Mask litigation lingers as judge lets North East parent's Sunshine Act lawsuit continue

The federal government's national emergency over the pandemic ended on April 10.

The World Health Organization said on May 5 that the COVID-19 no longer qualifies as a global emergency.

Facemasks have largely disappeared from schools and elsewhere.

Their use has become a matter of personal preference.

In Erie County Common Pleas Court, however, litigation over the now-defunct mask mandates in schools is advancing — though on a narrow legal issue.

Changing situation: COVID-19 tests, vaccine, treatment still free in Erie, for now, as federal emergency ends

The litigation is proceeding even after parents in September lost two lawsuits in which they tried to force the removal of school board members in Millcreek Township and North East over their approval of masks during the COVID-19 outbreak.

The parents sued the two school districts again in November. This time they claimed the school boards for the districts violated the Sunshine Act in how the boards signed off on appeals of the lawsuits that sought their ouster.

A judge has tossed one of the secondary lawsuits, against the Millcreek School District.

The same judge is letting the secondary lawsuit proceed against the North East School District, but has limited what remains of the case to a single claim over a notification requirement in the Sunshine Act.

The ruling extends the litigation over pandemic-era facemasks in Erie County Common Pleas Court at the same time the two school districts and parents continue to battle over the two original lawsuits on appeal in state Commonwealth Court.

The two original lawsuits and the remaining secondary suit all touch on legal fees and who should pay them. The parents or the school districts will have to cover the costs, depending on the outcome of the court cases.

How did the anti-mask lawsuits get to this point?

The legal ordeal started more than a year ago.

A number of parents sued the Millcreek Township school directors over the masks in April 2022. A group of North East parents filed a virtually identical petition on May 2022. Erie Judge Erin Connelly Marucci was assigned he cases and consolidated them

The districts rescinded the mask mandates in early 2022, when the pandemic eased and state rules changed, but the parents sued anyway.

The parents argued the respective school directors should be ousted because, in requiring masks and quarantine through the beginning of 2022, they followed a September 2021 state Department of Health edict that the Pennsylvania Supreme Court ruled invalid on Dec. 10, 2021.

The parents filed the lawsuits under the auspices of a group called Erie County PA Parents Protecting Children. The lead petitioner in the Millcreek case is Troy Prozan. The lead petitioner in the North East case is Erin Beckes.

A lawyer from Lancaster County, J. Chadwick Schnee, represents the parents, including in the Sunshine Act lawsuits. The Knox Law Firm in Erie represents the school districts, whose solicitor, Timothy Sennett, is in the firm.

Neither Schnee nor Sennett responded to emails seeking comments for this story.

In response to the mask lawsuits, the lawyers for the school districts argued that the school directors did nothing wrong in requiring masks. The lawyers said the Pennsylvania School Code gives school directors authority to make decisions that concern student health.

Connelly Marucci agreed with the school districts. After holding a hearing in August, she ruled on Sept. 13 that the school directors acted properly under the school code. She repeatedly referred to an 1894 Pennsylvania Supreme Court decision that affirmed a school district's authority to require smallpox vaccinations. The ruling in the case, Duffield v. School District of the City of Williamsport, was never overturned and "remains good law today," Connelly Marucci said in her opinion.

Connelly Marucci ruled against the school districts in one respect. She rejected their requests that she order the parents to pay the districts' legal fees for defending against the lawsuits. Connelly Marucci said the lawsuits were not "frivolous," and that the districts' request for payment of the fees was "without merit."

In defeating the parents in Common Pleas Court over the masks, the school districts spent a total of $20,392 in attorneys' fees and legal costs — $15,328.50 for the Millcreek School District and $5,063.50 for the North East School District, according to district records.

Both sides appeal, and the parents sue again

The litigation continued following Connelly Marucci's decision. Both sides appealed to Commonwealth Court. The parents appealed Connelly Marucci's decision that tossed the lawsuits. The school districts appealed her decision that rejected their requests for legal fees.

The Commonwealth Court has yet to rule. In April, it ordered the parties to file the first set of briefs in the case by June 6.

With the original cases on appeal, Beckes and Prozan, the parents in the respective cases, filed their latest suits in Erie County Common Pleas Court in November and filed amended suits in December. The parents in those suits claimed the school districts violated the Sunshine Act. They said the school directors erred by, among other things, meeting in private executive sessions to decide whether to appeal Connelly Marucci's decision over the legal fees.

