HomeMy WebLinkAbout12-0722FIT, .
I"i LED -OFF iC?'
Don Bailey Esquire
PAID # 23786 2012 FEB _ 6 PM 1; a 6
43 11 N. 6th Street
Harrisburg, PA CUMBERLAND
U T'i'
717-221-9500 PENNSYLVANIA
717-221-9400 Fax
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Col. (Ret.) CHARLES B. BRESLIN,
Col. (Ret.) PAUL J. CUNNINGHAM,
Col (Ret.) PHILLIP E. THOMPSON
Plaintiffs
VS.
DICKINSON TOWNSHIP,
RAYMOND JONES, DANIEL WYRICK,:
ALLYN PERKINS, LAURA PORTILLO,:
ANTHONY ZIZZI, SUSAN J. SMITH,
DUNCANNON BOROUGH and
JOHN P. MORGENSTERN
Defendants
CIVIL ACTION LAW O-Avi(
No. JURY TRIAL DEMANDED
NOTICE
You have been sued in court. If you wish to defend the claims set forth in the following
pages, you must take action within twenty (20) days after this Complaint is served, by entering a
written appearance personally or by attorney and filing in writing with the court your defenses or
objections to the claims set forth against you. You are warned that if you fail to do so the case
may proceed without you and a judgment may be entered against you by the court without
further notice for any money claimed in the petition or for any other claim or relief requested by
the plaintiffs. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
34 S. Bedford Street
Carlisle, Pa
717.249.3166
(a)
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Don Bailey Esquire
PAID # 23786
4311 N. 6th Street
Harrisburg, PA
717-221-9500
717-221-9400 Fax
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Col. (Ret.) CHARLES B. BRESLIN,
Col. (Ret.) PAUL J. CUNNINGHAM,
Col (Ret.) PHILLIP E. THOMPSON
Plaintiffs .
VS.
DICKINSON TOWNSHIP, .
RAYMOND JONES, DANIEL WYRICK,:
ALLYN PERKINS, LAURA PORTILLO,:
ANTHONY ZIZZI, SUSAN J. SMITH,
DUNCANNON BOROUGH and
JOHN P. MORGENSTERN .
Defendants .
CIVIL ACTION LAW
No.
JURY TRIAL DEMANDED
COMPLAINT
Now comes the plaintiffs by their attorney Don Bailey, Esquire, and in support of this
complaint avers as follows:
INTRODUCTORY STATEMENT
1. This is a civil rights complaint brought by three American citizens (each a retired
senior military officer) who are residents of Dickinson Township, Cumberland County,
Pennsylvania. These plaintiffs are also plaintiffs in an action docketed at 1:09-CV-1396
(hereinafter "1396") pending in the United States District Court for the Middle District of
Pennsylvania. This complaint includes a number of state tort violations including defendants'
1
collective failure to institute e-discovery and legal hold procedure in 1396 constituting an abuse
of process in addition to numerous other violations.
This complaint addresses a number of violations of the plaintiffs' rights as guaranteed by
the 1 st, 4th and 14th Amendments to the Constitution of the United States. Plaintiffs are bringing
this case to state court because of the defendants' pervasive abuse of process and multiple
violations of state law. The majority of violations alleged in this complaint date to July 17, 2009,
with some notable exceptions. (These violations are procedurally governed by the "Discovery
Rule".) Accordingly, the continuous violation doctrine applicable to federal civil rights
violations is asserted here. The noted violations that occurred prior to July 2009 were not
discovered until February 2011 or later. Per the foregoing, it became apparent that the
defendants had a long history of violating plaintiffs' 1 st and 14th Amendment rights. Therefore,
those violations are also included in this complaint.
PARTIES
2. Plaintiffs include:
a. Colonel (Ret., USA) Charles B. Breslin, an adult individual, residing at 11 Minich Drive,
Dickinson Township, Carlisle, Cumberland County.
b. Colonel (Ret., USAF) Phillip E Thompson, an adult individual, residing at 262 Richland
Road, Dickinson Township, Carlisle, Cumberland County.
C. Colonel (Ret., USA) Paul J. Cunningham, an adult individual, residing at 107 Ashton
Street, Dickinson Township, Carlisle, Cumberland County.
3. Defendants include:
a. Dickinson Township, (hereinafter Township) a township of the Second Class authorized
and organized pursuant to Section 65101 et seq. of the Pennsylvania Municipal Code 53 P.S.
2
§65101 et seq., Act of May, 1 1933 (P.L. 103, No.69) Reenacted and amended November 9,
1995 (P.L. 350, No. 60) As Amended, whose address is 219 Mountain View Road, Mt. Holly
Springs, PA 17065.
b. Allyn Perkins, former Chairman and current member, Board of Supervisors, Dickinson
Township. Address: 1909 Ritner Highway Carlisle, PA 17013-9310
C. Raymond Jones, former Chairman and Vice Chairman, Board of Supervisors, Dickinson
Township. Address: 624 Burnt House Road, Carlisle, PA. 17013
d. Daniel Wyrick, former Dickinson Township Supervisor and current Planning Commissioner,
Dickinson Township. Address: 840 Alexander Spring Road, Carlisle PA 17013
e, Laura Portillo, Open Records Officer and Township Manager, Dickinson Township.
Address: 219 Mountain View Road, Mt. Holly Springs, PA 17065.
f. Anthony Zizzi, former Dickinson Township Auditor. Address: 177 Richland Road, Carlisle
PA, 17013
g. Susan Smith, Esq., Dickinson Township Solicitor and also the solicitor of Duncannon
Borough. Address: 219 Mountain View Road, Mt. Holly Springs, PA 17065
h. John P. Morgenstern, Esq. (Deasey Mahoney Valentini & North LTD). Address: Suite
1601, Market Street, Philadelphia, PA 19103
i. Duncannon Borough, a municipal corporation existing under the laws of the Commonwealth
of Pennsylvania being located in Perry County Pennsylvania, whose address is 428 High Street,
Duncannon, PA 17020.
4. The plaintiffs, in different combinations, allege, inter alia, violations by the
defendants, in varying combinations, of the plaintiffs' 1st Amendment rights to comment on
matters of public concern free of retaliation, as well as their rights to petition for a redress of
3
grievances free of retaliation; their right to privacy as protected by the 4th Amendment; and their
Equal Protection rights under the 14th Amendment (to be treated the same as other citizens
similarly situated). Additionally, the plaintiffs Breslin and Thompson aver that they were
unlawfully denied the equal protection of the laws on matters pertaining to the plaintiffs' "Right-
to-Know" (RTK) pursuits as guaranteed by the 1St and 14th Amendments and Pennsylvania's
"Right-to-Know" Laws (RTKL).
Plaintiffs also aver that they have a right to be free of any and all "false light"
misrepresentations, (defamation, libel and slander), civil conspiracies, and to not suffer certain
defendants' negligent failure to exercise and issue a "legal hold". Upon reason and belief,
defendants Wyrick, Perkins, Raymond Jones, Zizzi, Smith and Morgenstern, in varying
combinations, conspired to knowingly make false claims of potential criminal wrongdoing
and/or knowingly enabling false claims and baseless innuendoes to be made in public with the
express intent of destroying reputations, tainting potential jury pools in order to subvert 1396,
abusing legal process in 1396, and intimidating and deterring plaintiffs from exercising their
rights of expression and to petition for redress.
In the case of Duncannon Borough the defendants Borough and Smith intentionally acted
to avoid, misapply, and/or otherwise subvert Pennsylvania's "Right to Know" laws constituting
an abuse of process in violation of plaintiff Thompson's 14th amendment rights and
commensurately violated plaintiff Thompson's 1st Amendment rights. All plaintiffs claim
violations of their rights to be free of "abuse of process" pursuant to their 14th Amendment
rights. These rights are also founded in the 1 st Amendment (access to the courts) and 14th
Amendment (denial of procedural due process).
4
.
JURISDICTION AND VENUE
5. Jurisdiction to hear constitutional torts is conferred on this court by 28 U.S.C.
§1331 and 28 U.S.C. §1343(a) (3) & (4) and the remedial statute 42 U.S.C. §1983. This
complaint is being filed in state court because an attorney (particularly defendant Morgenstern)
in that process committed multiple abuse of process violations and thus cannot be sued in that
process. Last, there are numerous allegations of violations of state law that are appropriately
addressed in a state forum like the Court of Common Pleas of Cumberland County Pennsylvania.
6. A jury trial is demanded. All individual defendants are and/or were state actors.
7. Punitive damages are demanded of the individual defendants. Under current 1983
law, punitive damages cannot be awarded against a municipality even though municipalities are
persons for purposes of civil rights law. The jurisdictional amount is exceeded in all counts.
8. Venue is properly within the jurisdiction of the Court of Common Pleas of
Cumberland County Pennsylvania because all parties, witnesses, and evidence are common to
Cumberland County Pennsylvania which lies within the County Court's jurisdiction. Judicial
notice can be taken that state courts can hear § 1983 actions.
OPERATIVE FACTS
9. Individually, the plaintiffs have a right to the equal protection of the laws pursuant
to the 14th Amendment to the U.S. Constitution. These rights were violated by Dickinson
Township and the individual defendants Raymond Jones, Allyn Perkins, Laura Portillo and
Susan Smith as regards the plaintiffs' rights to access and acquire "Right-to-Know" (RTK)
information the same as other citizens similarly situated.
10. The defendants' denial of plaintiffs' affirmative legal rights to access this
information was and is retaliatory in nature under the petition clause. It has also occurred in
5
retaliation for plaintiffs filing the federal lawsuit in this matter (docketed at 1:09-CV-1396) on or
about July 2009 and for continuing to raise issues of accountability and transparency of
Township governance thus violating plaintiffs 1st Amendment rights of free expression. Since
that time, the defendants have engaged in a "pattern of antagonism" for the sole purpose of
violating the plaintiffs' rights as expressly guaranteed by the 1St Amendment.
11. To begin, the plaintiffs learned in February of 2011 that they had been subjected
by Dickinson Township, Jones, Perkins, Portillo and Smith to a different standard of application
for RTK requests and different financial requirements in paying for these costly services as
compared to other citizens, similarly situated, over a period of years.
12. On or about February 2011, the plaintiffs learned that contrary to their rights to
the equal protections of the law for persons similarly situated, defendant Raymond Jones along
with the municipal defendant Dickinson Township applied an unlawful, punitive, more
restrictive, and financially oppressive standard to them as American citizens (and taxpaying
residents of Dickinson Township) under the Township's policies controlling access to public
information, all of which is jurisdictionally protected by the Commonwealth's "Right-to-Know
Law" (RTKL).
13. More specifically, plaintiffs learned on or about February 2011 that the above-
named defendant Raymond Jones and the defendant Dickinson Township were intentionally
permitting "Beth" Jones, defendant Jones' wife, to unlawfully use the power and badge of
authority of her husband and that of Dickinson Township. At the time Raymond Jones was a
policy maker regarding the matters complained of herein, serving as a Dickinson Township
Supervisor making and setting policy for the Township. Beth Jones demanded and received
6
information using her husband's "badge of authority" without being subject to the financial and
administrative burdens placed upon other citizens.
14. The plaintiffs aver that Beth Jones unlawfully acquired public information using
public resources for her husband at no cost purely for political campaign purposes. Upon reason
and belief, Beth and Raymond Jones were motivated to defeat a political opponent (Louise
Keckler) in a primary election scheduled for May 2007.
15. In May 2007, Louise Keckler was the candidate for an open seat on the Dickinson
Township Board of Supervisors. Defendant Perkins was her opponent. Upon information and
belief, Raymond Jones opposed Keckler's candidacy and actively campaigned on behalf of
Perkins, with his permission, to defeat her. By unlawfully using the authority and financial
resources of the Township to support Perkins, the defendants Dickinson Township, Jones, and
Perkins violated not only Keckler's rights, but they violated the plaintiffs' rights to equal
protections of the law by applying different standards of information availability and cost.
16. Unlike the defendants, the plaintiffs have been forced to pay hundreds of dollars
to procure their "Right-to Know" (RTK) and other information requests. Dickinson Township,
Perkins, and Jones used the financial and official resources of the Township to gain unfair and
unlawful political advantage of their political opponent in a campaign for public office without
being assessed applicable financial and administrative costs which were demanded of the
plaintiffs and other Township citizens let alone violating a number of other applicable criminal
and civil standards and rights. Jones' and Perkins' participation in this misconduct constituted a
state ethics law violation as well.
17. Beth Jones, cloaked with state authority by virtue of working by and through her
husband, used her husband's status and position as a Dickinson Township Supervisor to acquire
7
Keckler's personal financial statement free of charge. Upon information and belief, Perkins'
campaign manager (defendant Zizzi) used this information to politically defeat Louise Keckler's
candidacy to win a seat on the Dickinson Board of Supervisors. Thus, inter alia, they unlawfully
used public resources (funds) and public employees (services) to defeat a political rival.
18. Beth Jones, trading upon her husband's authority, unlawfully imposed upon
former Township Manager Robert Livingston, requiring him to use his authority and knowledge
as a Township official to supply Keckler's financial information. Despite voicing his objections
to the propriety of the request, Livingston complied. Upon information and belief, he complied
because he feared for his job. There is no public record indicating whether the Perkins campaign
(Zizzi, Perkins or Raymond Jones) reimbursed the Township for these unlawfully procured
services.
19. Upon information and belief, Raymond Jones was the initiator of, and complicit
in, the abuse of authority in which his wife Beth Jones engaged.
20. The plaintiffs did not learn until early 2011 that they had spent hundreds if not
thousands of dollars and hours of time to acquire RTK and other information from Dickinson
Township, whose authority and resources Jones and Perkins freely utilized at taxpayers' expense
for political purposes. Thus the plaintiffs were unlawfully subjected to a different and more
injurious standard than others who were similarly situated.
21. The plaintiffs further allege that current unlawful retaliatory actions by the
defendants (Dickinson Township, Raymond Jones, Perkins, Wyrick, Portillo and Township
Solicitor Smith) take the unlawful form of preventing them from receiving properly processed
RTK requests in accordance with Pennsylvania's RTKL. The defendants' actions in doing so
constitute an abuse of process (1396) and an unlawful retaliation for plaintiffs filing the suit. The
8
defendants persistently denied cooperation in discovery for 1396 and retaliated by denying the
plaintiffs lawful access to other information.
22. In January 2011, defendant Portillo (Dickinson Township's Open Records Officer
and current Township Manager) specifically asked to meet privately (without the knowledge and
approval of the Township Board of Supervisors) with the plaintiffs for the express purpose of
advising them on how they could counter an unlawfully orchestrated effort by the Township to
deny the plaintiffs public records to which they were entitled. Seven months later (August
2011), in 1396 proceedings, the defendant Portillo admitted that she did meet privately with the
plaintiffs at Plaintiff Thompson's home. This meeting was encouraged and initiated by Portillo.
That said, Portillo disingenuously claimed she was unable to recall any of the conversation or the
written recommendations she provided to the plaintiffs at the private meeting. Therefore
plaintiffs' collective recollections of the words and events discussed at the meeting are
uncontested. Similarly she was unable to recall whether she or the plaintiffs initiated the
meeting. Plaintiffs remember quite well it was Portillo. Despite having no memory of the
substance of the discussion, she did render a favorable comment on the soup she had for dinner
with the plaintiffs. Further, upon information and belief, Portillo's memory lapse regarding the
substance of the private meeting indicates that she feared workplace retaliation for cooperating
with the plaintiffs. As will be outlined in this complaint, the plaintiffs aver defendant Portillo
has subsequently impeded and denied the plaintiffs access to public records in blatant violation
of the plaintiffs' rights.
23. Additionally, the Board of Supervisors has not exercised its discretion in
reviewing citizens' RTK requests deemed "denied". The plaintiffs allege that the Township
solicitor, exercising Township authority, has unlawfully exercised "denial" authority for RTK
9
requests thereby usurping the Board's authority as outlined in the Commonwealth's RTK law.
24. Upon information and belief, defendants Jones, Perkins and Wyrick have refused
to provide records and affidavits at the request of the Township's Open Records Officer
(defendant Portillo), thus denying the plaintiffs access to records requested under the
Commonwealth's RTKL.
25. In further violation of the plaintiffs' 1St and 14th Amendment rights, Dickinson
Township, by and through counsel, has denied information lawfully requested by plaintiffs and
has hidden and secreted information in violation of F.R.Civ.P. 26 seeking to subvert legal
process during discovery on the original complaint in this matter (1396). This constitutes an
actionable abuse of process by Perkins, Portillo, Smith, and Dickinson Township. It also violates
the plaintiffs 1St Amendment petition rights.
26. Specifically, defendant Perkins admitted, on or about June 2011, that he kept
public documents pertaining to land development agreements secretly hidden and that he had
sole access to them. Plaintiffs, particularly Breslin, sought this information through a verbal
RTK request. The Township denied Breslin access to it and/or misled him as to its existence
during the 1396 litigation. These unlawful actions constitute an abuse of process and violations
of the plaintiffs 1St Amendment petition rights. This information had to do with original
interactions and agreements between a developer and the Township. It was a matter of material
and relevant value in the original complaint at 1396. This misconduct constituted an abuse of
process by the defendant Perkins and served the dual unlawful purposes of the defendants in
denying the plaintiffs 1St Amendment rights of expression.
27. During a June 2011 Dickinson Township Board of Supervisors meeting,
defendant Perkins made specific reference to the documents which he had hidden. In reference
10
to them, he indicated he knew what they were and what they were about. Local media reported
Perkins stating at a public Board of Supervisors meeting: "I have those documents in a secret
location that I guard very carefully but not here." Plaintiff Breslin sought these documents in
conformance to the Commonwealth's RTKL. The documents were directly related to the
original complaint in this matter and were subject to Rule 26 disclosure requirements. The
defendants, including the defendant Morgenstern, constituting a further actionable abuse of
process, did not disclose this information per Rule 26.
28. The defendant Smith, upon information and belief, has obstructed or otherwise
interfered with plaintiffs' legitimate RTK requests, constituting an abuse of process in violation
of plaintiffs' 1St and 14th Amendment rights. The defendants' actions were vexatious, and they
were ulterior to and out of proper compliance with the litigation needs and requirements of the
original complaint in this matter (1396). Consequently defendants violated not only plaintiffs
14th Amendment rights but their 1 st Amendment rights as well.
29. Upon information and belief, defendant (Solicitor) Smith proactively blocked
Thompson's multiple RTK requests between May and October 2011. More specifically
Thompson asked for copies of legal vouchers Smith submitted to Duncannon Borough in her
capacity as the Duncannon Borough Solicitor. He made his first request in May 2011. Thompson
made the request after reviewing the vouchers Smith submitted to Dickinson Township. His
review of the Dickinson vouchers generated several questionable billings (suggesting a
possibility of double billing) that he wished to explore by reviewing vouchers Smith had
submitted to other municipal clients during the same time frame. Despite several requests,
Thompson did not obtain Smith's vouchers for Duncannon until he pointedly advised the
Borough in October 2011 that he intended to ask the Perry County Court of Common Pleas to
11
intervene as his multiple requests were properly submitted in accordance with the
Commonwealth's RTK law.
