SUNBURY - The attorney representing Northumberland County Commissioners Vinny Clausi and Stephen Bridy and the county in a lawsuit filed against them by David F. Kaleta, of Shamokin, is seeking the dismissal of the complaint with prejudice in federal court.
Attorney Robert G. Hanna Jr. of the law firm Lavery Faherty Patterson, Harrisburg, filed a motion Wednesday in U.S. District Court for the Middle District of Pennsylvania requesting the suit be dismissed because Kaleta doesn't state a viable First Amendment retaliation claim in the complaint. Hanna also claims in his motion that Northumberland County Judge Charles Saylor erred by granting a preliminary injunction that allows Kaleta access to the Anthracite Outdoor Adventure Area (AOAA), while also ruling that Bridy and Clausi violated the Sunshine Act by taking action to ban him from the property.
Hanna is requesting Judge John E. Jones and Magistrate Judge Martin C. Carlson to hear the defendants' claims in federal court.
"We are asking the federal court to take a look at the transcript from the hearing because we think Judge Saylor made a mistake," Hanna said. "We are asking the judges to review our motion and make a recommendation, which becomes final unless one of the parties opposes it and requests a hearing. After that, we have two weeks to file a supporting brief and then the other side has 15 days to respond to our motion."
'No violation'
Kaleta's two-count complaint was filed in the Northumberland County Court of Common Pleas on Sept. 17 and removed to federal court Oct. 3.
In the five-page motion to dismiss the plaintiff's complaint, Hanna states, "A review of the record shows conclusively that no Sunshine Act violation occurred and that a letter by Patrick A. Mack (county planning and industrial development director) attached to the plaintiff's complaint, and the subsequent newspaper report were issued in error."
He adds, "A Sunshine Act violation does not in and of itself establish a violation of federal law."
Hanna said the case was removed to federal court because Kaleta alleges a First Amendment retaliation claim, but doesn't state a viable claim.
In order to state a First Amendment claim, Hanna said the complaint must allege a specific activity, including dates and times, and the precise nature of the speech that Kaleta claims was protected.
Hanna said, "The complaint doesn't detail any of the circumstances that demonstrate notice to any of the defendants of the specifics of the claimed protected First Amendment activity such that they can properly detach themselves in this matter.
"None of the basic pleading requirements for a First Amendment retaliation claim have been pled. Moreover, the plaintiff cannot recover punitive damages against the county or commissioners acting in their official capacity as a matter of law. As to the individual capacity claims, Clausi and Bridy raise qualified immunity as a defense."
Criticized Saylor
Bridy and Clausi have publicly criticized Saylor for his ruling and believe the judge should have recused himself from the case.
Clausi previously said he knew Saylor would rule against the county because commissioners denied raises for court secretaries and removed the Court Appointed Special Advocates program from the courthouse.
Clausi also was critical of Commissioner Richard Shoch for speaking with Kaleta and his attorneys, Kymberley Best and Timothy Bowers, a few days before Kaleta filed his lawsuit.
Shoch admitted to Clausi he spoke with Kaleta and his attorneys and had a suspicion that a lawsuit would be filed.
Shoch is not a defendant in the suit because he didn't approve of the letter sent to Kaleta banning him from the AOAA.
When asked to comment Thursday about Hanna's motion to dismiss the lawsuit, Best said, "We will be filing an amended complaint either tomorrow (Friday) or Monday in response to the latest filing by the defense. I'm more than confident that Honorable Judge Saylor's ruling regarding the Sunshine Act will be upheld in federal court."
In a six-page order issued Sept. 28 after a preliminary injunction hearing two days earlier, Saylor said a decision by the county that banned Kaleta from the property should not be enforced, pending any further order of the court. Also, he said the county's decision represents a violation of the Sunshine Act that requires county business be deliberated at a publicly advertised meeting.
Kaleta's suit claims the action against him represents First Amendment retaliation because he has been critical of the off-highway vehicle park's development.