The parents demanded that Connelly Marucci order the districts to pay the parents' legal fees in the Sunshine Act lawsuits if she ruled that the school districts violated the open-meetings law.

The districts' payments of the legal costs are appropriate because of the districts' "willful or wanton disregard of the Sunshine Act," according to the parents' court filings.

The lawyers for the school districts argued that the school directors acted properly when they met in executive sessions to consider the districts' respective appeals to Commonwealth Court, which the districts filed on Oct. 10. The lawyers cited a section of the Sunshine Act that allows school boards and other public bodies to meet in executive session to discuss litigation.

The school districts also demanded that Connelly Marucci order the parents to pay the districts' legal fees for defending the lawsuits over the Sunshine Act if she tossed the suits, as the districts requested.

In having the fees imposed, the districts want to send the parents "a clear message: Pennsylvania courts cannot be used for political fodder," the lawyers for the districts said in a court filing.

How did the judge rule on the Sunshine Act lawsuits?

Connelly Marucci issued two rulings on the Sunshine Act lawsuits on May 19. One ruling concerned the suit against the Millcreek School District and the other concerned the suit against the North East School District.

Connelly Marucci tossed the suit against the Millcreek School District in its entirety.

The Sunshine Act allows for "agency business" regarding litigation to be conducted in an executive session, Connelly Marucci said in a seven-page decision. The Millcreek School District's filing of the appeal to Commonwealth Court, she said, "is a matter of litigation which falls under the exception to the Sunshine Act's public meeting mandate."

Connelly Marucci also rejected the school district's request that Prozan, the parent who sued, pay the district's legal fees in the Sunshine Act case. The Millcreek School District, Connelly Marucci said in the decision, "has failed to produce any evidence to substantiate their claim for award of reasonable attorney fees."

The judge issued a similar but not identical decision in the North East School District case over the Sunshine Act. The difference means that case can move forward.

Connelly Marucci said the North East school directors, like their counterparts in Millcreek, acted properly by dealing with the appeal to Commonwealth Court in an executive session. But she also found that the North East school directors, unlike their counterparts in Millcreek, erred in how the North East School District informed the public about its executive session over the appeal.

The Sunshine Act requires that school boards and other public agencies publicly announce that they met in an executive session and provide general reasons for why they did so. The reasons include discussions about personnel and litigation.

If litigation was a topic of an executive session, according to the Sunshine Act, the public announcement must include such details as name of the parties involved in the lawsuit and the docket number. As Connelly Marucci said, the requirements are set forth in a 1993 Commonwealth Court case involving the Reading Eagle newspaper: Reading Eagle Co. v. Council of the City of Reading.

According to Connelly Marucci's decision in the Millcreek case, the Millcreek School Board listed the required details when that board's president, Gary Winschel, made public announcements about the executive sessions at board meetings on Oct. 3 and 11. The judge cited the board minutes as proof. Winschel, according to the minutes, said the School Board at the executive sessions discussed the Troy Prozan case with docket number 10937-2022.

In the case of the North East School District, Connelly Marucci said the board failed to follow the Sunshine Act in its public announcement of the executive session. She cited the board minutes.

According to the minutes from Sept. 15, Oct. 6 and Oct. 20, Board President Nick Mobilia said at the start of the meetings that the school directors "had met in an Executive Session prior to this evening’s meeting concerning areas permissible under Act 84 which include confidentiality issues protected by law, student issues, personnel, legal matters, and other matters relevant to the operation of the district."

In her seven-page decision in the North East case, Connelly Marucci said, "This announcement fails to detail general nature of litigation including the title and docket number required by law."

Connelly Marucci let stand the claim in the lawsuit against North East that the school directors violated the Sunshine Act due to the deficient public announcement on the executive session.

What happens next in the North East case over the Sunshine Act?

The ruling does not invalidate the North East School District's appeal of the fee issue to Commonwealth Court, Connelly Marucci said in her decision. But ruling allows Beckes, the parent in in the North East case, to seek legal fees and costs from the district related to the Sunshine Act lawsuit.

Beckes claims in the suit that she is entitled to the fees and costs because the North East School District acted with "willful or wanton disregard of the text and intent of the Sunshine Act by failing to announce the reasons for holding executive sessions as required."

Because that claim survived, it can be the subject of further litigation.

Contact Ed Palattella at epalattella@timesnews.com. Follow him on Twitter @ETNpalattella.

This article originally appeared on Erie Times-News: North East parent's lawsuit over masks, Sunshine Act survives in court