30. Upon information and belief, Duncannon did not provide the records because
Smith refused to release them to the Borough. By doing so Smith violated not only Thompson's
rights, but having knowledge of plaintiffs' actions in 1396, she was motivated to act unlawfully
to impede the plaintiffs' rights in that case. Thompson obtained the requested vouchers only after
he warned the Duncannon Borough Open Records Officer of legal action in October 2011.
31. On or about August 2011, and upon information and belief, defendant Smith
deliberately misled the Commonwealth's Office of Open Records in her rebuttal of one of
Thompson's appeals of Duncannon's denial of records. Duncannon Borough denied a
Thompson RTK request by not taking action. Defendant Smith claimed that the Borough
Council did not understand the nature of Plaintiff Thompson's RTK request. Thompson
subsequently obtained records from Duncannon Borough that refute Smith's false claim to the
Commonwealth's Office of Open Records. Smith's misconduct constitutes a violation of the
plaintiffs' First Amendment rights and of their rights under the Open Records law. Plaintiffs aver
that her misconduct was motivated by her desire to conceal her own billings from public view in
order to mask what appeared to be dual billings to two different government entities for identical
services and to impede 1396 given the fact that the perceived dual billings related to RTK issues.
32. In August/September 2011, upon information and belief, Smith conspired with
Defendants Perkins, Jones and Portillo to again mislead the Commonwealth's Office of Open
Records in order to deny Thompson his access to a public record. In a rebuttal to an appeal that
Thompson submitted following a Dickinson Township denial of Thompson's request for a public
12
record, Smith claimed that Thompson asserted the record had been removed from the Township
office. Thompson disputes her assertion. He simply asked for a very specific record.
33. Upon information and belief, by falsely implying that the record had been
removed unlawfully, Smith sought to discredit plaintiff Thompson and the merits of his appeal.
The plaintiffs aver that her false claim was also an attempt to silence and intimidate Thompson in
the process. These are 1St Amendment violations. By additionally claiming that the removal of
the record from the Township posed serious legal implications, defendant Smith sought to coerce
and intimidate whomever it was that possessed the record. Upon information and belief, the
record Thompson sought in this instance demonstrates the existence of the retaliation plaintiffs
claimed in their original 1396 complaint.
34. The defendants Township and Portillo, upon information and belief, obstructed or
otherwise interfered with plaintiffs' legitimate RTK requests, constituting an abuse of process in
violation of plaintiffs' 14th Amendment rights and also constituting a violation of plaintiffs' 1st
Amendment rights. The defendants' actions were vexatious, and they were ulterior to and out of
proper compliance with the litigation needs and requirements of the 1396 complaint in this
matter. There were also designed to deter plaintiffs from exercising their right to petition for a
redress of grievances.
35. Upon information and belief, defendant Portillo, in her capacity as the
Township's Open Records Officer (ORO), treated Thompson's original August 2011 request
noted above differently than she has treated such requests in the past. Rather than asking former
and current township officials to search their personal records as had been her past practice, she
merely conducted what she claimed was a "reasonable" in-house search for the record. This was
unlawful misconduct to deny plaintiff Thompson access to a record the defendants wished to
13
conceal. As such this misconduct was a violation by Dickinson Township and Portillo of
Thompson's 1 st Amendment rights.
36. In a related instance during the same time period, defendant Portillo denied
Thompson's RTK request for any and all records associated with current and former Township
officials related to a purported FBI investigation of Thompson for two federal crimes (neither of
which had any basis in fact). As with the former example, Portillo limited her search to internal
files and failed to make any semblance of a good faith effort to request that any official, current
or former, search their personal files for related documents. This constituted not only violations
of Thompson's 1St Amendment rights but an additional equal protections violation since it was a
departure from a totally different Township practice in the past.
37. As noted earlier, defendant Portillo met privately with the plaintiffs in January
2011 to advise them on how they could counter an orchestrated effort by the "Township" to deny
the plaintiffs public records to which they were entitled. Defendant Portillo specifically
disclosed that a recent determination by the Commonwealth's Office of Open Records -
specifically involving Dickinson Township (Wyrick v Dickinson Township) - concluded that
communications between public officials on their private computers were considered to be public
records. Upon information and belief this determination was discussed with Mr. Morgenstern.
Although obligated to do so, neither the Township nor defendant. Morgenstern initiated a
"litigation hold" in violation of applicable law. Nor did the defendants comply with their Rule 26
obligations constituting an abuse of process. Upon further information and belief, the Township
intentionally failed to disclose this ruling to its citizens as a way to obstruct the plaintiffs.
38. Given her awareness of this determination, Portillo's decision not to ask any
former or current official to search their private records was an attempt to deny plaintiff
14
Thompson's access to a record the defendants wished to conceal. That she would later publicly
state in December 2011 that making such a request would be "burdensome" and likely "haunt"
Township officials to their "graves", strikes at the heart of the General Assembly's intent of the
legislation which was to prohibit secrets and to enhance transparency. As a further abuse of
process, defendant Morgenstern attempted to use the e-mail exchange referred to above as a way
to smear the plaintiffs and former Township manager Robert Livingston knowing his accusations
were false and inaccurate.
39. A particularly egregious abuse of the "Right to Know" process illustrates the
extent to which defendants (Dickinson Township, Susan Smith and Laura Portillo) were willing
to subvert the original 1396 litigation. In December 2011, plaintiff Thompson submitted a RTK
request that fully complied with the Commonwealth's RTK law. Thompson's request (dated 14
December 2011) asked for copies of all correspondence (paper and electronic) that Dickinson
Township's Open Records Officer (defendant Portillo) sent and received from current and
former elected and appointed Township officials related to plaintiff Thompson's previous
requests for public documents during the period August 2009 through September 2011. The
defendants denied plaintiff Thompson's request by inaction.
40. Rather than follow a discernible consistent practice, defendant Portillo, as the
Township's Open Records Officer (ORO), has chosen to "tailor" her response based on the level
of sensitivity the Township defendants have to requested records, thus effectively denying
records on the basis of content by not making a lawful, "good faith effort" (as required by the
Commonwealth's RTKL). This misconduct constitutes a 1st Amendment violation of the
plaintiffs' rights and an abuse of process.
15
41. On September 29, 2011, Plaintiff Breslin submitted a RTK request to Dickinson
Township requesting a copy of an email addressing township business currently in the
possession of former Township Manager Robert Livingston. The email was dated 9 February,
2006 with a subject line of "Sunshine". Breslin informed defendant Portillo (the Township's
ORO) that Mr. Livingston would provide the document upon the Township's request.
42. On October 7, 2011, the Township denied Breslin's RTK request and attached an
affidavit signed under penalty of perjury by its Open Records Officer (defendant Portillo),
indicating that Portillo had "done a reasonable search of the paper and electronic records in the
custody of the township for the requested record. No records responsive to the request were
found." The Township also asserted that the RTK request was insufficiently specific despite the
fact that Breslin had provided the date, subject and identify of one of the recipients and who had
physical possession of the record.
43. Upon information and belief, defendant Portillo, again in her capacity as the
Township's Open Records Officer, treated Breslin's September 2011 request differently than she
has treated such requests in the past in violation of all plaintiffs' rights but specifically Breslin's
1St and 14th Amendment rights. Rather than asking former and current township officials to
search their personal records as had been her practice, she merely conducted what she described
as a purportedly "reasonable" in-house search for the record. This change in search
methodology and description was an attempt to deny Breslin's access to a record the Township
wished to conceal.
44. Breslin subsequently appealed to the Commonwealth's Office of Open Records
(OOR), and the OOR granted his appeal (Docket No.: AP 2011-1369). The Commonwealth
directed the Township to contact current Township officials for the requested email. Plaintiff
16
.
Breslin subsequently petitioned this Court for a determination to direct the Township ORO
(Portillo) to contact former officials for the email (Docket No. 2011-9255).
45. When Breslin appealed the Township's denial of the requested email on October
25, 2011, he provided the Commonwealth's Office of Open Records a position statement setting
forth a rationale suggesting the Township's motivation for denying his original request. (See
Docket No. 2011-9255 for the specific allegations.) In short, the plaintiffs aver that the
Township and its former solicitor violated multiple provisions of the Second Class Township
Code and the Commonwealth's "Sunshine Act" in arranging for the politically motivated
termination of Township employees.
46. In sum, the defendants' refusal to comply with the Commonwealth's RTK laws as
retaliation for plaintiffs filing 1396 subjects them to the claims for retaliation under the 1st and
14th Amendments in this complaint. It also subjects them to suit, again in this complaint, for the
violation of plaintiffs' state torts rights such as prohibitions against civil conspiracy and abuse of
process among others. In this Court, under the application of both federal and state law, these
wrongs comprise an actionable abuse of process which can be remedied through §1983 and the
application of existing state law.
47. Defendant Morgenstern accused different persons of stealing this e-mail and falsely
represented to the federal court in 1396 that it was privileged knowing all of this was untrue. No
one stole anything. The e-mail was not privileged for any reason. Defendant Morgenstern
violated Rule 26 disclosure requirements and unlawfully avoided legitimate discovery
requirements to subvert the intent and purposes of the litigation in 1396. That constitutes an
actionable abuse of process in federal court.
17
48. Under the 1 st and 14th Amendment to the United States Constitution, plaintiffs
have a right to comment on matters of public concern, to question public officials for purposes of
accountability, and to seek redress free of intimidation, retaliation or unequal protections (such
as use of the "RTKL"). Plaintiffs also have a right to speak in front of and to petition Dickinson
Township's elected and appointed officials the same as other citizens similarly situated. The
defendants (Dickinson Township, Perkins, Jones and Smith) have, in haphazard fashion,
arbitrarily and capriciously enforced Dickinson Townships' ever-changing Public Meeting
Policy (amended at least five times since first promulgated in June 2009) to deny the plaintiffs
their 1St and 14th Amendment rights. The plaintiffs aver that the defendants were and are acting
out of retaliation for plaintiffs' filing and prosecuting the original 1396 complaint in this matter,
thus constituting an abuse of process.
49. The defendants, (Dickinson Township, Perkins, Raymond Jones and Smith) using
inaccurate and dishonest artifices in an arbitrary and capricious fashion have, on numerous
occasions, denied plaintiffs the right to receive and be advised of timely Township meeting
agendas, to speak at public meetings, and to be free from being arbitrarily and capriciously
declared out of order. Defendant Perkins, aided and abetted by defendant Smith, has routinely
abused his official power and authorities as Board Chairman to declare citizens to be "out of
order" and/or disruptive for the sole purposes of silencing critics and to avoid listening to speech
with which he disagrees.
50. The defendants (Perkins and Smith) have denied the plaintiffs the opportunity to
speak on the business portion of meeting agendas, curtailed plaintiffs' public comments on the
basis of content, ignored plaintiffs' attempts to raise "points of order" (although Smith and
Perkins have indicated that the Township follows "Roberts Rules of Order"), and have tailored
18
official minutes to mask the content of speech - all in retaliation for plaintiffs filing the original
case in this matter at 1396 and for raising issues of accountability and transparency. Multiple
examples of such misconduct by the defendants occurred in March, June, August and November
of 2010 and in March, October, November, and December 2011. These examples are not all-
inclusive. All of this occurred after 1396 was filed and in retaliation therefore.
51. To begin, plaintiffs submitted multiple discrete requests (on or about March 2010,
June 2010, November 2010 and November 2011) to be on the "business agenda" of Board of
Supervisors meetings to discuss issues that were clearly matters of public concern i.e., in the
public interest. Their desire to speak as a pre-coordinated agenda item would enable the
plaintiffs (as per the Township's purported Public Meeting Policy) to address the Board of
Supervisors absent the rigid and inflexible time constraints imposed on citizens during the
"public comment" portion of Supervisors meetings. The issues the plaintiffs desired to discuss
before the Board included solicitor (including Smith) legal services and associated costs,
operating principles, accountability for expenditures of Township funds, and the Board's
treatment of the citizens that appear before it, especially defendant Perkins' authority to
unilaterally declare citizens "out of order" and to have them removed from the building without
majority consent if they said anything of which he did not approve. The Township, and
especially defendant Perkins in his role as Chairman of the Board of Supervisors, did not
approve any of the requests. Each denial was a separate denial of the plaintiffs' rights.
52. Having been denied the opportunity to make a scheduled appearance before the
Board, plaintiff Thompson subsequently submitted lists of very specific questions to the Board
addressing Board of Supervisor accountability. Thompson submitted his written questions in
April 2011 and May 2011 in a manner consistent with the Township's Public Meeting policy.
19
Defendant Perkins and the Township did not recognize plaintiff Thompson's questions at the
next regularly scheduled Board of Supervisor's meeting as was required by the Township's
Public Meeting Policy. This was in retaliation for filing 1396 and in violation of Thompson's 1St
Amendment rights to speak out.
53. The Township has never answered Thompson's questions. The Township later
"recognized" that he had submitted questions without any further amplification on them only
after plaintiff Thompson addressed the issue with the former Township Manager Reeder. This
misconduct constitutes multiple violations of the plaintiffs' V t Amendment right to speak out on
matters of public concern, their 1st Amendment right to petition for a redress of grievances (i.e.
retaliation for filing 1396), violations of the plaintiffs' rights to the equal protections of the law
(arbitrary and capricious application and enforcement of the Township's Public Meeting Policy)
where the defendants Township, Perkins, and Smith permitted Beth Jones (the wife of defendant
Jones) and defendant Wyrick to enjoy different and more liberal comment opportunities before
the Township on a number of occasions including but not limited to December 2010, May 2011,
November 2011, December 2011 and January 2012.
54. On March 15, 2010, Thompson attempted to address the Board of Supervisors.
Plaintiff Thompson stated that his intent was to address issues related to transparency, honesty
and accountability in the township. He specifically discussed what he considered to be blatantly
false allegations that defendant Jones and former Township Manager Ronald Reeder made in a
newspaper interview and attempted to provide supporting evidence of deliberate deception and
falsification as supported by the Township's own records. (Township minutes for that meeting,
being unlawfully manipulated, do not reflect the subject of Thompson's comments.) Perkins
denied Thompson's request for an additional three minutes to speak during "public comment"
20
per the Township's Public Meeting Policy on the basis that he would have to listen to the
presentation before he could decide.
55. Perkins denied plaintiff Thompson's 1St Amendment right to speak solely on the
basis of the pre-described general content of Thompson's speech. In addition to failing to
identify the correct subject of Thompson's comments, the Township's minutes fail to note any
reference to defendant Perkins' threat to have plaintiff Thompson forcibly removed from the
meeting and barred from future meetings if Thompson persisted in protesting Perkins' arbitrary
and capricious enforcement of time limitations outlined in the Township's Public Meeting
Policy. This misconduct by the Defendants Township, Perkins, and Jones constitutes violations
of the plaintiffs' 1St and 14th Amendment rights.
56. The Plaintiffs (Breslin, Thompson & Cunningham) were denied an opportunity to
comment at a public hearing in June 2010. The hearing concerned Dickinson Township's effort
to remove former defendant Wyrick from the Planning Commission pursuant to Section 206 of
the Municipalities Planning Code, 53 P. S. § 10206 (Removal for malfeasance, misfeasance or
nonfeasance in office.). Township Supervisors believed Wyrick offered to publicly disclose
"certain confidential information learned during his tenure as a member of the Board of
Supervisors". The solicitor at the time had advised Wyrick that his behavior was "nefarious",
"subversive" of township interests, and had put the Township at risk of liability.
57. Upon information and belief, defendants Jones, Perkins and Solicitor Smith
"orchestrated" the agreement's approval and subsequent hearings in a manner to deliberately
deny the Plaintiffs the opportunity to offer public comment on the Township's settlement
agreement (referred to hereafter as the "Wyrick Agreement") with former Supervisor Wyrick.
21
This misconduct was retaliatory particularly because the "agreement" specifically referred to
Wyrick's cooperation with the litigation at 1396.
58. The hearing began on 3 May 2010, and later continued to 7 June 2010. As the
minutes reflect, the public was not afforded the opportunity to comment at the hearing when it
was initiated on 3 May 2010 as the hearing was "continued". The hearing was scheduled to
reconvene as an "agenda" item at the Board of Supervisors regularly scheduled meeting on 7
June 2010. As Township minutes reflect, the hearing followed a "business" agenda item titled
"Consideration of agreement with Dan Wyrick". Township minutes state that Supervisor
Perkins informed the public that any comments related to the Wyrick hearing could not be
discussed during public comment since the hearing was an "agenda" item. [Note: Township
policy prohibited and continues to prohibit comments on agenda items during the "public
comment" portion of township meetings].
59. Upon approval of the Wyrick Agreement (without allowing for public comment),
the Board of Supervisors approved a request from Wyrick's Attorney to "withdraw" the hearing.
In response to Plaintiff Thompson's specific request to comment, Township minutes document
the solicitor's response: "Solicitor Smith said that public comment couldn't occur on the matter
since the hearing has been withdrawn and the point is moot." This misconduct was retaliatory. It
constituted a violation of plaintiffs' rights to speak out and also acted to deny their rights to
petition.
60. The record suggests that defendants Jones, Perkins and Smith "orchestrated" the
agreement's content and the scheduling of the Wyrick "hearing" in a manner to deliberately
inhibit Plaintiff's discovery in the 1396 litigation and to prevent the Plaintiffs from offering
public comment on the Township's settlement agreement with Wyrick. Chairman Perkins
22
denied in his 1396 deposition that the Township's agreement with Wyrick had anything to do
with this litigation despite the express provisions of the agreement in which the Board of
Supervisors agreed to allow Wyrick to remain a Planning Commissioner in exchange for his
silence in the 1396 lawsuit. In addition to being retaliatory this misconduct constitutes an abuse
of process actionable under both federal (1st and 14th Amendment) and state law.
61. As the "Wyrick Agreement" reflects, in exchange for keeping his seat on the
Planning Commission, Wyrick agreed to "refrain from commenting on, making statements
regarding, or publicly disseminating information regarding the lawsuit Breslin v. Dickinson
Township et al, Civ. No. 1:09 CV-1396 (M.D. Pa) or any matters at issue therein, except to
discuss matters with named counsel for the Township or Wyrick's private counsel." The
"Wyrick Agreement" also declared: "The Township shall discontinue the hearing regarding
removal of Wyrick from the Planning Commission scheduled for June 7, 2010". These
provisions of the Agreement demonstrate that the Township desired to inhibit the Plaintiffs
discovery in their 1396 litigation and intended to deny citizens an opportunity to comment on a
matter of considerable public interest at the time in violation of the plaintiffs' federally
guaranteed rights under the 1st and 14th Amendments and in violation of their rights under state
tort law.
62. In his 1396 deposition, Wyrick testified that defendants Perkins and Smith,
former supervisor Wyrick and Wyrick's legal counsel met to negotiate and to finalize the Wyrick
Agreement in advance of the scheduled 7 June 2010 meeting.
