WRIGHT CROFT v. DONEGAL TOWNSHIP

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KATHLEEN WRIGHT CROFT, SAMUEL )

E. CROFT JR., )

) 2:20-CV-01430-CCW

)

Plaintiffs, )

)

v. )

)

DONEGAL TOWNSHIP, RICHARD )

)

FIDLER, TAMMI IAMS, RICHARD

)

MARTIN, LANE TURTURICE, )

)

)

Defendants.

)

MEMORANDUM OPINION AND ORDER

Before the Court is the Motion for Preliminary Injunction filed by Plaintiffs Kathleen

Wright Croft (“Ms. Croft”) and Samuel E. Croft Jr. (“Mr. Croft”) (collectively, “Plaintiffs”). ECF

No. 25. Because the Court concludes, based on the record before it, that Plaintiffs have not carried

their burden to demonstrate a likelihood of success on the merits on any of their claims, see Reilly

v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017), Plaintiffs’ Motion will be DENIED.

I. Background

A. The Parties

Plaintiffs are residents of Defendant Donegal Township, Pennsylvania (“Donegal” or “the

Township”). ECF No. 75 at ¶ 5. In 2017, Ms. Croft was elected to a four-year term on Donegal’s

Board of Supervisors. ECF No. 59 at ¶ 3. Her term as a Supervisor expires at the end of December

2021. Id. at ¶ 4. Both Ms. Croft and her husband Mr. Croft voted for Ms. Croft in the 2017

election. ECF No. 75 at ¶ 8.

Donegal is a Township of the Second Class under 53 P.S. § 65101, et seq., and is governed

by a five-member Board of Supervisors (collectively, the “Board”). ECF No. 59 at ¶¶ 1, 5. Ms.

Iams, Mr. Fidler, and Mr. Martin are also elected members of Donegal’s Board. Id. at ¶ 5. Ms.

Iams was elected in 2017 along with Ms. Croft. Id. at ¶¶ 3, 6. Mr. Martin and Mr. Fidler were

elected in 2019 and took office in January 2020. Id. at ¶ 7. The fifth member of the Board, who

is not a party to this litigation, is Mr. Edward Shingle (“Mr. Shingle”). Id. at ¶ 5. Because

Township residents voted in 2020 to reduce the Board from five members to three, the terms of all

current Supervisors will expire at the end of 2021. ECF No. 76 at ¶ 6–7. Mr. Turturice was

appointed by the Board to serve as Township Solicitor at the annual reorganizational meeting held

on January 6, 2020 (the “Reorganizational Meeting”). ECF No. 59 at ¶ 9.

B. Relevant Procedural History

Plaintiffs filed their original, four-count complaint on September 22, 2020, ECF No. 1, and

moved for a preliminary injunction on October 12, 2020. ECF No. 4. After the Court held a status

conference with the parties regarding Plaintiffs’ original motion for preliminary injunction, ECF

No. 20, Plaintiffs filed an amended complaint on November 3, 2020, ECF No. 24, and the present,

renewed Motion for Preliminary Injunction, ECF No. 25, on November 6, 2020. The parties then

engaged in a period of limited discovery related to Plaintiffs’ Motion, which closed on January 6,

2021. See ECF No. 36. On January 14, 2021, Plaintiffs filed a consent motion for leave to further

amend their complaint, ECF No. 49, which the Court granted, ECF No. 50, and Plaintiffs filed the

operative Second Amended Complaint that same day. See ECF No. 51.

In their five-count Second Amended Complaint, Plaintiffs make claims against Defendants

under 42 U.S.C. § 1983 and state law. Specifically, Plaintiffs allege that Defendants: (1)

unlawfully retaliated against Ms. Croft for her outspoken views on local political matters, in

violation of the First Amendment (Count I); (2) unlawfully discriminated against her because of

her political views, in violation of the Fourteenth Amendment’s Equal Protection Clause (Count

II); (3) unlawfully “deprived” Plaintiffs of their votes by impeding Ms. Croft’s ability to perform

her duties as an elected Supervisor for Defendant Donegal Township, in violation of the Fourteenth

Amendment’s Due Process Clause (Count III); (4) violated Pennsylvania’s Second-Class

Township Code (Count IV); and (5) violated Pennsylvania’s Sunshine Act (Count V).

