v. Alabama, 791 F.2d 1450, 1457 (11th 

Cir. 1986) (“Title VI provides for a comprehensive scheme of administrative 

enforcement, and the Supreme Court has implicitly recognized a private right of action 

for individuals injured by a Title VI violation. Absent any indication of Congressional 

intent to grant additional rights under this statute to non-private state subdivisions against 

the state itself, we decline to infer such a right of action by judicial fiat.”). 

 10 Section 601 of Title VI of the Civil Rights Act of 1964 provides that:

No person in the United States shall, on the ground of race, color or national 

origin, be excluded from participation in, be denied benefits of, or be subjected to 

discrimination under any program or activity receiving Federal financial 

assistance.

42 U.S.C. § 2000(d). 
14

District Court, the individual plaintiffs failed to establish that the District’s imposition of 

onerous conditions on the School’s charter renewal, as compared to the conditions it 

imposed on Evergreen, and its attempt to revoke the School’s charter based on 

unsubstantiated accusations, were targeted at the students. 

Plaintiffs’ complaint, as the District Court seems to suggest, fails to allege specific 

facts establishing harm directly or proximately caused by the School District to the 

students. It does not appear that the allegedly discriminatory conditions imposed on the 

Charter School directly discriminated against the Charter School students. Though the 

District Court did not identify it as such, the deficiency it identifies appears to be a 

standing issue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (setting 

forth the three requirements of Article III standing: (1) “the plaintiff must have suffered 

an injury in fact – an invasion of a legally protected interest which was (a) concrete and 

particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) “there 

must be a causal connection between the injury and the conduct complained of”; and (3) 

“it must be likely, as opposed to merely speculative, that the injury will be redressed by a 

favorable decision.”). However, the individual plaintiffs may be able to cure these 

deficiencies by amendment of their complaint. 

Accordingly, we will vacate the portion of the District Court’s order dismissing 

the individual students’ Title VI claim and direct the District Court on remand to grant 

the individual plaintiffs leave to amend their complaint to plead facts establishing that 
15

they, as individuals, were discriminated against on the basis of their race or national 

origin and that they suffered harm as a result of this discrimination.11

V.

 

Finally, we will affirm the District Court’s dismissal of plaintiffs’ defamation 

claims, although on somewhat different grounds. The District Court dismissed the 

Charter School’s defamation claims on two grounds – that, as a political subdivision, it 

cannot be libeled, and that plaintiffs failed to sufficiently plead defamation. 

It is not entirely clear from the complaint whether the District’s allegedly 

defamatory statements were made in the School’s official capacity or in school officials’ 

personal capacities. If the statements were made in the School’s official capacity, the 

school officials who made them are protected by high official immunity under 

Pennsylvania state law. See 42 Pa. C.S. § 8546; Zugarek v. S. Tioga Sch. Dist., 214 F. 

Supp. 2d 468, 479 (M.D. Pa. 2002); Lindner v. Mollan, 544 Pa. 487, 492 (1996). If the 

statements were made in the officials’ individual capacity, the Charter School’s claims 

are barred by the First Amendment. Even if a charter school is not a political 

subdivision, if it constitutes any kind of governmental entity, then it cannot sue for libel. 

See New York Times v. Sullivan, 376 U.S. 254, 291 (1964); City of Philadelphia v. 

 11 To the extent the District Court suggests that the individual plaintiffs must show that 

they were the direct target of the District’s discrimination, it should provide explanation 

and citation for that proposition. Other courts have upheld Title VI standing for plaintiffs 

who are not the direct targets of discrimination. See, e.g., Clemes v. Del Norte County 

Unified Sch. Dist., 843 F. Supp. 583 (N.D. Cal. 1994) (upholding standing for a white 

male teacher who alleged retaliation for his conduct in acting to protect the rights of 

Native American and female students). 
16

Washington Post Co., 482 F. Supp. 897, 898-99 (E.D. Pa. 1979) (“The City cannot 

maintain an action for libel on its own behalf. A governmental entity is incapable of 

being libeled.”). 

VI.

For the foregoing reasons, we affirm in part, and reverse and remand in part for 

further proceedings consistent with this opinion.