63. The Board of Supervisors approved the Wyrick Agreement without disclosing the
contents of the "Wyrick Agreement" to the public. An audiotape of the meeting contradicts the
official Township minutes that were unlawfully altered to say suggest that the public was offered
23
an opportunity to address the Board on its motion to approve the Agreement. Local media
reported that defendant Perkins, who enforces the Township's public comment policy during
meetings, did not solicit comments from the public before a vote was taken on the Agreement.
The audiotape clearly reveals that defendant Perkins asked if there was any further discussion
among the Supervisors before he immediately offered his motion to approve the Agreement, but
he did not offer the public the opportunity to comment in accordance with the Township's Public
Meeting Policy in a successful effort to deny the plaintiffs their guaranteed rights.
64. Having concluded the "business agenda" regarding the Agreement, defendant
Perkins moved on to the next item on the Board's agenda. Defendant Smith immediately offered
the unsolicited, but obviously surreptitiously planned in advance, commentary that questioned
whether or not Mr. Wyrick and his Attorney had a continued interest in the hearing. In response,
Wyrick's attorney immediately asked "that the hearing be discontinued and withdrew the request
for a hearing due to the acceptance of the Agreement". Defendant Smith's interjection at this
point in the meeting is explained by her own vouchers for legal services. Her vouchers for
6/02/2010 show that she "developed strategy and terms for settlement of disclosure issues and
disposition of requested hearing (Italics added) on removal from Planning Commission". This
misconduct was not only retaliatory in response to 1396 but was a flagrant violation of the
plaintiffs' 1St Amendment rights to expression.
65. Plaintiff Thompson attempted to comment on the Agreement and was denied by
defendant Perkins. Township minutes reflect that Plaintiff Thompson objected to the lack of a
public comment period. Plaintiff Breslin can be heard on the audiotape asking about the chance
to speak out for public comment purposes. The Township minutes indicate that justification for
a lack of public comment was offered by Township Solicitor Smith who stated "public comment
24
couldn't occur on the matter since the hearing has been withdrawn and the point is moot". This
was unlawful actionable misconduct by defendants.
66. When the Board ratified the Wyrick agreement, defendant Perkins declared that
he had no prior knowledge that the hearing was to be terminated once the agreement was
approved by a Board majority. Township minutes reflect the following: "Chairman Perkins
reiterated that the Board could not have known that the Wyrick hearing would not continue since
the Agreement wasn't approved at the time of public input" (emphasis added).
67. However, vouchers for the Township Solicitor's legal services indicate that
defendant Perkins was regularly informed on the "Wyrick Agreement" negotiations and had
personally attended a settlement negotiation meeting. Wyrick testified in his 1396 deposition
that defendant Perkins attended a meeting with Wyrick's legal counsel as the final terms of the
Agreement were drafted and agreed upon. Extracts from solicitor vouchers suggest that not only
was Perkins well aware of the Agreement but strongly suggest that he knew, in advance, that the
hearing would be discontinued, thus denying the public any opportunity to comment on an issue
that had intense and widespread public interest.
68. Defendant Smith's vouchers also reflect that she billed the Township for
developing the strategy to maintain Wyrick on the Planning Commission and to obviate the need
for a public hearing thus participating directly in the violation of plaintiffs' rights. Upon
information and belief, this was done for the sole purpose of achieving Wyrick's support of the
defendant's efforts to subvert 1396. Wyrick was incidental to and a participant in these violations
of the plaintiffs' rights.
69. Upon information and belief, defendant Perkins unilaterally decided to enter into
negotiations with Wyrick on behalf of the Township without full Board knowledge and approval.
25
This decision violated multiple provisions of the Commonwealth's "Sunshine Act". The
decision to negotiate a settlement with Wyrick and the deliberations by a quorum of the members
of the Township's Board of Supervisor did not take place at a meeting open to the public.
Additionally, there is no record that defendant Smith's work on this effort, to include
negotiations she and defendant Perkins conducted with Wyrick and his counsel in the latter's
office were properly authorized by any Board action as required by the Second Class Township
Code (§ 603). These actions unequivocally demonstrate the defendants' Smith and Perkins
violations of the plaintiffs 1 St ( rights to speak out and rights to petition) and 14th (equal
protections) Amendment rights as well as a violation of their rights to be free of abuse of
process as both a federal and a state tort claim.
70. The public record and actions of the defendants (Perkins, Smith, Jones and
Wyrick) indicate that the hearing on 7 June 2010 was planned in advance and later
"orchestrated" with the specific purpose of denying the public (specifically plaintiffs Breslin,
Cunningham and Thompson) an opportunity to offer comment on the "Wyrick Agreement". The
conduct of the hearing violated the Commonwealth's "Sunshine Act" and denied the plaintiffs
their 1 st Amendment rights of expressive freedom.
71. Further, the plaintiffs aver that defendant Smith knowingly misrepresented the
Wyrick Agreement at the hearing on 7 June 2010 and the procedural circumstances that led to
the termination of the public hearing. By terminating the publicly advertised hearing without
providing an opportunity for public comment, the defendants violated provisions of the
Commonwealth's "Sunshine Act" and effectively denied the plaintiffs and other citizens their
rights to expressive freedom on an issue of considerable public concern.
26
72. In August 2010, plaintiff Thompson again attempted to address the Board of
Supervisors. As he began his comments, Thompson asked Perkins to accord him the courtesy of
looking at him while he, Thompson, was speaking. [Township policy requires all citizens to
address their comments only to the Chairman (Perkins).] Perkins had purposely turned his chair
away from Thompson as soon as Thompson began to speak. Acting on his sole discretion,
Perkins summarily ruled Thompson "out of order" for the request, thus denying Plaintiff
Thompson any further opportunity to speak. Thompson was not impolite or impertinent. This
misconduct was an artifice by Perkins, constituted an abuse of his powers and discretion, and
was engaged in for the sole purpose of retaliating against Thompson for speaking out on matters
of public concern.
73. After Perkins declared Thompson out of order, he (Thompson) appealed to the
solicitor (defendant Smith) who also serves as the Township's "parliamentarian". When
Thompson advised the solicitor that he was merely asking for a common courtesy, Perkins
declared Thompson "out of order" a second time for violating Township policy that requires
citizens to direct all comments to the Chairman (defendant Perkins). The solicitor (defendant
Smith) immediately confirmed that Thompson was "out of order" because the Township's public
meeting policy does not require a supervisor to maintain eye contact with citizens. Plaintiffs
aver that this act was a pretext for retaliation by Perkins and Smith because Thompson had sued
the Township in 1396.
74. In November 2010, Thompson submitted a written request asking to be on the
Board of Supervisors' meeting agenda for November 15, 2010 to raise issues addressing legal
services involving the Township's solicitor, the law firm of Smith Cartwright of Camp Hill, PA.
He sought a second and similar business agenda opportunity a year later, in November 2011, to
27
address legal services provided by the law firm of Susan J. Smith as well as Smith Cartwright.
He was successful with neither. His interests included concerns about perceived egregious travel
charges, the potential of double-billing, imprecise time-accountability, the abuse of redaction
authority and the solicitor's role in proactively developing a strategy to retain defendant Wyrick
on the Planning Commission and to avoid a scheduled public hearing on the matter. These were
all matters of public concern.
75. Thompson also wished to address the wisdom and necessity of using tax dollars to
pay a solicitor to monitor citizen "Letters to the Editor" and citizen comments on social
networks. Finally, Thompson wished to examine the legality of a solicitor providing free
mortgage advice to Perkins and the use of tax dollars to pay the solicitor to rationalize a
perceived conflict of interest that she and Perkins had concealed from the public at the time of
her hiring. These were matters of public concern.
76. Upon information and belief, Smith acted to deny Thompson the right to speak on
the business agenda in November 2010 and thus denied him access to information in violation of
his 1 St and 14th Amendment rights. That Smith's vouchers make no mention of the time she
devoted to internal correspondence (redacted in its entirety) on this matter demonstrates an intent
to conceal her role in a matter where she had, and continues to have, a personal interest that
raises issues of potential unlawful misconduct. These are matters of public concern
77. Thompson arrived at the aforementioned meeting to learn, for the first, time, that
he was not on the agenda as requested despite the fact that he had complied with the Township's
standard procedure for submitting an agenda request. Documents Thompson obtained through
the RTK process confirm that defendant Jones and defendant Perkins were aware of his agenda
request as was the Township's defense counsel for 1396, Mr. Morgenstern. These were matters
28
of public concern and constitute not only violations of the plaintiffs' 1St Amendment rights but an
abuse of process under the 14th Amendment and under Pennsylvania tort law.
78. When Thompson asked to speak during the November 2010 public comment
(constricted) portion of the meeting, he reminded Perkins that the Township had denied three
separate requests he had properly made to be on the public agenda in recent months. He also
stated that the unprecedented presence of a court reporter and two armed constables was an act
intended to intimidate. Plaintiff Thompson then asked to speak for three additional minutes
consistent with the Township's Public Meeting Policy provisions.
79. Defendant Perkins denied the request for three additional minutes. Perkins'
denial was based on his unlawful efforts to prevent the disclosure of information regarding legal
services that would have proved embarrassing to him, to Smith, and to her law firm.
Thompson's interest in accountability and transparency was a legitimate matter of considerable
public concern. Perkins and Smith's denial of these rights amounted to a violation of the
plaintiffs' federally guaranteed rights.
80. Also, during the November 2010 meeting, when Thompson did speak, the
defendant Perkins directed a hired court reporter to record Thompson's comments verbatim. The
hired court reporter recorded his speech. This was an intimidating and unique action by the
Chairman (Perkins). As of the date of that exchange, with the exception of Township land-use
hearings, the Township had not directed the official recording of any citizen's comments by a
court reporter during a "public comment" section of the Township's meetings. Nor is there any
evidence that it has done so since. Thus, in addition to curtailing plaintiff Thompson's
expressive freedom and right to redress, defendant Perkins and the Township also violated
Thompson's right to equal protection of the laws. He was subjected to a new and arbitrary
29
standard for that specific instance in retaliation for filing 1396 and for continuing to pursue
legitimate citizen concerns about government accountability and transparency. The unlawful
actions referenced above by Perkins, Smith, and the Township violated plaintiffs' 1St and 14th
Amendment rights and as well demonstrate an abuse of process under both federal and state law.
81. When Thompson began to raise troubling questions about legal billings involving
Perkins, Smith, and the law firm of Smith Cartwright, Perkins declared that Thompson's time
was up, well short of the allocated five minutes provided for in the Township's Public Meeting
Policy. Prior to that date, Perkins delegated authority to "time" citizen comments to the solicitor.
That Perkins personally interjected that Thompson's time had expired, demonstrates the arbitrary
and capricious manner by which he silences those whose speech he does not wish to hear. As
such, Perkins actions and the actions of Dickinson Township for whom he sets policy constitute
retaliatory violations of plaintiff Thompson's 1 st Amendment rights to petition and also
constitute violations of his rights of expression. They also constitute violations of his 14th
Amendment rights to be free of abuse of process under both state and federal law.
82. Plaintiff Cunningham has an equal right to speak out on matters of public concern
under the 1St Amendment which was violated by the defendants. Cunningham was denied these
rights at a March 2011 Dickinson Township Supervisors' meeting by the defendants Perkins,
Smith, and Dickinson Township when he spoke to an effort by Smith to act on an unspecified
document destruction proposal. Cunningham also alleges that he is entitled to his rights to the
equal protections of the laws (a 14th Amendment right) to speak before the Township as are
others similarly situated. These actions in addition constitute an abuse of process violating both
federal and state law.
30
83. During the business portion of the meeting, and after the agenda had been
approved and promulgated, defendant Smith unexpectedly, and without informing or
coordinating with Township staff, proposed a new agenda item regarding records destruction.
Concerned that this proposed destruction could impact records associated with RTK requests and
associated RTK appeals along with his on-going litigation (1396), Cunningham rose to speak and
began to address the proposed destruction of records.
84. Taking offense at the content of plaintiff Cunningham's speech, Perkins abruptly
"recessed" the meeting, and joined defendant Smith in a side room not accessible to the public.
(Defendants Perkins, Jones, Smith and Dickinson Township have routinely "recessed" Township
meetings when confronted with speech that they did not wish to hear.) Upon reconvening the
meeting, defendant Perkins announced that the Township had concluded all the business it
intended to complete that night - effectively denying plaintiff Cunningham's right to expressive
freedom to speak on a matter of considerable and legitimate public concern. This action was
retaliatory and thus in violation of Cunningham's 1 st and 14th Amendment rights. It also violated
plaintiffs rights to be free of not just an abuse of process but a violation of the defendant's duty
to place a legal hold on Township documents in 1396 which is what Smith's and Perkin's
unlawful actions targeted.
85. The defendants Smith, Perkins, and Dickinson Township unlawfully took the
Township meeting to a back room in violation of the Sunshine Act and Cunningham's rights to
expressive freedom and, in the process, violated the Township's own Public Meeting Policy by
denying the general public's and specifically Plaintiff Cunningham's right to address items on the
agenda. That Cunningham was correct to challenge any undefined effort to destroy records was
later confirmed when the Township was unable to provide, through a RTK request, any evidence
31
that the Township's defense counsel or solicitor had served notice of a "litigation hold" on
records for the 1396 complaint.
86. Upon reconvening the meeting, Chairman Perkins immediately motioned to
adjourn the meeting despite the fact that remaining agenda items remained unaddressed. At no
time did Perkins indicate that he was deferring the remaining agenda items to the following
Supervisors' business meeting, nor did he indicate that additional public comment time would be
provided at the following Supervisor's meeting. These are actions required by the
Commonwealth's Sunshine Act. They also constitute a violation of the plaintiffs 1 st Amendment
rights and of their 14th Amendment rights to be a free of abuse of process also violating
Pennsylvania tort law.
87. Defendant Perkins' unilateral actions to ignore the remaining agenda items is but
another example by which defendants Perkins and Smith arbitrarily and capriciously enforced
Dickinson Townships' arbitrarily fluctuating Public Meeting Policy. The adjournment
constituted a clear violation of Plaintiff Cunningham's 1 St and 14th Amendment rights.
88. In December 2011, Plaintiff Breslin attempted to discuss Solicitor (defendant
Smith's) legal expenses during a public discussion of the proposed 2012 budget. Defendant
Perkins arbitrarily and capriciously terminated Breslin while he was delivering his comments,
claiming that his time was up. Perkins was in direct violation of the Sunshine Act and in
contradiction to the Township's own policy that governs public discussion during
agenda/business portions of public meetings. Not surprisingly, the Township minutes for that
meeting make no mention of Perkins' actions. However, the Township's video record of the
meeting clearly documents Perkins' actions to terminate and restrict Breslin's presentation.
Perkins plainly curtailed Breslin's speech based on the content of his presentation and in
32
retaliation for Breslin's role in filing 1396. These unlawful actions constituted a combination of
1St and 14'h Amendment violations of the plaintiffs' rights.
89. As plaintiff Breslin attempted to outline defendant Smith's questionable billing
during an agenda discussion for the proposed 2012 Township Budget, Chairman Perkins ruled
that Breslin's time had expired and that he would no longer be permitted to speak. When Breslin
appealed the arbitrary and capricious enforcement of the Dickinson Township Public meeting
policy, Perkins abruptly "recessed" the township meeting in retaliation, once more violating the
plaintiffs' 1 s' and 14th Amendment rights.
90. Since the adoption of the Township's Public Meeting Policy in July 2009, the
Township had not restricted the duration of any individual's right to address agenda items listed
as "new" or old" business agenda items. Thus, plaintiff Breslin was also treated to a different
standard which violated his 14th Amendment equal protections rights as well. These standards
were applied to no other citizens but the plaintiffs.
91. Upon reconvening the meeting, Breslin was informed by defendant Perkins that
he would no longer be permitted to speak to his concerns. Perkins was motivated by his desire, in
concert with Smith, to conceal the extent of Smith's billings, to avoid public disclosure of what
were obviously egregious billings and questionable services. Under the 1 S' Amendment and
Pennsylvania law citizens have an enforceable right to question i.e. petition the government and
especially inquire into the spending of tax dollars. Defendant Perkins denied plaintiff Breslin
these fundamental rights under the 1 S' and 14`h Amendments and under state tort law.
92. As noted earlier plaintiffs aver that the Township has deliberately engaged in
arbitrary and capricious misconduct designed to deny the plaintiffs rights as protected by the 1 S'
and 14th Amendments. Those unlawful actions include enacting and arbitrarily enforcing a
33
Public Meeting Policy complained of as unconstitutional by the American Civil Liberties Union
(ACLU); videotaping the plaintiffs' public comments at Township meetings; stationing armed
constables in the Township meeting hall to monitor public participation at meetings; changing,
falsifying, deleting, and omitting key activities and public comment in Township minutes; and
employing the Township's solicitor to "monitor" newspaper editorial commentary and internet
postings critical of Township leadership. Then, in an additional effort to negatively affect the
outcome of 1396, the defendants concocted a coordinated campaign to libel, slander and defame
the plaintiffs, all in an effort to coerce, intimidate and to silence the plaintiffs for raising issues of
wrongdoing which were protected rights under the 1St Amendment. This misconduct constituted,
among other things, an abuse of process.
93. The Township enacted, revised, and has arbitrarily and capriciously enforced a Public
Meeting Policy that was designed intentionally to deny the plaintiffs their 1 st and 10
Amendment rights. The policy, first enacted in July 2009, was assessed as unconstitutional by
the American Civil Liberties Union (ACLU). The ACLU, citing Constitutional and Sunshine
Act protections, threatened the Township with litigation if the Township enforced provisions
limiting free expression by broadly prohibiting certain types of comments and questions,
requiring speakers to publicly identify themselves by address and group affiliation, giving the
chairman sole discretion to curtail or extend particular public comments and limiting public
comment period to 30 minutes. To date, with the exception of requiring speakers to publicly
identify themselves by address and group affiliation, the plaintiffs aver the Township continues
to enforce those remaining provisions viewed as unconstitutional by the ACLU. They do this by
unlawfully denying information and by excluding and threatening participants (especially the
plaintiffs), at public meetings, among other things
34
94. As first adopted in July 2009, the Township's public comment resolution
precluded "undue interrogation" of officials to include staff. In August 2009, the ACLU warned
the Township that the policy violated the 1 st Amendment and the Pennsylvania Sunshine Act by
giving the Chairman such unrestricted discretion to define the overly broad and vague term
"undue interrogation". The ACLU followed with a second letter in January 2010 warning that
the policy could still violate the Constitution depending on how the Township limited public
comment to "current business" that comes before the Board.
95. In response to the ACLU's cautions, the defendants (Dickinson Township,
Perkins and Smith) interpreted the public comment resolution in a manner that restricts citizens
to offering only "comments" (vs. "questions") when they speak. Dickinson Township citizens
(specifically the plaintiffs) are prohibited from asking questions of the defendants at Board of
Supervisors meetings. As recently as November 2011 at the behest of Chairman Perkins, the
Township's Solicitor (defendant Smith) reiterated the policy prohibiting the public from asking
questions of the Board of Supervisor during the "public comment" portion of the meeting
agenda. By denying the plaintiffs (and the general public) any opportunity to question its elected
and appointed officials, defendants have denied the plaintiffs any and all federally guaranteed
rights to speak out on matters of public concern where they seek to hold elected officials
accountable for their actions and to seek redress under the 1 st Amendment. Plaintiffs have never
insisted nor asserted that the officials involved had any "duty" to answer any question.