In their Motion for Preliminary Injunction, Plaintiffs are seeking

[A]n Order preliminarily enjoining Defendants from directly, indirectly or in any

way excluding Plaintiff, Kathleen Wright Croft, from full participation in the affairs

of the Board of Supervisors of Donegal Township; mandating that the “chain of

command policy” be dissolved forthwith and that all deliberations of the

Supervisors, whether in executive and/or in public session, include Plaintiff,

Kathleen Wright Croft; directing that Plaintiff, Kathleen Wright Croft, be granted

free uninterrupted and unfettered access to all books and records of Donegal

Township; and declaring that Plaintiff, Kathleen Wright Croft, be entitled to enjoy

the same rights, privileges and emoluments of her elected office as are the other

four members of the Board of Supervisors of Donegal Township.

ECF No. 25 at 2. The Court held an evidentiary hearing on Plaintiff’s Motion on January 27, 2021.

See ECF Nos. 63, 73. In advance of the hearing, the parties submitted certain stipulations of fact,

ECF No. 59, as well as proposed findings of fact and conclusions of law, ECF Nos. 57–58. At the

hearing, Plaintiffs called Defendant Richard Fidler (“Mr. Fidler”), Defendant Richard Martin

(“Mr. Martin”), Defendant Tammi Iams (“Ms. Iams”), Defendant Lane Turturice (“Mr.

Turturice”), and Plaintiff Kathleen Wright Croft (“Ms. Croft”) to testify; Defendants called Judith

Taylor (“Ms. Taylor”). See ECF Nos. 53, 60. Each witness testified credibly. Following the

hearing, the parties submitted amended findings of fact and conclusions of law, ECF Nos. 75–78,

and Plaintiffs’ Motion is now ripe for review.

C. Summary of Relevant Facts

Plaintiffs’ claims arise from the fractious relationship between Ms. Croft and the alleged

“majority” faction of Supervisors (the “Board majority”). According to Plaintiffs, after the 2019

election, Defendants Ms. Iams, Mr. Martin, and Mr. Fidler formed the “majority” faction of the

five-member Board, and in conjunction with Mr. Turturice, who was appointed by the majority to

serve as Township Solicitor, used their position to oppress and discriminate against fellow

Supervisor Ms. Croft for publicly disagreeing with them over issues of Township governance.

See, e.g., ECF No. 26 at 1–2. Plaintiffs claim that this oppression consisted of shutting Ms. Croft

out of Board discussions and denying her access to important Township information. Id. Plaintiffs

further allege that Defendants’ actions had the effect of “depriving” Plaintiffs of their votes by

preventing elected representative Ms. Croft from participating fully in the affairs of the Township.

Id. at 10–11. Finally, Plaintiffs claim that Defendants have violated Pennsylvania’s Second Class

Township Code, 53 P.S. §§ 65101, et seq., and Sunshine Act, 65 Pa.C.S. §§ 701, et seq. Id. at 2–

4.

Here, the record shows that, although Ms. Croft has not always had access to information

at the time and in the manner of her choosing, see, e.g., ECF No. 75 at ¶¶ 54–57, 90–91, she is

able, like the other Supervisors, to go to the Township offices, inspect records, discuss issues with

her constituents, communicate with Township employees, and voice her opinion at public

meetings and in executive session. See, e.g., ECF No. 76 at ¶ 162–165, 186–190, 192, 199.

Plaintiffs point to the Township’s so-called “chain of command” policy (allegedly embodied in

Resolution 2019-2)1 as having been used to silo Ms. Croft from Township information. See ECF

No. 26 at 5 (arguing that “the policy has had the effect of eliminating direct communication

between Supervisor Wright Croft and the Township's employees”). However, Resolution 2019-2

1 See Pl’s Ex. 66. Enacted by the 2019 Board of Supervisors, Resolution 2019-2 appoints individual

supervisors to oversee township departments and purports to establish “rules and regulations” governing

those oversight duties and regarding supervisor and employee access to certain Township information and

computer terminals. Defendants contend that Resolution 2019-2 had expired by the end of 2019, if not

sooner. See ECF No. 76 at ¶¶ 129–30.

was not reenacted in 2020 nor was any official action taken to enforce it in 2020. See ECF No.