Nonetheless the defendants unlawfully denied, and continue to deny, plaintiffs the right to "ask
questions".
96. The Township's Public Meeting Policy currently prohibits any citizen from
addressing any elected or appointed official of the Township other than the Chairman of the
35
Board of Supervisors. During his tenure as Chairman, defendant Perkins consistently decreed
that the plaintiffs must address all comments to him in his capacity as Chairman and that those
comments be restricted to five minutes in duration. Both of his mandated decrees were
unconstitutional. Yet, in December 2011 he applied a different standard for public comments by
his political allies which allowed defendant Wyrick and Beth Jones, the spouse of defendant
Raymond Jones, to interrogate and verbally attack Supervisor Reisinger, a political opponent of
Perkins.
97. When Plaintiff Thompson raised an objection to the tenor and tone of Wyrick's
personal attack upon Supervisor Reisinger, he was ruled "out of order" by defendant Perkins. By
so doing, Perkins, applied two standards - one to the plaintiffs and another to Wyrick and Beth
Jones, wife of former supervisor Raymond Jones, thus effectively denying plaintiffs the equal
protection of the laws, a protection afforded by the 14th Amendment. Perkins actions were
enabled and facilitated by defendant Smith who remained silent ratifying Perkins' unlawful
misconduct, in her role as the Township's solicitor and "parliamentarian". That the Township
allowed citizens to address any elected official for any length of time at its 16 January 2012 (a
meeting the plaintiffs did not attend) without a policy change conclusively demonstrates the
extent to which defendant Perkins interpreted and arbitrarily and capriciously applied the
Township's Public Meeting Policy to restrict the plaintiffs' right to expressive freedom and to
deny them the equal protections of the law during previous meetings as alleged herein.
98. The Township's position on expressive freedom is unequivocal in its Public
Meeting Policy and oral pronouncements. The Township's records underscore the fact that
public meetings are arbitrarily manipulated to deny plaintiffs the opportunity to express
themselves, all in retaliation for their filing at 1396. The defendants Smith, Perkins, Jones and
36
Dickinson Township violated plaintiffs' rights by effectively closing all doors to accountability
and redress. Plaintiffs could not speak on the business agenda, plaintiffs were "cut short" during
public comment sessions, and plaintiffs' written questions have been ignored. As alleged above,
plaintiffs were denied the opportunity to exercise rights and privileges afforded others similarly
situated such as Beth Jones, Wyrick, and others. It also is important to note that the defendants
sought to further deny plaintiffs' rights by approving meeting minutes that obfuscated the
content of their speech and which violated the intent of the Commonwealth's Sunshine Act.
These were actionable retaliatory actions by the defendants.
99. Finally, it is instructive to compare Township policy and practice relative to
public comment to Perkins' 1396 deposition testimony. The Township's Public Meeting Policy,
prohibits citizens from asking questions generally, and specifically prohibits citizens from asking
questions of any supervisor other than to Perkins, and pointedly prohibits questions to the
solicitor. Perkins has rigorously enforced a practice that requires all comments to be directed
solely to him for his sole discretion. Contrast that to his deposition testimony in August 2011
where he emphatically stated that citizens are free to ask questions at Township meetings of
anyone they wish. Perkins testimony was false.
100. Defendant Perkins' 1396 deposition testimony is contradicted by his practice as
Chairman of the Board and by solicitor Smith's assertions that the public comment period is for
comments only. The actions and statements of both defendants Perkins and Smith were recorded
in the Township's video record of the Board of Supervisors meeting conducted on November
2011. Additionally, defendant Perkins' 1396 deposition testimony is also contradicted by the
former Township Manager's written policy guidance that prohibits citizens from raising
questions to local government officials during "public comment" sessions at Board of
37
Supervisors meetings. Not only did Perkins testify falsely, but by doing so he outlined the
existence of an unlawful Township policy that was arbitrarily and capriciously applied in an
unequal manner to the plaintiffs. This was not unlike his deposition testimony where he
expressed surprise to discover the video-recording of meetings (discussed below) and where he
denied awareness of the impact of RTK requests on the township despite having advised the
public 90 days before that he was working on precisely such an analysis.
101. In December 2010, upon information and belief, the defendant Perkins
unilaterally directed the Township Manager to hire a video-recording firm to record the audience
for his publicly acknowledged purpose of "litigation". In his opening announcement for the
December 6, 2010 Board of Supervisors meeting, Perkins advised that the meeting was being
video-recorded. Upon reason and belief, the hiring of the video-recording firm was designed to
silence the plaintiffs as the only known litigation at the time was that filed by them. The camera
was turned upon the audience and was designed to intimidate and deter those (the plaintiffs) who
might criticize the defendants.
102. Defendant Perkins stated that the continuation of the video-taping policy was
dependent upon its "effect" on the public in attendance. This practice of video recording all
meetings continues as of this date despite the fact that the Township has an audio recording
system installed in the Township's meeting room.
103. As noted earlier, Defendant Perkins began the 6 December 2010 meeting' with an
opening announcement (documented by official township minutes) that the meeting was being
video recorded. Former Supervisor (defendant) Jones and current Supervisor Reisinger
expressed their lack of foreknowledge of the decision to begin videotaping Township meetings
and questioned the purpose of the practice. Forced to recognize that his unilateral policy
38
decision to hire and employ the videotaping firm (with the requisite expenditure of public funds)
violated the Sunshine Act and the Second Class Township Code, defendant Perkins offered a
"curative" board resolution to backdate the Board's approval of the decision to video record
Township meetings. The Board approved the motion 2 - 1 with defendant Jones joining
defendant Perkins in the curative affirmation despite vocal citizen opposition that compared the
video recording to practices in non-democratic countries. These policies were in retaliation for
plaintiffs filing 1396. They further constitute an abuse of process.
104. Defendant Perkins later testified during 1396 depositions that he was surprised to
discover that the meeting was being video-recorded that night, did not know who hired the firm,
claimed that the reference to litigation was entirely open-ended and went so far as to suggest that
one of the plaintiffs had suggested the meetings be so recorded. All of his video-recorded
actions and statements on the evening of 6 December, 2010, contradict Perkins subsequent
testimony under oath.
105. The plaintiffs aver that the unprecedented practice of employing armed constables
at Township meetings was a deliberate artifice intended to intimidate and suppress the plaintiffs'
speech critical of the Township's elected and appointed officials. The practice was enacted
under defendant Perkins' tenure as Board Chairman. Again, there is no record that this policy
was authorized and enacted by lawful Board action. Nor is there any record that suggests that
the Board opposed the practice at any time. Despite citizen objections to the intimidating
presence of constables, the Township continued the practice. Aside from imposing a police state
mentality there was absolutely no justification for having law enforcement persons at the
meetings.
39
106. The Plaintiffs aver that the defendants have tailored official minutes to mask,
omit, and change the content of the plaintiffs' speech. In January and February 2011, Township
Manager (and defendant) Portillo and the Township's Recording Secretary (Denise Gembusia)
advised plaintiff Thompson that defendant Perkins was pressuring the Township's recording
secretary to change the minutes she prepared for the Township. Both the Township Manager and
the recording secretary later denied these admissions during their respective 1396 depositions.
Contrasting these denials, former Township Manager Livingston testified in his 1396 deposition
that Defendant Wyrick, in his capacity as a Township Supervisor, routinely altered, deleted and
changed township minutes. Moreover, the Recording Secretary testified that she had no
responsibility for the accuracy of the official minutes and that she merely signed whatever was
put in front of her for signature.
107. Defendant Perkins has a history of abusing other aspects of the Commonwealth's
Sunshine Law. This is illustrated by his selective refusal to recognize citizens who raise "points
of order" during meetings. One such occasion among several occurred on October 24, 2011.
During a public meeting plaintiff Thompson raised a point of order to address defendant Perkins'
ongoing comments that characterized a respected citizen's (a retired female professor from
Gettysburg College) comments and questions as "trash". Perkins has a documented history as a
supervisor of denigrating and maligning citizens whose comments he does not wish to hear. He
has gone so far as to publicly describe another highly respected citizen (a retired senior military
officer who holds a highly responsible business position) as mentally unbalanced.
108. On this occasion, and in response to Thompson requesting a "point of order",
Perkins declared that it was inappropriate for citizens to raise a "point of order". (Note: §710.1
of the Sunshine Act states: "Any person has the right to raise an objection at any time to a
40
perceived violation of this chapter at any meeting of a board or council of a political subdivision
or an authority created by a political subdivision.) At that point, defendant Breslin spoke up to
remind Perkins that the Sunshine Act allows for citizens to raise an objection. Perkins responded
by ruling Breslin "out of order". Perkins was sustained by defendant Smith who claimed there
was no violation of the Act as the supervisors were only offering comment. While accurate,
defendant Smith's comments ignored that fact that the Township Public Meeting Policy allows
citizens to comment on agenda items. In this instance, the plaintiffs were attempting to comment
on the agenda item listed as "Supervisor Reports". Plaintiffs aver that the Act applied and that
the defendants failed to provide a reasonable opportunity for the plaintiffs to comment on matters
of concern, official action or deliberation in accordance with § 710 of the Sunshine Law.
109. In November 2010, plaintiffs submitted editorial commentary to the Sentinel
Newspaper that was critical of Township policies and practices and defendant Perkins'
relationship to a law firm hired to provide the Township's solicitor services. Upon information
and belief, defendant Perkins immediately tasked defendant Smith to "monitor" local newspapers
and online forums for content critical of the Dickinson Township Supervisors. Moreover, he
used taxpayer dollars to fund this effort to intimidate and silence plaintiffs and the community at
large by signaling that "big brother" is watching. There is no record that this policy was
authorized and enacted by any lawful board action as required by the Second Class Township
Code (§ 603). The plaintiffs aver that Perkins actions were devoid of any legitimate legislative
intent and were intended to convey threats of legal action for the purpose of suppressing the
plaintiffs' rights to freely express themselves. Defendant Smith's vouchers confirm the
monitoring of local news media and social network forums.
41
110. The plaintiffs have been subjected to a deliberate "false light" misrepresentation
campaign by the defendants to libel, slander and defame them by the defendants in varying
combinations, at various times, all in an effort to coerce, intimidate and to silence the plaintiffs
for raising issues of public corruption and wrongdoing. Defendants have sought to destroy their
reputations and credibility in the community to influence and lobby the court and infect any
potential jury pool associated with the 1396 complaint. The defendants' campaign to present the
plaintiffs to Dickinson Township and the public at large in a "false light" has also been a
motivated by the defendants desire to retaliate against the plaintiffs for filing the 1396 action.
111. The plaintiffs' "activism" in Dickinson Township governance resulted in the
disclosure of two "incidents" that have been featured prominently in the local media and which
resulted in significant embarrassment for the defendants. The first incident dates to the Fall of
2005 where defendants Jones and Wyrick conspired to conduct "political firings" of Township
employees without the knowledge of the duly constituted Board of Supervisors, by having a
private citizen who was not the duly appointed solicitor contract for legal services without proper
Board authorization. Upon information and belief, all of this was done in a manner that denied
any semblance of due process or fairness and which suggested a number of public officials took
the law into their own hands. The plaintiffs' simple desire to expose wrongdoing in anticipation
that officials would correct the course of their misconduct and use common sense in the
administration of their offices lead to a litany of multiple years of retaliation leading to the
current litigation.
112. The second incident dates to the Summer of 2006. Upon information and belief,
defendants Jones, Perkins and Wyrick conspired to conceal responsibility for failing to hold
anyone accountable for an unauthorized liquidation of approximately $600,000 of Township
42
securities that resulted in an approximate loss of $15,000 to taxpayers. Township records verify
that the defendants Jones and Wyrick knew as early as the Spring of 2007 that the transaction
violated specific provisions of State statutes although the Township's own report, a joint effort
by the former solicitor and staff, omits any reference to the Township's specific internal
communications in this regard.
113. Plaintiffs aver that public officials including former defendants and some current
defendants have engaged in a growing litany of retaliations against the plaintiffs for the
plaintiffs' efforts to disclose official misconduct and to hold officials accountable for their
actions in these "incidents".
114. The plaintiffs specifically allege that the defendants (Perkins, Jones and Smith)
have used defendant Wyrick as a "shill" to attack (slander, malign and libel) plaintiffs at public
meetings where Wyrick has received preferential treatment from defendants Perkins and Smith
regarding the time limitations and content of his speech. These are actionable 1St Amendment
violations. The plaintiffs aver that defendants Perkins and Smith have turned a "blind eye" to
Wyrick's conduct by allowing him to publicly label the plaintiffs as purveyors of lies who have
disgraced their military uniform and who are motivated by pecuniary gain. This occurred within
the last year. Wyrick went so far as to suggest that the plaintiffs' military careers had prepared
them well for their propensity to lie.
115. The defendants have used Wyrick as an agent to defame and intimidate the
plaintiffs. While defendant Smith routinely instructs the public, in her role as parliamentarian, to
be courteous and respectful of others while speaking, she and defendant Perkins have enabled
Wyrick's slanderous comments by ratifying his misbehavior during his unfounded and
knowingly false accusations. Indeed, and upon information and belief, Perkins went so far during
43
one meeting in November 2011 to solicit vitriolic commentary from Wyrick. This stands in stark
contrast to the ease and frequency with which Perkins arbitrarily declares plaintiffs and others
out of order and/or disruptive on the basis of speech he does not wish to hear. By so doing,
defendant Perkins has denied plaintiffs their right to equal protections under the law as
guaranteed by the 14th Amendment as well as their rights under the First Amendment.
116. In 2010, defendant Wyrick posted several Internet public commentaries alleging
that plaintiffs engaged in illegal activities and profited at the expense of Township taxpayers. In
one positing, he labeled plaintiff Breslin as "the Bernie Madoff of Dickinson Township".
117. Upon information and belief, defendant Wyrick continued this theme, with the
concurrence and support of the defendants (Jones, Perkins and Smith), as he continued to
maliciously intimidate and libel the plaintiffs with the intent to discredit and silence them. On or
about June 9, 2011 the defendant Daniel Wyrick placed the following comments on the Internet
(Penn Live):
"It's way too much fun exposing the truth and annoying the hell out of Phil
Thompson and the malcontents, along with the Jim Joneses (er, Jonathan
Reisinger) Kool-Aid drinkers. Actually fellas, what's it worth to you? I'm a
reasonable guy. You might be able to buy me off like Trammell Crow bought
you off. BTW, how's your IRS bill?"
118. "Phil Thompson and the malcontents..." are known and identifiable as the
plaintiffs Breslin, Thompson, and Cunningham.
119. Wyrick's reference to the plaintiffs as "... Kool-Aid drinkers." is a libelous
reference to the plaintiffs as users of drugs (e.g. LSD).
120. Wyrick's reference to plaintiffs and Trammell Crow thusly: "You might be able to
buy me off like Trammell Crow(sic) bought you off.", is a libelous accusation that the plaintiffs
44
have engaged in some sort of criminal misconduct where they illegally accepted a criminal quid
pro quo in return for money.
121. On June 22, 2011, Wyrick posted a similar accusation:
"So fellas, now that the warehouse plans have 'final approval', why don't you tell
us how much 'payoff money you've received and how much more you'll receive?
I'm certain the IRS would be interested in this information, since you have no
non-profit shell organization called 'CCDT - Concerned Citizens of Dickinson
Township' to hide it. Oh don't worry, no one will forget how you've lined your
pockets at the expense of the Township residents!"
122. Upon information and belief, Wyrick's forum accusations were orchestrated by
the defendants and defendants' counsel. During 1396 depositions conducted in June and July
2011, and right after Wyrick's forum postings, defense counsel repeatedly raised issues about the
plaintiffs' role with the Concerned Citizens of Dickinson Township (CCDT) and the nature of a
private agreement reached between Trammel Crow and the CCDT. Upon reason and belief,
defense counsel's focus was designed to intimidate by raising the knowingly false specter of
criminal activity connected thereto. Plaintiffs' further belief and allegation is based upon
comments by the defendant Smith made before Duncannon Borough. Smith told Duncannon
officials that they "had nothing to fear" from plaintiff Thompson because records unlawfully
denied him by Smith and the Borough for many months had finally been supplied. Smith went
on to tell the Borough that Thompson was one of three persons suing Dickinson Township in
Cumberland County where the cost of litigation is "nearly $300,000".
123. The aforementioned allegations constitute violations of the plaintiffs' rights to be
free of "false light" misrepresentations and abuse of process. There is no reason for the
defendants to have run up legal fees of nearly $300,000 to defend against 1396. Such misconduct
constitutes an admitted abuse of process by the defendant Smith who has never even entered an
45
appearance in that litigation and yet is believed to have billed Dickinson Township close to
$100,000 for legal services rendered in 2011.
124. Upon information and belief, Wyrick also made public accusations on the basis of
1396 discovery information that was not available to the public at large, further suggesting the
extent to which the defendants have gone to abuse the legal process with the sole purpose of
intimidating and silencing the plaintiffs, a purpose ulterior to the expressed legal objectives in
1396 thus constituting an abuse of process under both federal and state law.
125. In June 2010, defendant Wyrick, in referring to the plaintiffs, asserted that
military officers who commit crimes put their military pensions at risk, an assertion repeated by
the defendant Morgenstern on June 30, 2011 during the deposition of plaintiff Breslin. These
circumstances demonstrate that the defendants (Perkins, Jones, Smith and Morgenstern) have
colluded with Wyrick to coerce and silence the plaintiffs. In this regard it is notable that at his
last meeting as a public official on 27 December 2011, defendant Jones repeated a common
public refrain by defendant Wyrick to the effect that the plaintiffs, by suing the Township, have
cast grave discredit on the retired military officer community. These unlawful efforts to cast the
plaintiffs in a "false light" are actionable as matters of state law indicating violations of
Pennsylvania's civil conspiracy tort law and laws prohibiting "false light" misrepresentations.
The misconduct of these defendants also constitutes an actionable abuse of process.
126. Additionally, defendant Perkins aided and abetted Wyrick in his effort to demean
and smear the plaintiffs in January 2012. On January 3, 2012, Perkins spoke as a public official
during a public meeting the plaintiffs did not attend. He accused the plaintiffs of acting
unethically in turning down their elected auditor positions. (The plaintiffs were elected to three
auditor positions on the basis of write-in votes. None of the plaintiffs sought the position to
46
which they were elected, and each had every right to decline the positions.) This situation had
occurred previously when the defendant Jones orchestrated another write-in campaign for the
plaintiffs in an effort to compromise them in 1396. After the second episode of this unlawful
activity the defendant Perkins suggested that Township residents file appropriate complaints with
the Commonwealth's Ethics Commission despite the fact that the plaintiffs are not public
officials. Following Perkins' "false light" suggestion, Defendant Wyrick falsely claimed that the
plaintiffs had not rejected the elected auditor post in a "sufficient, proper and timely manner".
These are violations of the plaintiffs 14'h Amendment rights and of their rights under state tort
law.
127. At a public meeting held January 4, 2012, defendant Perkins, again speaking as a
public official, used the words "lie" to describe the plaintiffs declaring that they were sinisterly
motivated by profiting at the expense of the Township. Perkins labeled plaintiff Breslin as
"spineless" and as a "spineless coward" in a diatribe that he attempted to hide behind his official
position. (Plaintiff Breslin was not in attendance.) Defendant Perkins went on to urge that the
Township "surcharge the spineless individual" (Breslin) claiming that Breslin knowingly filed a
frivolous complaint. Perkins comments and accusations were widely reported in local media.
The plaintiffs aver that Perkins' knowingly false accusations and hateful speech constituted a
flagrant abuse of power and position by a public official intended to silence, coerce and defame
the plaintiffs falsely casting them in a bad light. Perkins also sought to use this "false light"
misrepresentations in ulterior manner to subvert the proper intent and purposes of 1396.
128. Upon information and belief, Perkins purposefully used his position as a
Township official to subvert the 1396 litigation by making "false-light" claims and encouraging
citizens to pursue an investigation of the plaintiffs' ethics in order to intimidate and silence rather
47
than investigate any bona-fide wrongdoing. That defendant Smith remained silent throughout
these attacks speaks volumes about her collusion with Perkins. She allowed him to speak in a
totally unfettered manner that Perkins would not have tolerated from any citizen in his capacity
as Chairman of the Board of Supervisors.
129. Defendant Perkins is an "educated" man. As a dentist, he has publicly extolled his
"scientific" training. Consequently, it must be assumed that he knew full well that the plaintiffs
had not violated any aspect of the Commonwealth's ethics law and that the Ethics Commission
was created to address the ethics of public officials, not private citizens in any event. Defendant
Perkins intentionally cast the plaintiffs in a "false-light".
130. It also must be assumed that defendant Perkins, on the basis of his position as an
elected official, knew that Pennsylvania's Second Class Township code provides Township
auditors with the authority to surcharge public officials but not private citizens. Therefore,
Perkins' accusations of unethical behavior by the plaintiffs, his suggestion that citizens file
formal complaints with the Ethics Commission, and his advocacy for surcharge action against
the plaintiffs were motivated solely on the basis of silencing and intimidating the plaintiffs with
respect to their rights to petition and to seek redress as well as to retaliate for filing 1396.
131. The plaintiffs aver that defendants Wyrick, Zizzi and Jones conspired in March
2007 with a former township solicitor to insinuate that Thompson had impersonated a federal
law enforcement officer in 2006. The Township, through its solicitor, subjected him to an
unprecedented public "interrogation" during the conduct of a Board of Supervisors meeting after
Thompson raised issues that the defendants and the solicitor, had hoped to keep secret from the
public as well as from one of the three sitting supervisors. The solicitor asked a series of
questions of plaintiff Thompson that implied that Thompson had illegally impersonated a federal
48
law enforcement officer. The solicitor's accusations were baseless hyperbole designed solely to
silence Thompson's efforts to explore official activities that he perceived as deliberate
wrongdoing and abuse of authority.
132. Defendant Wyrick later claimed at a public meeting in December 2008 that
Thompson had admitted to a federal crime. Upon reason and belief, Zizzi subsequently reported
Thompson to the FBI for impersonating a federal law enforcement officer and for threatening
him and his family. Plaintiff Thompson did not learn of this action (reporting to the FBI) until
well after the filing of 1396, although as outlined in 1396, he was aware that Zizzi had petitioned
two local newspapers to investigate him for criminal wrongdoing. Upon information and belief,
Zizzi did not act unilaterally.
133. The defendants (Wyrick, Zizzi and Jones) knew that the accusations that Thompson
had impersonated a federal law enforcement officer were false. Each accusation was fabricated
with the objective of intimidating and silencing Thompson in order to deter him from raising
legitimate questions of public concern regarding governance, perceived abuses of power,
potential criminal activity, and accountability for public funds. By so doing, the defendants
proactively moved to deny the plaintiff Thompson's rights to expressive freedom and the equal
protections of the law to which all citizens of the United States are entitled.
134. That current and former township officials were aware that a former Township
official (defendant Zizzi) had been interviewed by the FBI relative to the false accusations
against Thompson suggests the extent to which they sought to silence and defame Thompson for
his discovery of the initial evidence that motivated the defendants to deny plaintiffs their 1St and
14th Amendment rights in the 1396 complaint. That evidence pointed to wrongdoing dating to
2005 and early 2006 relating to adverse and potentially illegal personnel actions and to official
49
actions to conceal an unauthorized liquidation of Township securities of more than $600,000 for
which no one has been accountable for either the liquidation or the subsequent loss of tax dollars.
These are continuing violations.
135. During litigation on the original 1396 complaint, the defendants, Dickinson
Township, by and through their counsel John Morgenstern, Esquire, (Morgenstern), and Smith
violated plaintiff Breslin's rights to privacy and his right to be free of abuse of process.
136. Under the 1st and 4t' Amendments to the United States Constitution, plaintiff
Breslin is entitled to enjoy his rights to privacy unfettered by government retaliation at the hands
of state actors and/or those that represent state actors. The defendants (Jones, Smith, Perkins and
Dickinson Township), by and through counsel, violated these rights.
137. The Township, by and through its attorney Morgenstern, unlawfully disseminated
Breslin's Social Security Number (SSN) in violation of Breslin's personal instructions to
defendant Dickinson Township's counsel Morgenstern. Plaintiff Breslin had specifically
cautioned defendant Morgenstern about disclosing his SSN explaining that he had been a prior
victim of very costly identity theft. These actions were undertaken seeking to harm, coerce and
otherwise retaliate against Breslin for seeking redress in a court proceeding and consequently
constitute further violations, as yet unremedied, of his 1 Sc Amendment rights. They further
constitute an abuse of process under both federal and state law.
138. Dickinson Township counsel Morgenstern sent defendant Smith a fax in which he
included Breslin's SSN. He knew that Breslin and Breslin's counsel expressly objected to any
dissemination of Breslin's SSN. Defendant Morgenstern did this knowing that to do so was
unlawful while also knowing that Smith was not entered an appearance on behalf of any party in
the original complaint in this matter. Dickinson Township's unnecessary dissemination was
50
meant to harass and intimidate Breslin. It also served absolutely no proper litigation purpose in
violation of Breslin's 14th Amendment procedural due process rights thus constituting an abuse
of process under both federal and state law.
139. No pervasive form of enforcement exists for the nation's Social Security laws and
consequently plaintiff Breslin's actions by and through the remedial statute 42 US C§1983 is
appropriate to enforce the subject violations of Breslin's federally guaranteed rights including
invasions of his federally guaranteed rights of privacy. This misconduct by the defendant
Morgenstern also constitutes an unlawful abuse of process under both federal and state law.
140. The misconduct of Dickinson Township's counsel in sending Breslin's SSN by
fax without authority, and Smith's act of receiving and keeping Breslin's SSN without authority
and notifying Breslin, may additionally be a criminal violation. At the very least, the acts civilly
violated Breslin's privacy rights under the 4th Amendment, violated the Social Security laws, and
also constituted another abuse of process in violation of plaintiffs' 1St and 14th Amendment rights
on the part of Dickinson Township.
141. The defendant Morgenstern has, in 1396, committed a litany of violations of the
plaintiffs' civil rights. Morgenstern's purposes are demonstrably scandalous, impertinent, and
vindictive to include falsehoods and the abuse of legal process as a vehicle to personally injure
the plaintiffs for purposes of causing them emotional harm and distress. This is a matter of
record.
142. In a 1396 filing, Morgenstern falsely accused a witness (Robert Livingston)
deposed by the plaintiffs of being a disgruntled former employee who "stole" township records.
This untrue and defamatory claim is entirely unwarranted and reflects defendants' motives. It is
designed to defame and intimidate an innocent citizen who gave deposition testimony that was
51
unfavorable to the defendants. The claim also is consistent with the defendants' longstanding
practice of character assassination of former officials and citizens who have uncovered official
wrongdoing dating to 2005. Further, it was intended to silence the plaintiffs by falsely
associating them with their scandalous and false claims of theft of public records.
143. The former employee (Robert Livingston) who now stands accused of having
stolen documents was the same employee who exposed wrongdoing reported in official audits
that former and current township officials sought to conceal from the public.
144. Upon information and belief, the plaintiffs aver that Morgenstern lied to the Judge
in the 1396 matter as he has to opposing counsel. The purpose of his false and injurious
misconduct was, in conjunction with certain other defendants, to destroy the reputation of and to
discredit the plaintiffs. Far more insidious was his intent to deter them from proceeding with
1396. This constitutes an abuse of the plaintiffs' right to petition. Morgenstern, as attorney for
Dickinson Township, is guilty of abuse of process by virtue of pursuing an ulterior plan using
1396 as a vehicle for unlawful ulterior purposes.
145. All of the claims made by the plaintiffs in this matter involved matters of public
concern by their very nature, since they addressed the broad public interest of the need for honest
and efficient government. Finally, defendant Morgenstern has publicly accused the plaintiffs of
wiretapping, of posing a threat to his personal safety, and of using their cells phones to transmit
deposition testimony to recipients outside the deposition room. As recently as January 3, 2012,
he accused plaintiffs' counsel of being "delusional" hoping to drive a wedge between the
plaintiffs and their attorney. These accusations are beyond the pale and can be rationalized only
on the basis that such claims were designed solely to intimidate, silence, create intentional
52
diversions, and otherwise deny due process. They also constitute, under both federal and state
law, an abuse of process.
146. Since July 2009, defendants Wyrick, Jones and Perkins have made repeated
assertions about plaintiffs' lack of character, monetary motive and the extent to which their
litigation has proved to be a grave embarrassment to the larger retired military officer
community. It begs credibility that these defendants would speak out on these matters that have
no discernible or legitimate legislative intent absent the support and encouragement of defendant
Morgenstern.
147. Finally, defendants Morgenstern and Smith failed to place a "litigation hold" on
Township records. Vubulake v USB Warburg). This failure was intentional in order to impede
discovery.
COUNTI
Plaintiffs against the Defendants Raymond Jones, Susan Smith, Allyn Perkins,
Daniel Wyrick and Dickinson Township for Violating Plaintiffs' rights to speak out on
matters of public concern and to petition for a redress of grievances under thelst
Amendment and to Enjoy the Equal Protections of The Law under the 14th Amendment.
148. Paragraphs 1 through 147 above are incorporated herein by reference.
149. The defendants, as alleged in factual detail above, are either state actors or acted
under badge of state authority by and through state actors to deny the plaintiffs their right to
speak out on matters of public concern, constituting a violation of the plaintiffs federally
guaranteed rights under the First Amendment.
150. Defendant Perkins, aided and abetted by defendant Smith, has usurped power for
his own arbitrary and capricious interests. He first sought to silence the plaintiffs in June 2009 by
spearheading a new public comment resolution that specifically precluded "undue interrogation"
of township officials. This new public resolution was passed by the Board of Supervisors under
53
the chairmanship of defendant Jones, and it was heavily criticized as unconstitutional by the
ACLU. Fearful of the threat of legal intervention by the ACLU, Perkins transitioned the policy
of no "undue interrogation" to a policy that prohibited any questioning of officials during public
meetings in 2010 when he became Chairman of the Board of Supervisors. Overall, the public
comment policy has changed at least five times under his chairmanship. In each situation, he has
changed it to suit his personal interests.
151. Township policy under Mr. Perkins was unequally and detrimentally applied to
the plaintiffs in violation of their 14th Amendment rights as alleged above. Others similarly
situated such as defendant Wyrick and Beth Jones were granted exceptions during the public
comment policy to include the right to ask questions of supervisors and others, and to speak for
essentially unlimited periods of time. These persons, particularly Wyrick also engaged in a pre-
textual series of attacks upon the plaintiffs designed to discredit them, intimidate them, and deter
them from exercising their federally guaranteed rights. (See Count VII for details.) The
defendant Smith, utilizing her role as Township solicitor and appointed parliamentarian joined
Perkins and Jones, among others in the violations of plaintiffs rights as more specifically
referenced in the Operative Fact portion of this complaint. Consequently, Smith is also liable for
denying plaintiffs the equal protections of the law.
152. Perkins' violations of plaintiffs' rights were vindictive and hateful as exemplified
by how he, Smith and the Township refused to recognize and allow oral or written questions and
by summarily declaring citizens out of order and disruptive on the basis of comments that they
did not wish to hear. Moreover, Perkins has refused plaintiffs on multiple occasions to be on the
business agenda for public meetings on the basis of the content of their speech alone. He has not
allowed the plaintiffs to petition another official in terms of moderating or countering any of his
54
own unilateral actions that are arbitrary and capricious decisions on his part. In essence, he has
blocked every avenue that should be available to citizens who have a right to hold their
government accountable. Perkins and Smith have been especially motivated by their desire to
avoid any scrutiny of legal vouchers in order to avoid explaining a perceived conflict of interest
in Smith Cartwright billings and to conceal a host of questionable charges and tasking for
services rendered by defendant Smith.
153. Perkins has been arbitrary and capricious in denying the plaintiffs the opportunity to
speak at public meetings on the basis of the content of their speech, and he has employed a wide
variety of methods to intimidate, silence and coerce. These include the unprecedented
employment of a video recording firm to film citizens in the audience seeking to intimidate and
deter those who wish to address the Board. He has sought to intimidate citizens by the presence
of armed constables. Moreover, he has presided over the fabrication of official minutes as well as
the approval of minutes that violate the Commonwealth's Sunshine Act. Finally, he has directed
the solicitor to monitor plaintiffs' Letters to the Editor and their comments and interactions on
social media. All of this has been designed to intimidate, coerce and otherwise silence the
plaintiffs in retaliation for their filing of 1396.
154. Perkins has admitted that he kept public records that were material to 1396 in a
secret location outside of the Township's office spaces, thus denying plaintiffs access to records
they sought. Plaintiffs further allege that attorney Morgenstern was and is aware of these facts.
Further, Perkin's deposition in 1396 contains numerous discrepancies indicating perjurious
misconduct ranging from feigned ignorance of public meetings being video recorded, to his
knowingly false claim that citizens were free to ask questions of any Township official without
55
preconditions, to his denial that he knew anything about plaintiffs' RTK requests. This
misconduct was in violation of plaintiffs' rights to petition for a redress of grievances.
155. Upon information and belief, Perkins, Jones, Smith, Morgenstern and Dickinson
Township unlawfully cooperated to retain Wyrick on the Township Planning Commission in a
manner that violated the Sunshine Act and which was intended to conceal knowledge of public
affairs from the public. It was an illegal agreement designed to literally purchase Wyrick's
silence in 1396. This was done immediately after the previous solicitor had written three letters
of warning to Wyrick, one of which described his behavior as "nefarious" and "subversive" to
the point that it placed the Township at risk.
156. Wyrick requested a hearing after being advised of his possible discharge. During
the July 2010 public meeting where the hearing was on the agenda, the defendants Township,
Perkins, Jones, and Smith denied citizens any opportunity to ask questions about the hearing in
advance and deliberately misled the public by stating that questions would be accepted during
the hearing. Smith and Perkins had negotiated an agreement with Wyrick and his lawyer in
advance. Wyrick had signed the agreement prior to the meeting, and the parties' orchestrated
Board acceptance of the Wyrick Agreement to justify their unlawful denial of a public hearing.
157. When the public, more specifically plaintiff Thompson objected to being denied
any opportunity to comment, Smith falsely mislead the plaintiffs and others by asserting that the
Supervisors (Perkins and Jones) had no basis for knowing that the planned public hearing would
not be held. Her own vouchers for legal services tell an entirely different story i.e., she charged
for developing a strategy to retain Wyrick on the Commission and to avert any need for a public
hearing. Further, while Township minutes falsely report that Chairman Perkins asked for public
comment and that none was offered, Perkins never invited public comment. As the "Operative
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Facts" make clear, the Wyrick Agreement was a quid-pro-quo to purchase Wyrick's silence per
1396.
158. Perkins and the Township engaged in a systematic effort to produce minutes of
public meetings that violated the provisions of the Commonwealth's Sunshine law by
maliciously distorting the content of plaintiffs' speech, by attributing comments to them that they
did not make, and by failing to report plaintiffs' protected speech in order to mislead the public.
159. The defendants engaged in this unlawful misconduct for two purposes. The first
was to retaliate against the plaintiffs for filing 1396 and for speaking out on a litany of issues
exposing public corruption in the Township. The second was to deter the plaintiffs from the
lawful exercise of their 1 st Amendment rights. During this process, and in order to facilitate their
unlawful retaliation as more fully specified above, the defendants acted to deny the plaintiffs the
equal protections of the law.
Wherefore plaintiffs demand judgment jointly and severally of the above named
defendants for the violations of their 1st and 14th Amendment rights as more specifically
described above together with damages for pain and suffering, embarrassment and humiliation,
punitive damages in the cases the individual defendants, damages for emotional distress, fees,
costs, attorney's fees, and such other relief as may be deemed appropriate.
COUNT II
Plaintiffs against Dickinson Township, John Morgenstern and Raymond Jones for
Abuse of Process as a Violation of plaintiffs 1st andl4th Amendment Rights and also as a
violation of Pennsylvania Tort law.
160. Paragraphs 1 through 159 above are incorporated herein by reference.
161. On or about July 2009, plaintiffs filed a lawsuit in the United States District Court
for the Middle District of Pennsylvania. It is docketed at 1:09-CV-1396.
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162. Defendants Morgenstern, Jones and Dickinson Township have intentionally acted
in violation of the plaintiffs' 1st and 14th Amendment rights by using and abusing legal process
in the 1396 litigation as a means for harassing and intimidating the plaintiffs in retaliation for
their exercising rights to petition for redress. The plaintiffs aver that the defendants
Morgenstern, Jones and Dickinson Township have repeatedly presented the plaintiffs in a "false
light" in an intentional, vindictive way seeking to harass and emotionally upset the plaintiffs and
to subvert the action in federal court at 1:09-CV-1396. Additionally, the plaintiffs aver that the
defendants withheld documents in violation of law and negligently failed to establish a
"litigation hold" on documents during "discovery" for the 1396 litigation. Such misconduct
constitutes an actionable abuse of process pursuant to the 1 st and 14th Amendments and violates
state law prohibiting the misuse of litigation for improper purposes.
163. Specifically, plaintiffs aver that defendants Morgenstern, Jones and Dickinson
Township filed motions in the 1396 litigation that contained knowingly false and misleading
allegations and then maliciously, upon being shown unequivocal evidence of this abusive
misconduct, persisted in leaving these falsehoods on the public record. The defendants sought
to demean and intimidate the plaintiffs by publicly accusing them of wiretapping violations,
posing a direct threat to the defendant's physical security, and raising the specter that the
plaintiffs risk their military pensions by engaging in the 1396 litigation.
164. The defendant Morgenstern has profusely and intentionally misused legal process
for ulterior and unlawful purposes causing the plaintiffs inordinate emotional distress,
unnecessary commitments of time, and the expenditure of considerable financial resources.
165. At a "discovery" conference on 4 February 2011, plaintiffs aver that defendant
Morgenstern told the plaintiffs and their attorney that he (Morgenstern) was speaking on behalf
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of the District Magistrate Judge. Morgenstern's statement was false. Plaintiffs aver that
defendant Morgenstern did this in order to inculcate a belief and incite a fear in the plaintiffs that
Morgenstern enjoyed special access to the Judge and his staff, and that the Judge gave him
permission to make certain decisions ex-parte. The conversation among counsel and the
plaintiffs was tape-recorded in its entirety, with the knowledge of all parties. The Court has
acknowledged its awareness and possession of the tape.
166. On February 7, 2011 the District Magistrate Judge held a "discovery"
teleconference with opposing counsel which was also duly recorded and transcribed by a court
reporter. During this teleconference, plaintiffs aver that defendant Morgenstern, intending to
discredit plaintiffs and plaintiffs' counsel, grossly misrepresented the truth to the Judge about
what Morgenstern had represented to plaintiffs' counsel (Attorney Bailey) on 4 February 2011.
He told the Judge that he had never told Attorney Bailey that he had been speaking to the Judge.
167. Belatedly, defendant Morgenstern realized that the February 4, 2011 conference
had been audio-taped and as a result, defendant Morgenstern filed what he euphemistically
termed an "Emergency Motion to Compel".
168. The plaintiffs aver that this so-called "emergency" motion was in reality not only
an effort to mislead the Court but also an extreme form of abuse of process by making
allegations of unlawful behavior on behalf of the plaintiffs (to include wiretapping), accusing
them of violating Pennsylvania law, and adding additional factual distortions about what
occurred during the February 4, 2011 conference.
169. This scandalous and impertinent motion still exists upon the record of the trial
court at 1396. Upon providing Attorney Morgenstern a copy of the 4 February 2011 audiotape
that documented his own words, the plaintiffs aver that Morgenstern had a duty to withdraw the
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"emergency" motion with its scurrilous and false accusations. To date, defendants Morgenstern,
Jones, and Dickinson Township have refused to withdraw this dishonest scandalous document.
170. In addition to the false accusations contained the "emergency" motion, Defendant
Morgenstern has publicly accused the plaintiffs of receiving stolen goods by having knowledge
of the contents of an email former solicitor Edward Schorpp (a defendant in 1396) sent to
defendants Jones, Wyrick and former Township Manager Robert Livingston. Defendant
Morgenstern directly accused Mr. Livingston of having stolen this public record despite the fact
that the email was sent voluntarily, by others, to Livingston at his home. In sum, Morgenstern
has demonstrated a pattern of making accusations against the plaintiffs without any evidentiary
support.
Wherefore plaintiffs demand judgment of the defendants Morgenstern, Jones, and
Dickinson Township for engaging in an abuse of process in violation of their 14th amendment
rights and additionally violating their First Amendment rights to petition for a redress of
grievances, and also for violating Pennsylvania state tort law prohibiting the abuse of process,
together with damages for pain and suffering, embarrassment and humiliation and damages for
emotional distress, fees, costs, litigation costs and fees, attorney's fees, punitive damages and
such other relief as may be deemed appropriate.
COUNT III
Plaintiffs Against Susan Smith, Duncannon Borough, and Dickinson Township for
Violating Plaintiffs' Rights to Petition for Redress under the 1st Amendment and to The
Equal Protections of the Law under the 14th Amendment.
171. Paragraphs 1 through 170 are incorporated herein by reference.
172. Defendant Smith has sought to block public access and plaintiffs' lawful access
under Pennsylvania's RTK laws to her law service billings to Duncannon Borough.
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173. Smith submitted false information to the Commonwealth's Office of Open
records in order to keep plaintiff Thompson from gaining access to public records in accord with
the Commonwealth's Open Records Law. Duncannon Borough, Perry County, Pennsylvania,
was complicit in this activity and thus denied plaintiff Thompson his 1 st Amendment rights. In
committing these wrongs, defendants Smith and Duncannon Borough (by Smith's actions)
became complicit in the denial of the plaintiffs' and particularly plaintiff Thompson's 1 st
Amendment right to seek a redress of grievances.
174. While reviewing vouchers over the course of several months in 2010 and 2011
that defendant Smith submitted for legal services to Dickinson Township, plaintiff Thompson
noted several "red flags" that suggested to him the possibility of "double" billings. Legal
vouchers are public records per the Commonwealth's RTK Law. Consequently, he used the
Commonwealth's RTK Law to obtain legal vouchers that defendant Smith had submitted for the
same time period to one of her other municipal clients, namely Duncannon Borough. Legal
vouchers are public records as per the Commonwealth's RTK Laws.
175. On May 4, 2011, plaintiff Thompson sent an RTK request to Duncannon Borough
asking for copies of defendant Smith's vouchers for legal services from June 2010 through
March 2011. Records obtained through the RTK process show that the Duncannon Borough
Manager forwarded Thompson's request to defendant Smith for action on May 5, 2011.
176. At the same time, the Duncannon Borough manager informed Thompson that the
Borough would need 30 additional days to process his request. However, government entities
must acknowledge RTK requests within five days as the Borough Manager did; otherwise, the
RTK requests are considered to be denied by inaction. If municipalities cannot meet the
requirement within five days, the RTK law specifies that they must advise the requestor they are
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exercising a 30-day extension provision in the law. The Borough manager's initial response
showed that she recognized Thompson' RTK request as legitimate and that she was sensitive to
the time criteria specified in the Law. Despite the acknowledgement of his RTK request, the
Borough then proceeded to deny his request by omission even though they knew it was a proper
request.
177. On August 10, 2011, defendant Thompson made another request for the identical
records, this time sending an email to the President of the Borough Council, Duane Hammaker,
and to the Borough member with oversight of legal affairs, Michael Bomberger.
178. On August 12, 2011, Mr. Bomberger forwarded Thompson's request to the
defendant Smith for action, noting that he "wanted to meet the timeline" and that he was
motivated by Hammaker's absence from the Borough at the time. Therefore, Mr. Bomberger
recognized Thompson's request as legitimate and demonstrated that he was aware of, and
sensitive to, the time constraints that the RTK law places on municipalities. As noted earlier,
municipalities must acknowledge RTK requests within five days; otherwise, they are considered
to be denied by inaction. Despite Mr. Bomberger's actions, the Borough again proceeded to deny
the request by inaction, an unlawful action by omission. The Borough unlawfully failed to make
a "good faith effort" to determine if the records requested were public records, and whether the
Borough had possession, custody or control of the requested records, and to respond as promptly
as possible under the circumstances existing at the time of the request (RTKL § 910).
179. On August 25, 2011, defendant Thompson sent the Borough Manager an email
with copies to Mr. Bomberger and to Mr. Hammaker. The email again requested the same
records. Thompson followed that with a registered letter postmarked August 26, 2011 for which
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he has a US Postal Service receipt of delivery on the next business day. Duncannon Borough
again, for now the third time, denied his request by inaction.
180. Thompson appealed Duncannon's refusal to the Commonwealth's Office of Open
Records. His appeals were docketed as AP 2011- 0811 (June 2011) and AP 2011-1293 (October
2011). In her rebuttals of Thompson's appeals, Smith argued on behalf of Duncannon Borough
that Thompson's appeals were untimely, but she did not contest the fact that the records he
sought (her own vouchers) were legitimate public records.
181. Smith also argued that Thompson had not addressed his request to the Borough's
Open Records Officer. This was a specious and hollow argument. Duncannon Borough's web
site does not identify an Open Records Officer for the Borough as required by law. Thompson
acted reasonably by directing his request to the Borough Manager. Moreover, Smith argued that
Thompson's letter of August 25, 2011 sounded like an appeal to the "governing board". This
claim completely obscures the reality that when Mr. Bomberger received the request on August
10, 2011, he properly forwarded it to Smith for action. He did this recognizing full well that
Thompson's request was entirely consonant with the intent and provisions of the RTK Law.
182. Smith's communications to the Commonwealth's Office of Open Records were
knowingly false, misleading, an abuse of process, and a violation of the plaintiffs' especially
Thompson's 1st Amendment rights because they were retaliation for his filing of 1396 and
particularly retaliation for his filing a motion to file a supplemental complaint at 1396.
Duncannon Borough approved Smith's actions, thus knowingly joining in an effort that
intentionally provided false and misleading information. The Borough's actions did design to
impugn the intent and purpose of the RTK law and discourage Thompson's pursuit of his rights
in 1396.
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183. When Thompson sent an RTK request to Duncannon Borough on December 22,
2011 asking for any and all correspondence between Smith and Borough officials relative to
Thompson's appeals to the Commonwealth's Office of Open Records, the Borough gave him
two fax cover sheets and withheld the actual records that the Borough Manager transmitted to
Smith in June 2011 along with Smith's responses. These records totaled eight pages. This failure
to provide the transmitted records points to intentional noncompliant actions by the Borough and
by Smith. These were intentional abuses and obstructions of process designed to deny the
plaintiffs, and especially Thompson, his he 1 st Amendment rights.
184. Thompson obtained copies of Smith's vouchers on November 28, 2011, nearly
seven months after his first request. He obtained these records only after advising the Borough
Manager to inform the Borough Council that he intended to petition the Perry County Court of
Common Pleas to instruct the Borough to comply and that the Borough would incur all court
costs.
185. The Duncannon Borough manager informed Thompson on January 3, 2012 that
she did not honor his first three requests for public records because defendant Smith did not
provide the records for Borough release. When Thompson finally obtained Smith's vouchers
from Duncannon, his concerns about the potential for duplicative billings were confirmed. Upon
reason and belief, circumstances strongly suggest that defendant Smith denied Thompson's
access to public records in order to hide her own questionable actions (duplicative billing) from
public disclosure. She also acted to deny the plaintiffs' and Thompson's 1 st Amendment rights to
petition.
186. Smith has further denied plaintiff Thompson his 1 st Amendment rights in her role
as solicitor for Dickinson Township. In August/September 2011 Smith conspired with
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Defendants Perkins, Jones and Portillo to mislead the Commonwealth's Office of Open Records
in order to deny Thompson his right to a public record. In her rebuttal on behalf of the Township
to an appeal that Thompson submitted pursuant to a Township denial of a RTK request for a
public record, Smith claimed that Thompson asserted the record had been removed from the
Township office. Thompson made no such claim. He simply asked for a very specific public
record. By implying that the record had been removed unlawfully, Smith validated the record as
one that was "public". Moreover, she not only provided false testimony but also sought to
discredit plaintiff Thompson and to silence and intimidate him in the process. By claiming that
the removal of the record from the Township posed serious legal implications, defendant Smith
sought to coerce and intimidate whomever it was that possessed the record. This was a deliberate
act of retaliation in violation of the plaintiffs' and especially Thompson's 1 st Amendment rights.
187. On December 14, 2011, plaintiff Thompson submitted a RTK request to
Dickinson Township for very specific records associated with the Township's actions subsequent
to receipt of his RTK requests for the period August 2009 through September 2011. Thompson's
requests sought copies of affidavits and verified statements submitted in response to actions by
the Township's Open Records Officer to search for public records in the possession of former
and current officials. This was a legitimate request consistent with the Commonwealth's RTK
Law. The Township denied the request by inaction constituting violations of plaintiffs and
Thompson's 1 st Amendment rights. This was another attempt by defendant Smith to deny
plaintiff Thompson his basic constitutional rights under the 1 st and 14th Amendments.
188. Defendant Smith sought to and acted to deny plaintiff Thompson access to her
legal billings to Duncannon Borough in order to conceal duplicative billings, and she knowingly
submitted false information to the Commonwealth's Office of Open records in order to keep
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plaintiff Thompson from gaining access to public records in accord with the Commonwealth's
Open Records Law.
Wherefore plaintiffs demand judgment of the defendants Smith, Duncannon Borough,
and Dickinson Township for the violation of their 1 st Amendment rights to petition for redress of
grievances and to expressive freedom together with damages for emotional distress, for pain and
suffering, for harassment and humiliation, together with fees, costs, attorneys' fees, and such
other relief as may be deemed appropriate.
COUNT IV
Plaintiff Phillip Thompson against the Defendants Susan Smith, Allyn Perkins, and
Dickinson Township for the Deprivation of His 1st and 14thAmendment Rights.
189. Paragraphs 1 through 188 above are incorporated herein by reference.
190. Defendants Perkins and Smith have repeatedly and unlawfully denied plaintiff
Thompson's request to be on the business portion of public meetings to discuss issues of public
concern such as corruption and tax dollar accountability.
191. In one such instance, plaintiff Thompson wished to raise questions about billings
to Dickinson Township by defendant Smith and the law firms with which she was associated. He
made these interests known to Smith, Perkins and others in October 2010 and in November
2011. His requests pertained to legitimate questions in the broad public interest focusing on the
disclosure of public finances, expenditures and accountability for tax-payer dollars. In short he
was engaging in protected speech.
192. Thompson was motivated by a supervisor's observation in mid-2010 that legal
expenses were alarmingly high (Smith told Duncannon Borough that the cost of defending 1396
was about $300,000 as of December 2011.) and that the budget-year allocation had been reached
by mid-year. Thompson also was concerned that some of these billings may have been
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duplicated to Duncannon Borough where defendant Smith also serves as a solicitor. He also had
concerns about a rumored conflict of interest involving defendant Perkins and one or more of the
law firms with which Smith was associated.
193. The defendant Smith, on her own behalf, and on behalf of Dickinson Township,
where she serves as solicitor, intentionally denied plaintiff Thompson access to the public agenda
in November 2010 in order to prevent him from exercising his right to speak during public
meetings on serious matters of public interest. Her denial was based solely upon the subject of
Thompson's lawful requests i.e. the content of his speech to examine the expenditure of tax
dollars that related to Smith and her law firms' public business. In sum, Smith unlawfully denied
Thompson's right to participate in protected speech because of her efforts to conceal her billings
from public examination. Further, the defendant Perkins denied Thompson's request by inaction
(i.e. by omission) in order to preclude speech that he did not wish the public to hear as it
specifically pertained to those billings.
194. While Smith's vouchers for legal services are detailed and extensive, they do not
show any charge for a full-page internal memo she drafted in response to Thompson's agenda
request. That memo, obtained through the RTK process, is redacted in its entirety. That Smith
did not submit a charge for the time spent on her memo suggests that she intended to conceal her
actions in a matter which was of extreme personal interest to her, i.e., to avoid accountability for
her services and billings.
195. Anticipating that Thompson would attempt to speak on November 15, 2010
within the brief time allowed for public comment, the defendants responded by subjecting him to
unprecedented acts of intimidation. This included the presence of two armed constables and a
court reporter to record his comments thereby subjecting him to a standard that was
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unprecedented and never applied by the Township before or since to a citizen in a similar setting
during public comment. In itself this is an equal protections violation under the 14th
Amendment. Moreover, Perkins moved to arbitrarily terminate Thompson's presentation during
the public comment portion of the meeting before his allocated time was up. He did this in order
to further avoid protected speech that he did not wish to hear. In doing so he violated
Thompson's rights.
196. In November 2011, Thompson made an unequivocal request to be on the agenda
to discuss defendant's vouchers following his discovery of duplicate charges on Smith's
vouchers for the Township and Duncannon Borough. The Township, again acting unlawfully,
took no action on his request.
197. The aforementioned actions on behalf of defendants Smith, Perkins and
Dickinson Township were unlawful, retaliatory and were in violation of plaintiff Thompson's
federally guaranteed rights under the 1 st and 14th Amendments to the U.S. Constitution.
Wherefore plaintiff Thompson demands judgment of the defendants Smith, Perkins and
Dickinson Township jointly and severally for the deprivation of his rights to petition for a
redress of grievances without suffering retaliation, and for the deprivation of his right to speak
out at a public meeting, and for his right to the equal protections of the laws, together with
damages for pain and suffering, embarrassment and humiliation, punitive damages as against the
defendants Smith and Perkins, damages for emotional distress, fees, costs, and such other relief
as may be deemed appropriate.
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COUNT V
Plaintiffs Charles Breslin and Phillip Thompson against defendants Susan Smith,
Portillo, Perkins, and Dickinson Township Laura Portillo, Allyn Perkins and Dickinson
Township for deprivation of their 1st And 14th Amendment Rights.
198. Paragraphs 1 through 197 above are incorporated herein by reference.
199. Plaintiffs cannot petition their government nor seek redress when they are denied
access to public records and information. This is particularly so when they are subjected to
intentional acts and omissions treating them differently than others similarly situated.
200. Dickinson Township by and through the actions of Portillo Perkins and Smith
have engaged in unlawful policy of burying, hiding, or ignoring the aforementioned plaintiffs'
RTK requests
201. Dickinson Township by and through the actions of Portillo Perkins and Smith
have engaged in unlawful policy of burying, hiding, or ignoring the aforementioned plaintiffs'
RTK requests. Among the more egregious violations of the intent and spirit of the RTK law are
the following which occurred in 2011:
A. In December 2011, defendant Portillo simply ignored a RTK request by plaintiff
Thompson that asked for records fundamental to 1396 and which were entirely consistent with
the intent of the RTK Law. She denied the request by inaction. This gross misconduct constitutes
a 1st Amendment violation of the plaintiffs' rights, an abuse of process and a denial of
Thompson's right to the equal treatment of the laws per the 14th Amendment.
B. In August 2011, defendant Portillo changed her practice of asking former
officials to search their computer records for public records in order to deny plaintiff Thompson
access to specific records he sought that also were fundamental to 1396. Portillo's decision not
to ask any former or current official to search their private records was an attempt to deny
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plaintiff Thompson's access to a record the defendants wished to conceal. This misconduct
constitutes a 1st Amendment violation of the plaintiffs' rights, an abuse of process and it
represents a violation of the 14th Amendment's right to equal treatment of the laws.
C. In September 2011, plaintiff Breslin submitted a request seeking a very specific
record. Defendant Portillo responded to his request just as she had to plaintiff Thompson's
request noted above. Defendant Portillo's behavior in this instance was egregious. First, she
denied the request on the basis that it was insufficiently specific despite the fact that Breslin
provided the subject, date and the name of one of the recipients. Moreover, rather than asking
former and current township officials to search their personal records as had been her practice,
she merely conducted what she described as a purportedly "reasonable" in-house search for the
record. This change in search methodology and process was an attempt to deny Breslin's access
to a record the Township wished to conceal and constitutes a 1 st Amendment violation of the
plaintiffs' rights, an abuse of process and a violation of the 14th Amendment's right to equal
treatment of the laws.
D. In August/September 2011, upon information and belief, defendant Smith
conspired with defendants Perkins, Jones and Portillo to mislead the Commonwealth's Office of
Open Records in order to deny Thompson his access to a public record mentioned in sub-
paragraph B above. In a rebuttal to an appeal that Thompson submitted following a Dickinson
Township denial of Thompson's request for a public record, Smith claimed that Thompson
asserted the record had been removed from the Township office. Thompson made no such claim.
Thus, Smith created the false impression that a public record had been removed illegally from
the Township office. By so doing, she sought to discredit both plaintiff Thompson and the person
who possessed the record, and she sought to raise the specter of legal action by implying
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wrongdoing. The record was never in the Township office. By her actions, Smith violated
Thompson's 1 st and 14th Amendment rights and is guilty of a gross abuse of process designed to
subvert 1396. It is important to note that Smith demonstrated a similar pattern of behavior when
she also misled the Office of Open Records regarding a RTK request that plaintiff Thompson
sent to Duncannon Borough where she also serves as solicitor.
E. In January 2011, defendant Portillo asked to meet privately with the plaintiffs in
order to advise them on how to overcome the Township's effort to deny them basic records. At a
meeting held in plaintiff Thompson's home, Portillo advised of recent new rulings by the
Commonwealth's Office of Open Records and provided specific wording to the plaintiffs for use
in their future RTK requests. In testimony for 1396 in August 2011, Portillo recalled the meeting
and the dinner but had no recall of the subject matter of the meeting. In December 2011,
Portillo's comments at a public meeting the plaintiffs did not attend were telling. While
discussing the risk of whether to ask former officials to search their computer records for public
records, Portillo advised that such requests would be "burdensome" and any decision to do that
would haunt the township officials to their graves. Those comments speak to motive to violate
plaintiffs' fundamental rights.
202. The defendants have engaged in this unlawful activity in concert with a pattern of
antagonism amounting to an abuse of process in the litigation in 1396 where discovery requests
were intentionally never complied with as part of an obvious coordinated effort where records
were actually hidden in violation of the law.
203. Smith and Portillo have usurped Board authority collusively in order to destroy
1396 in making these unlawful RTK denials. Smith acted as an extension of the defendant
Morgenstern's abuse of process actions despite the fact that in defendant Smith's case she has
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not even entered an appearance or been active on the Township's legal team. Despite these facts,
defendant Smith has billed the Township for legal services rendered in the 1396 matter.
204. The Board of Supervisors has purposely failed to exercise its authority to review
documents deemed "denied" to determine if public interest favoring access outweighs any
individual, agency or public interest that may favor restriction of denied documents (RTKL §
506c). As a result, the Board has unlawfully permitted Smith and Portillo to usurp Board
authority collusively in order to destroy 1396 in making these unlawful RTK denials. Smith
acted as an extension of the defendant Morgenstern's abuse of process actions despite the fact
that in defendant Smith's case she has not even entered an appearance or been active on the
Township's legal team. Despite the fact that Smith is not an attorney of record in the 1396
litigation, defendant Smith has billed the Township for legal services rendered in the 1396
matter.
205. Defendant Smith's false charges about documents being removed, her failure,
along with defendant Morgenstern's, to place a litigation hold on Township documents, her
unlawful actions to obstruct access to information about her billings to Duncannon Borough, and
the unlawful Borough actions as per her advice are all actionable as violations of the plaintiffs
1 st and 14th Amendment rights.
Wherefore plaintiffs Breslin and Thompson demand judgment of the defendants Smith,
Portillo, Perkins, and Dickinson Township for the violation of their 1 st and 14th Amendment
rights, for pain and suffering, for embarrassment and humiliation, for emotional distress, for
punitive damages against the individual defendants, together with fees, costs, attorneys' fees and
such other relief as may be deemed appropriate.
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COUNT VI
Plaintiff Paul Cunningham against the Defendants Smith, Perkins, and Dickinson
Township for the Deprivation of His 1st and 14th Amendment Rights.
206. Paragraphs 1 through 205 above are incorporated herein by reference.
207. On or about March 2011, at a Dickinson Township Supervisors' Meeting, the
solicitor, defendant Smith, initiated a discussion purportedly founded upon concerns that the
Township comply with the "Records Retention Act" which in fact turned out to be a proposal to
destroy Township documents. In so doing, she suggested a new agenda item on the subject well
after the Board had approved the agenda for the meeting, and she did so without consulting the
staff. None of this was provided by advance notice to the public.
208. When Cunningham attempted to address this matter, fearing the destruction of
documents needed in the federal litigation at 1396 (the federal case at 1396), among others, the
defendants Perkins and Smith once more arbitrarily and capriciously changed Township public
comment policy to preclude any discussion of the proposal, even though Cunningham was
explicit about his concern and was in the middle of speaking (engaged in protected speech) when
Perkins recessed the meeting. The defendants Smith, Perkins, and Dickinson Township
accomplished this unlawful purpose by hurriedly dissolving the Township meeting to an
unannounced exclusive closed-door meeting as soon as Cunningham raised his concerns about
the "destruction of records".
209. Cunningham was well within his protected speech rights to speak to this issue
because he was concerned the Township might destroy records related to 1396 and to various
RTK requests by the plaintiffs that the Township had denied and over which it demonstrated
considerable sensitivity. In addition, in violation of law, Dickinson Township, Smith, and
Morgenstern had not placed a legal hold on Township documents.
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210. The defendants emerged from the closed-door meeting and immediately
adjourned the public meeting, thus ensuring that neither Cunningham nor any other citizens
would have an opportunity to speak. These actions violated Cunningham's protected rights under
the 1 st Amendment.
211. At no time did Perkins indicate that he was deferring the remaining agenda items to
the following Supervisors' business meeting, nor did he indicate that additional public comment
time would be provided at the next meeting. These are actions required by the Sunshine Act and
other pertinent law. The actions by Perkins, Smith, and the Township were retaliatory and in
violation of Cunningham's 1 st Amendment rights.
Wherefore the plaintiff Cunningham demands judgment of the above-named defendants
Smith, Perkins, and Dickinson Township for the deprivation of his 1 st and 14th Amendment
rights, together with damages for pain and suffering, harassment and humiliation, punitive
damages in the case of the individual defendants, damages for emotional distress, fees, costs,
attorneys' fees, and such other relief as may be deemed appropriate.
COUNT VII
The Plaintiffs Charles Breslin, Paul Cunningham, and Phillip Thompson against
Defendants Daniel Wyrick, Allyn Perkins, Susan Smith and John Morgenstern for The
Violation of Their State Tort Law Rights to be Free of "false light" Misrepresentations,
Defamation, Slander and Libel and to be Free of the Pernicious
Effects of Civil Conspiracies.
212. Paragraphs 1 through 211 above are incorporated herein by reference.
213. The defendants have intentionally engaged in a campaign to present the plaintiffs
in a "false light". They have intentionally engaged in an effort to defame, slander and libel
plaintiffs by using defendant Wyrick as their "shill" to publicly suggest the plaintiffs engaged in
criminal wrongdoing and other nefarious activities. Wyrick in particular has been outspoken in
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public meetings and on social media claiming that the plaintiffs accepted a bribe from Trammel
Crow, Inc., a large warehouse developer, that they hid this from public awareness, that they lined
their pockets at the expense of Dickinson Township residents, and that they are "liars" who have
disgraced their military uniform. Defendant Jones repeated this last accusation in December
2011, insinuating that the plaintiffs have cast grave discredit on the larger community of retired
military officers.
214. While the defendants are entitled to 1st Amendment protections and to protection
under Pennsylvania's tort laws the applicable law demonstrates that public officials are not free
to make knowingly false and reckless statements in a public setting and in the presence of the
news media.
215 Wyrick is a former Dickinson Township supervisor and a member of the
Township's Planning Commission. He is an appointed Township official.
216. Defendant Jones was an elected Township Supervisor in December 2011, and
Perkins continues to serve as an elected Township official. Defendant Smith routinely instructed
citizens to be respectful of others when they speak during meetings, but she has consistently
remained silent whenever the defendants have made accusations and engaged in hateful ad
hominem attacks on the plaintiffs such as the above.
217. As noted in the operative facts, and despite the fact that he is not a defendant in
1396, Wyrick has been aware of discovery information and spoken about it publicly, further
demonstrating the extent to which the defendants have used him to mislead, obstruct, intimidate
and defame in order to destroy the basis for 1396 by destroying the plaintiffs reputation.
Defendant Morgenstern's collusion with Wyrick's viscous attacks was amply demonstrated by
75
Wyrick's knowledge of discovery information that was peculiar to plaintiffs Cunningham and
Thompson.
218. In each circumstance when Wyrick engaged in vicious, vindictive, egregious
personal attacks on the plaintiffs, the plaintiffs aver that defendant Smith had a duty to react (as
the Township's parliamentarian). By omission, she endorsed and ratified Wyrick's misconduct, as
did Perkins as the Township's Chairman of the Board of Supervisors. She consistently remained
silent and cooperatively extended to Wyrick freedoms of expression denied to the plaintiffs and
to other citizens when they were similarly situated as speakers before the Township.
219. The defendant Perkins, like the other defendants in this count joining in a civil
conspiracy to present plaintiffs in a "false light", has defamed, slandered, and libeled them by
publicly suggesting that the defendants have committed wrongdoing by refusing to serve as
elected Township auditors despite the fact that the plaintiffs did not seek the elected positions
and were under no obligation to accept the election results. Moreover, Perkins has publicly
encouraged citizens to file charges against the plaintiffs with the State's Ethics Commission,
knowing full well that the plaintiffs did nothing wrong and that the Ethics Commission was
created to regulate and enforce the ethical conduct of government officials as opposed to private
citizens.
220. At a January 4, 2012 public meeting, defendant Perkins characterization of
plaintiff Breslin as a "spineless coward" who should be surcharged for bringing a "frivolous"
action was made with full awareness that the surcharge provision of statute is designed solely for
public officials. That Perkins made these accusations in public settings and in the presence of the
news media suggests his intent to present the plaintiffs in a "false light". His efforts to defame,
libel and slander was intentional and was made with knowledge of their falsity.
76
221. Finally, defendant Morgenstern has publicly accused the plaintiffs of wiretapping,
of posing a threat to his personal safety, and of using their cells phones to transmit deposition
testimony to recipients outside the deposition room. As recently as January 3, 2012, he accused
plaintiffs' counsel of being "delusional" hoping to drive a wedge between the plaintiffs and their
attorney. These accusations are beyond the pale and can be rationalized only on the basis that
such claims were designed solely to intimidate, silence, create intentional diversions, and
otherwise deny due process. Defendant Morgenstern's knowingly false accusations constitute a
violation of the plaintiffs' State Tort Law Rights to be free of "false light" misrepresentations,
defamation, slander and libel and to be free of the pernicious effects of civil conspiracies.
222. The totality of these defendants' actions, particularly Wyrick, Smith and Perkins,
has been designed to destroy the basis for 1396 and to silence ongoing efforts by the plaintiffs to
seek accountability by intentionally destroying the reputation and good name of the plaintiffs.
Wherefore the plaintiffs demand judgment of the above-named defendants for the
violation of their rights to be free of "false light" misrepresentations, defamation, libel's, and
slanderous misconduct together with their right to be free of the pernicious effects of civil
conspiracies to promote these unlawful activities, together with damages for pain and suffering,
harassment and humiliation, punitive damages, damages for emotional distress, fees, costs,
attorneys' fees, and such other relief as may be deemed appropriate.
COUNT VIII
The Plaintiff Col. Charles B. Breslin against the Defendants Dickinson Township,
Susan Smith, and John Morgenstern for the Deprivation of His 4th Amendment Rights to
Privacy and As a Violation of Pennsylvania Law.
223. Paragraphs 1 through 222 above are incorporated herein.
77
224. On or about February 4, 2011 at a meeting chaired by attorney John Morgenstern,
held in the law offices of defendants' attorneys, Breslin informed defendant Morgenstern that
while he would provide his military and medical records (another act of abuse of process), he
would not provide his Social Security Number (SSN) to Morgenstern or any others for any
purpose. Breslin informed defendant Morgenstern that his sensitivity to dissemination of his SSN
stemmed from a very costly experience with identity theft. Breslin had strongly held reasons for
clearly stating his express objections to fears of the misuse of his SSN. He relayed those
concerns to Morgenstern personally in a polite but clear manner at a meeting in February 2011 in
the presence of his attorney and fellow plaintiffs. Morgenstern clearly understood that Breslin
had been the victim of very costly identify theft and did not wish to repeat that harrowing
experience.
225. Defendant Morgenstern, with malice aforethought, having been expressly
informed by Breslin and his counsel, acquired Breslin's SSN and intentionally misused it.
Defendant Morgenstern claims it was included on the back of a form that Breslin provided in
response to discovery requests. Breslin graciously defers to Morgenstern on this point not
knowing whether Morgenstern is right or wrong, or being truthful, but the issue is one of
dissemination not awareness. It is also common practice that only the last four digits of a Social
Security is used in any event out of respect for not disclosing the privacy connected thereto.
226 In material relevant terms Morgenstern was specifically noticed on the matter.
Whether Morgenstern came by the number unlawfully or accidentally is not relevant to his
intentional misuse of the number.
227. Knowing the law and having been expressly advised of Breslin's concerns,
Morgenstern then faxed Breslin's SSN to a third person, who is neither a party to nor an attorney
78
in the matter at 1396, namely defendant Smith. He did this knowing that Breslin had expressly
instructed him not to do anything of that nature. As a solicitor for a public entity defendant Smith
had a duty to redact this information, notify Breslin and/or his counsel, and also take action to
correct Morgenstern's error. She did neither, and it is a lead she did so deliberately with an intent
to injure and harass Col. Charles Breslin.
228. As attorneys for Dickinson Township, Morgenstern's and Smith's actions and
words speak for that Township.
229. The abuse and misuse of Breslin's SSN was deliberate and was in retaliation for
another lawsuit (1396) in which Breslin is a plaintiff against Dickinson Township among others.
The actions of these defendants directly violated Breslin's 4th Amendment right to privacy as a
matter of federal law and as a matter of Pennsylvania tort law.
Wherefore the plaintiff Breslin demands judgment of the defendants Morgenstern and
Dickinson Township for the deprivation of his rights to privacy both under the 4th Amendment
and as a Pennsylvania tort law claim, and also for the violation of his 1st Amendment rights
under the petition clause to be free of retaliation for seeking a redress of grievances (1396), for
the violation of Breslin's rights under the Social Security laws of the United States (utilizing 42
USC§1983 as a remedial statute), together with damages for pain and suffering, humiliation and
embarrassment, punitive damages in the case of the individual defendants, emotional distress,
fees, costs, attorney's fees, and such other relief as may be deemed appropriate.
COUNT IX
Plaintiff Thompson against Anthony Zizzi, Daniel Wyrick, Raymond Jones and
Dickinson Township for the violation of his 1st and 14th Amendment rights and for
instigating an FBI investigation on the basis of knowingly false accusations.
79
230. Paragraphs 1 through 229 above are incorporated herein by reference.
231. Defendants Wyrick, Zizzi and Jones conspired in March 2007 with a former
township solicitor to insinuate through "false light" misrepresentations and deformations that the
plaintiff Thompson had impersonated a federal law enforcement officer in 2006. The Township,
through its solicitor, at that time Mr. Edward Schorpp subjected him to an unprecedented public
"interrogation" at, of all places, a Township meeting, where Thompson had raised issues that the
defendants and its solicitor had hoped to keep secret from the public as well as from one of the
three sitting supervisors. Those secrets had to do with the disposition of public monies among
other things.
232. Wyrick had claimed at a public meeting in December 2008 that Thompson had
admitted to a federal crime. Upon information and belief, Zizzi subsequently reported Thompson
to the FBI for impersonating a federal law enforcement officer and for threatening him and his
family. As outlined in the 1396 litigation, Zizzi also had petitioned two local news organizations,
the Carlisle Sentinel and the Harrisburg Patriot-News to investigate Thompson for a federal
crime.
233. Thompson did not learn some of this information until the summer of 2011 during
depositions and particularly during the deposition of the defendant Zizzi.
234. The defendants knew that their accusations were false. Each was fabricated with
the objective of intimidating and silencing Thompson in order to deter him from raising
legitimate questions of public concern regarding governance, perceived abuses of power,
potential criminal activity, and accountability for public funds. In this regard their unlawful
actions which have spanned a continuous period of almost five years violate Thompson's rights
as a matter of federal law and violate his rights as a matter of Pennsylvania tort law.
80
235. By engaging in an actionable misconduct the defendants intentionally acted to
deny the plaintiff's rights under the 1 st Amendment petition clause and under the equal
protections of the law clause of the 14th Amendment. These are basic rights of all citizens under
the United States Constitution.
236. It is relevant that the FBI interviewed defendant Zizzi in his home to pursue
Zizzi's claims about Thompson's purported crimes. Normally, the FBI does not interview
citizens absent direction from a higher authority.
237. The genesis for all of the above is directly traceable to plaintiff Thompson's
public questioning of Township officials in 2007 regarding the January 2006 termination of
former supervisor August Ginter. Thompson specifically questioned why Ginter was forced to
resign for having purportedly committed a serious criminal act (using a vehicle to physically
harm "or worse" another) despite the fact that the State Police did not deem the matter even
worthy of an investigation.
238. Thompson also had questioned the basis of the authority for a lawyer, who was
not the Township solicitor at the time, to commit Township funds to a Pittsburgh law firm to
accomplish politically motivated firings. Finally, Thompson wanted to know why the Township
accepted legal advice to "so overwhelm" an employee that was under treatment for severe
depressive disorder so she would resign.
239. All of these matters constituted protected speech because they were matters of
public concern.
240. Defendants have continued to retaliate against Thompson for his questioning of
the Township's failure to acknowledge and account for the unauthorized liquidation of $600,000
of Township securities with a resultant loss of $15,000 to taxpayers and for his discovery of
81
serious inconsistencies and misrepresentation in the Township's own investigation of the
liquidation and loss. All of these efforts were legitimate matters of public concern.
241. Consequently the misconduct of the defendants Jones, Zizzi, Wyrick and
Dickinson Township were in violation of plaintiff Thompson's 1st Amendment right to speak
out, and to be free of retaliation due to his petitioning for a redress of grievances (in 1396) and
his 14th Amendment right to enjoy the equal protection of the laws i.e. he was treated differently
than others similarly situated.
Wherefore the plaintiff Thompson demands judgment of the above-named defendants for
the violation of his 1 st and 14th Amendment rights together with damages for pain and suffering,
harassment and humiliation, punitive damages, damages for emotional distress, fees, costs,
attorneys' fees, and such other relief as may be deemed appropriate.
R Z fully Submitted,
By: Don Bailey, squire
PAID# 23786
4311 N. 6th Street
Harrisburg, Pa 17110
717-221-9500
717-221.9400 Fax
February 6, 2012
82
VERIFICATION
I, 2 do hereby verify that the
aforementioned statements contained in the Complaint are true and correct
to the best of my knowledge, information and belief. I make this verification
knowing that it is unlawful pursuant to 18 P.A. C.S. §4904 both criminally
and civilly, to provide false information in a legal proceeding. I intend to be
legally bound hereby.
Col. (Ret.) Pau Cunningham
Dated: 01 64A---?
Y
VERIFICATION
I, LftL)90,J do hereby verify that the
aforementioned statements contained in the Complaint are true and correct
to the best of my knowledge, information and belief. I make this verification
knowing that it is unlawful pursuant to 18 P.A. C.S. §4904 both criminally
and civilly, to provide false information in a legal proceeding. I intend to be
legally bound hereby.
Q
Dated: l 9 I ??
VERIFICATION
1, 6?21k- #fi do hereby verify that the
aforementioned statements contained in the Complaint are true and correct
to the best of my knowledge, information and belief. I make this verification
knowing that it is unlawful pursuant to 18 P.A. C.S. §4904 both criminally
and civilly, to provide false information in a legal proceeding. I intend to be
legally bound hereby.
0
Col. (Ret.) Charles Breslin
Dated: a - /g -
DEASEY, MAHONEY, VALENTINI & NORTH, LTD.
By: Rufus A. Jennings, Esquire
Pennsylvania Attorney Identification No. 93030
1601 Market Street, Suite 3400
Philadelphia, PA 19103
(215) 587-9400
Attorney for Defendants
Dickinson Township, Raymond
Jones, Daniel Wyrick, Allyn
Perkins, Anthony Zizzi, and
Laura Portillo
In the Court of Common Pleas of Cumberland County, Pennsylvania
Civil Action - Law
Charles Breslin, et al.
Plaintiffs,
V.
Dickinson Townsip, et al.,
Defendants.
TO THE PROTHONOTARY:
c cm
rn CSJ 3
Docket No. 2012-722
c
-5
r ca -?
,
C) -
? ran
Notice of Removal
Pursuant to 28 U.S.C. §1446(d), Defendants, Dickinson Township, Raymond Jones,
Daniel Wyrick, Allyn Perkins, Anthony Zizzi, and Laura Portillo, file herewith a certified copy
of the Petition for Removal filed in the United States District Court for the Middle District of
Pennsylvania on February 24, 2012.
Respectfully submitted,
DEASEY, MAHONEY, VALENTINI & NORTH, LTD.
By:
s A. Jennings, Esquire
Attorney for Defendants
Date: .2/AI i,
Certificate of Service
I, Rufus A. Jennings, hereby certify that, on the date set forth below, 1 did cause a true
and correct copy of the foregoing Notice of Removal to be served on the following individuals
via first-class mail:
Don A. Bailey, Esquire
4311 North Sixth Street
Harrisburg, PA 17110
Susan J. Smith, Esquire
LAW OFFICE OF SUSAN J. SMITH
3009 Market Street
Camp Hill, PA 17011
Borough of Duncannon
428 High Street
Duncannon, PA 17020
ufus A. Jennings, Esquire
Date: ?11.vla
C@asd 3t2km 906W9LR3ocDasjTb 1 Fli d(002 2 PR"d tb44
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Charles B. Breslin, et al.,
Plaintiff,
V.
Dickinson Township, et al.,
Defendant.
Civil Action:
Removed From:
Court of Common Pleas
of Cumberland County
Notice of Removal
PLEASE TAKE NOTICE that Defendants, Dickinson Township, Raymond
Jones, Daniel Wyrick, Allyn Perkins, Laura Portillo, and Anthony Zizzi
(hereinafter "Defendants"), by and through their undersigned counsel hereby
remove this action from the Court of Common Pleas of Cumberland County,
Pennsylvania, to the United States District Court for the Middle District of
Pennsylvania pursuant to 28 U.S.C. § 1441, et seq., as follows:
1. On February 6, 2012, Plaintiffs, Charles B. Breslin, Paul J. Cunningham,
Phillip E. Thompson (hereinafter "Plaintiffs"), filed a Complaint in the Court of
Common Pleas of Cumberland County, Pennsylvania, docketed as Case No. 2012-
722, alleging claims for violations of civil rights under 42 U.S.C. § 1983 and the
- 1 -
Cfasd 3[2.27 0 09LF[SocUmorrhbN1 FHd(002Y42 PBgg(22) 44
First and Fourteenth Amendments to the United States Constitution. A true and
correct copy of the Complaint is attached hereto as Exhibit "A".
2. Defendant Dickinson Township was served with a copy of the Complaint
on or about February 21, 2012.
3. All Defendants who have been served with the Complaint consent to the
removal of this matter.
4. This Notice of Removal is filed within thirty (30) days after receipt of the
Complaint by Defendant Dickinson Township.
5. The United States District Court for the Eastern District of Pennsylvania
has subject matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. §§
1331 and 1367.
6. The proper venue for removal jurisdiction is the United States District
Court for the Middle District of Pennsylvania because it embraces the place where
the action is pending and the place where many of the alleged acts and omissions
took place.
7. Written notice of the filing of this Notice of Removal is being forwarded
promptly to Plaintiffs' counsel and the Prothonotary of the Pennsylvania Court of
Common Pleas of Cumberland County, in accordance with 28 U.S.C. § 1446(d).
8. Defendant does not waive any defenses available under Pennsylvania law
by filing this removal.
-2-
C@asd 3tHZv 08609LF13ocDomurt 1 Fffdd(00 ' 2 PR9g(83)i44
Respectfully submitted,
DEASEY, MAHONEY, VALENTINI & NORTH, LTD.
By
ufus A. Jennings, Esquire
Pennsylvania Attorney Identification No. 93030
1601 Market Street, Suite 3400
Philadelphia, PA 19103
Phone: (215) 587-9400
Fax: (215) 5879456
Email: rajennings@dmvnlaw.com
Attorney for Defendants Dickinson Township,
Raymond Jones, Daniel Wyrick, Allyn Perkins,
Laura Portillo, and Anthony Zizzi
Date:
-3-
C6asd 3t2Z%MW9LR3ocDo m bAM 1 FHdd002 2 PBgg4tf44
Certificate of Service
I, Rufus A. Jennings, hereby certify that, on the date set forth below, I did
cause a true and correct copy of the foregoing Notice of Removal to be served on
the following individual via first-class mail:
Don A. Bailey, Esquire
4311 North Sixth Street
Harrisburg, PA 17110
Susan J. Smith, Esquire
LAW OFFICE OF SUSAN J. SMITH
3009 Market Street
Camp Hill, PA 17011
Borough of Duncannon
428 High Street
Duncannon, PA 17020
ufus A. Jennings, Esquire
Date:
-4-
wJS 44 (Rev 12/07)
C@slsd 31:02;* W9LF3ocDlmw*N% 111 Fife (DOMM22 PBggd bbfl 1
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ufplcadings or other papers as required bylaw, except as provided
by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use oft he Clerk of .Dort for the purpose of Initiating
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
1. (a) PLAINTIFFS
Charles B. Breslin, Paul J. Cunningham, Phillip E. Thompson
(b) County of Residence of First Listed Plaintiff Cumberland
(EXCEPT IN U S. PLAINTIFF CASES)
(C) Attorney's (Firm Name, Address, and Telephone Number)
Don Bailey, Esquire, 4311 North 6th Street, Harrisburg, PA 17110
DEFENDANTS
Dickinson Township, Raymond Jones, Daniel Wyrick, Allyn
Perkins, Laura Portillo, Anthony Zizzi, Susan J, Smith, et al. p
County of Residence of First Listed Defendant Cumberland
(IN U S. PLAINTIFF CASES ONLY)
NO'T'E: IN LAND CONDEMNATION CASES, USE. THE LOCATION OF THE
LAND INVOLVED
Attorneys (If Known)
Rufus A. Jennings, Esquire, Deasey, Mahoney, Valentini &
11. BASIS OF JURISDICTION (Place an "x" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "x° in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
O I U.S. Government I!9 3 Federal Question PTF DEF PTF DEF
Plaintiff' (U.S. Government Not a Party) Ci!izan of This State 0 1 O I Incorporated nr Principal Place O 4 O 4
of Business in This State
0 2 U.S. Government O 4 Diversity Citizen of Another State 1-1 2 O 2 Incorporated and Principal Place O 5 n 5
Defendant
(Indicate Citizenship of Parties in Item 111) of Business In Another Stale
Citizen or Subject of a rl 3 O 3 Foreign Nation O 6 O 6
Foreign Country
O 110 Insurance PERSONAL INJURY
O 120 Marine O 310 Airplane
O 130 Miller Act O 315 Airplane Product
O f40Negotiable Instrument Liability
O 150 Recovery of Overpay,rrrrm O 320 Assault, Libel &
&Enforcement of.Judgment Slander
O 151 Medicare Act O 330 Federal Employers'
O 152 Recovery of Defaulted Liability
Student Loans O 340 Marine
(Excl Veterans) O 345 Marine Product
O 153 Recovery of Overpayment Liability
of Veteran's benefits O 350 Motor Vehicle
O 160 Stockholders' Suits O 355 Motor Vehicle
O 190 Other Contract Product Liability
O 195 Contract Product Liability L7 360 Other Personal
n 196 Franchise Iniurv
O 210 Lnml Condenmation
O 220 Foreclosure
O 230 Rent Lease & Ejectment
t7 240 Torts to Land
O 245 Ton Product Liability
O 290 All Other Real Property
PERSONAL INJURY
O 362Personal Injury-
Med. Malpractice
O 365 Personal Injury -
Product Liability
O 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
O 370 Other Fraud
O 371 Truth in Lending
O 380 Other Personal
Property Damage
O 385 Property Damage
Product Liability
441 Voting 7 510 Motions to Vacate
442 Employment Sentence
443 Housing/ Habeas Corpus:
Accommodations O 530 General
444 Welfare 535 Death Penalty
445 Amer. w/Disabilities - 0 540 Mandamus & Other
Employment 550 Civil Rights
446 Amer w/Disabilities - Ill 555 Prison Condition
Other
440 Other Civil Rights
610 Agriculture
620 Other Food & Drug
625 Drug Related Seizure
of Property 21 USC 881
630 Liquor Laws
640 RR & Truck
650 Airline Regs
660 Occupational
Safety/Health
Cl 710 Fair Labor Standards
Act
O 720 Labor/Mgmt Relations
O 730 Labor/Mgmt, Reporting
& Disclosure Act
O 740 Railway Labor Act
O 790 Other Labor Litigation
O 791 Empl. Ret. Inc.
Security Act
O 422 Appeal 28 USC 158
O 423 Withdrawal
28 USC 157
820 Copyrights
?'I 830 Patent
'1 840 Trademark
861 MIA I1395fy)
862 Black Lung(123)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
965 RSI (405(¢11
O 400 Stoic Reapportionment
r7 410 Antitrust
O 430 Banks and Banking
O 450 Commerce
r l 460 Deportation
i"1 470 Racketeet Inlluenucd and
Corrupt Organizations
i1 480 Consumer Credit
i-) 490 Cable/Sat TV
11 8toSelective Service
17 850 Securities/Commodities/
Exchange
O 875 Customer Challenge
12 USC 3410
D 890 Other Statutory Actions
11 891 Agricultural Acts
O 892 Economic Stabilization Act
n 993 Environmental Matters
O 994 Energy Allocation Act
rl 895 Freedom of Information
Act
n 900Appeal of Fee Determination
Under Equal Access
to Justice
O 950 Constitutionality of
State Statutes
O 463 Habeas Corpus-
Alien Detainee
O 465 Other Immigration
Actions
870 Taxes (U.S. Plains
or Defendant)
871 IRS-Third Party
26 USC 7609
V. ORIGIN (Place an "X" in One Box Only) tppprral toromDistract
O I Original ® 2 Removed from O 3 Remanded from 0 4 Reinstated or 0 5 ' Fransferred from (3 6 Multidistnct 71 7 lutlgc f
Proceeding State Court Appellate Court Reopened another district Litigation MOgistfaac
VI. CAUSE OF ACTION
41,SCCivil.Vre under whivit you are filing (Do not cite jurisdictional statutes unless diversity)
cause:
a claims under the First and Fourteenth Amendments
VII. REQUESTED IN 17711 CHECK IF THIS IS A CLASS ACTION DEMANDS CHECK YES only if demanded in complaint:
COMPLAINT: UNDER F.R.C.P 23 JURY DEMAND: I$ Yes O No
VIII. RELATED CASE(S)
IF ANY (See instructions): JUDGE Hon. Lawrence F. Stengel DOCKET NUMBER
09-cv-1396
02/24/2012
RECEIPT 0 AMOUNT APPLYING IFP JUDGE MAG JUDGE
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson 31?
Sheriff r
?4?,Ytn at i.yraflbp',?444 [.. IFt
Jody S Smith J
22 ts14
Chief Deputy
Richard W Stewart r{JMBERLANO U6UNT
Solicitor CENNSYL\/ANIA
Col. Charles B. Breslin
Case Number
vs.
Susan J. Smith (et al.) 2012-722
SHERIFF'S RETURN OF SERVICE
02/21/2012 02:44 PM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on
February 21, 2012 at 1444 hours, he served a true copy of the within Complaint and Notice, upon the
within named defendant, to wit: Laura Portillo, by making known unto herself personally, at 219 Mountain
View Road, Mount Holly Springs, Cumberland County, Pennsylvania 17065 its contents and at the same
time handing to her personally the said true and correct copy of the :m&e
ZRAWWGUfS-
02/21/2012 02:44 PM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on
February 21, 2012 at 1444 hours, he served a true copy of the within Complaint and Notice, upon the
within named defendant, to wit: Allyn Perkins, by making known unto Laura Portillo, Township Manager for
Dickinson Township at 219 Mountain View Road, Mount Holly Springs, Cumberland County, Pennsylvania
17065 its contents and at the same time handing to her personally the said true and correct copy of the
same.
HALL, D
02/21/2012 03:31 PM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on
February 21, 2012 at 1531 hours, he served a true copy of the within Complaint and Notice, upon the
within named defendant, to wit: Anthony Zizzi, by making known unto himself personally, at 177 Richland
Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him
personally the said true and correct copy of the same.
S N G HALL, DEPU -
02/21/2012 03:46 PM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on
February 21, 2012 at 1546 hours, he served a true copy of the within Complaint and Notice, upon the
within named defendant, to wit: Daniel Wyrick, by making known unto Sabina Ponjevic, adult in charge at
840 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the
same time handing to her personally the said true and correct copy of the same.
4??
AW TSHAL ,
02/21/2012 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search
and inquiry for the within named defendant, to wit: John Morgenstern, Esquire but was unable to locate
him in his bailiwick. He therefore deputized the Sheriff of Philadelphia County, Pennsylvania to serve the
within Complaint and Notice according to law.
Ccwr, : [E oo?- lia:
02/21/2012 02:44 PM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on
February 21, 2012 at 1444 hours, he served a true copy of the within Complaint and Notice, upon the
within named defendant, to wit: Dickinson Township, by making known unto Laura Portillo, Township
Manager for Dickinson Township at 219 Mountain View Road, Mount Holly Springs, Cumberland County,
Pennsylvania 17065 its contents and at the same time handing to her personally the said true and correct
copy of the same.
46i4SHLALLL, DEPUTY
02/21/2012 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search
and inquiry for the within named defendant, to wit: Duncannon Borough, but was unable to locate them in
his bailiwick. He therefore deputized the Sheriff of Perry County, Pennsylvania to serve the within
Complaint and Notice according to law.
02/22/2012 01:05 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on February
22, 2012 at 1305 hours, he served a true copy of the within Complaint and Notice, upon the within named
defendant, to wit: Susan J. Smith, by making known unto Amy Swartz, Paralegal for Susan J. Smith at
3009 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same
time handing to her personally the said true and correct copy of the same.
??- Al--
TIM BLA K, DEPUTY
02/23/2012 04:41 PM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on
February 23, 2012 at 1641 hours, he served a true copy of the within Complaint and Notice, upon the
within named defendant, to wit: Raymond Lockwood Jones, by making known unto himself personally, at
624 Burnt House Road, Carlisle, Cumberland County, Pennsylvania 17015 its contents and at the same
time handing to him personally the said true and correct copy of the same. .
W SHALL, OEPUTY
02/28/2012 02:14 PM - Perry County Return: And now February 28, 2012 at 1414 hours I, Carl E. Nace, Sheriff of
Perry County, Pennsylvania, do hereby certify and return that I served a true copy of the within Complaint
and Notice, upon the within named defendant, to wit: Duncannon Borough by making known unto Kathy
Smith, Billing Clerk for Duncannon Borough at 428 High Street, Duncannon, Pennsylvania 17020 its
contents and at the same time handing to her personally the said true and correct copy of the same.
03/01/2012 11:50 AM - Philadelphia County Return: And now March 1, 2012 at 1150 hours I, Jewell Williams, Sheriff
of Philadelphia County, Pennsylvania, do hereby certify and return that I served a true copy of the within
Complaint and Notice, upon the within named defendant, to wit: John Morgenstern by making known unto
Vera Sloan, Receptionist for Deasey Mahoney Valentini & North, Ltd. at 1601 N. Market Street, Suite
3400, Philadelphia, Pennsylvania 19103 its contents and at the same time handing to her personally the
said true and correct copy of the same.
SHERIFF COST: $214.75
March 16, 2012
SO ANSWERS,
RON R ANDERSON, SHERIFF
{C Coun ySuitc Sf'e !tt. lee-;.5otI. U:J.
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SHERIFF'S OFFICE OF CUMBERLANI OU COUNTY
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Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
Col. Charles B. Breslin
Case Number
vs.
Susan J. Smith (et al.) 2012-722
SERVICE COVER SHEET
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Service Details:
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o Category: Civil Action - Complaint & Notice
X Manner: Deputize
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Notes:
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Zone:
Expires: 03/07/2012 Warrant:
= Serve To: Final Service:
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Name:
John Morgenstern
Served:
Personally • Adult In Charge
Posted Other
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06 Primary Deasey Mahoney Valentini & North, Ltd. Adult In
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Address:
1601 N. Market Street, Suite 3400 arge
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Attorney/ Originator:
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a Name: Don Bailey Phone: 71 X32 ?542
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Notes / Special Instructions:
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Ix Now, February 21, 2012 I, Sheriff of Cumberland County, Pennsylvania do hereby deputize the Sheriff of Philadelphia County
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to execute service of the documents herewith and make return thereof according to law.
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Return To:
Cumberland County Sheriff's Office
0 One Courthouse Square
Carlisle, PA 17013 onny R Anderson, Sheriff
Col. Charles Breslin et. Al. IN THE COURT OF COMMON PLEAS OF
THE 41st JUDICIAL DISTRICT OF PENNSYLVANIA,
PERRY COUNTY BRANCH
Versus
Duncannon Borough
No. 2012-722 Cumberland Co.
SHERIFF'S RETURN
And now February 28 , 2012 : Served the within name Duncannon Borough
the defendant(s) named herin, personally at his place of residence in Duncannon Boro- 428
High St., Duncannon,
Perry County, PA, on February 28, 2012 at 2:14 o'clock PM
by handing to Kathy Smith, billing clerk 1 true and attested
copy(ies) of the within Complaint
and made known to her the contents thereof
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Sworn and subscribed to before me this o?Q
day of q , _026I1;2
Prothonotary
OMMONWEA TH OF PFNNSYI VnNIA
So answers
Deputy Sheriff of Perry County
NOTARIAL SEAL
JOY S. ZERANCE, NOTARY PUBLIC
YEW BLOOMFIELD BORO., PERRY COUNTY
MY COMMISSION EXPIRES MARCH 6, 2014