76. at ¶ 142. That said, Township policy, which directed employees to route questions and issues

to the Board through the Supervisor appointed to oversee an employee’s department,2 did not

prevent Ms. Croft from speaking with township employees. See id. at ¶¶ 162–164. Finally,

although Ms. Croft was not appointed to oversee a Township department in 2020, she held such

positions in 2018 and 2019. See id. at ¶¶ 13–15.

Additionally, with respect to negotiations between the Township and the Donegal

Township Police Association regarding renewal of the police union contract, Ms. Croft conceded

that, although she wanted more regular and more detailed updates on the process, by the time the

new contract came up for a vote in December 2020, Ms. Croft had been provided with the

information she required and sufficient time to study it before casting her vote. See id. at ¶¶ 104–

108. Indeed, Mr. Turturice provided periodic updates to the full Board over the course of the

negotiations. See id. at ¶¶ 98–100. Relatedly, although Plaintiff claims to have been frustrated by

Mr. Turturice in her attempts to obtain a copy of a Non-Disclosure Agreement (“NDA”) signed by

Mr. Fidler and Ms. Iams as part of the police union contract negotiations, Mr. Turturice offered to

show Ms. Croft the document at his office or bring it to the Township building for her review. See

id. at ¶¶ 64–70, 85. Ms. Croft, however, declined Mr. Turturice’s offers. See id. at ¶ 95.

Next, Plaintiffs contend that the Defendants have used legal and administrative

proceedings to harass her. See, e.g., ECF No. 51 at ¶¶ 27, 37, 44–49. The first lawsuit, filed by

Mr. Turturice on behalf of the Defendant-Supervisors, was brought to enjoin the 2019 board from

2 This policy serves the purpose of streamlining communication, helping to avoid potential Sunshine Act

violations (i.e. a quorum of a board of supervisors deliberating and/or taking action on agency business

outside of a public meeting), allowing the overseeing supervisor to conduct an investigation of personnel

issues while preserving the ability of the remaining supervisors to serve as impartial decisionmakers, and

avoiding a situation where different individual supervisors provide conflicting responses to a given issue

or question. See ECF No. 76 at ¶¶ 145, 147.

entering into a contract with the Police Association dues to various issues with its enforceability.

See ECF No. 76 at ¶¶ 24–27. The second lawsuit, initiated when Mr. Turturice filed a writ of

summons against Ms. Croft, was withdrawn without a complaint ever being served. See id. at ¶¶

216–218. Finally, although Plaintiffs claim that a surcharge3 brought against Ms. Croft by the

Township’s Board of Auditors was in retaliation for Ms. Croft’s public disagreements with the

Board majority, the evidence in the record does not indicate any real collaboration between the

Defendants and the auditors, with the exception of Mr. Turturice providing limited procedural

legal advice. See ECF No. 76 at ¶ 202–206. Indeed, although Ms. Croft’s surcharge is the largest,

all of the supervisors on the 2019 Board were surcharged. Id. at ¶ 213–14; see also ECF No. 51

at 44 (describing bases for surcharge against Ms. Croft).

Ms. Croft also claims that the Board majority intentionally singled her out by depriving her

of information. See, e.g. ECF No. 26 at 4, 9. However, the record does not support that assertion.

Rather, the evidence shows that procedural issues related to the flow of information—caused, in

part, by the abrupt departure of the Township’s former Secretary/Treasurer, Sharon Balach, and

the ongoing COVID-19 pandemic—have been experienced by the Board generally. See id. at ¶¶

115, 168, 195. For example, Mr. Martin testified that, despite being appointed to oversee the police

department, he was left out of communications regarding police personnel issues. See id. at ¶¶

149, 154, 157.

Finally, Plaintiffs contend that the Defendant-Supervisors and Mr. Turturice deliberated

and made decisions about Township business outside of public meetings, specifically with regard

to the Reorganizational Meeting, thereby depriving Ms. Croft of meaningful participation in

3 Under Pennsylvania’s Second Class Township Code, a surcharge is the “amount of any loss to the

township caused in whole or in part by the officer’s act or omission in violation of law or beyond the scope

of the officer’s authority.” 53 P.S. § 65907(a).

Township affairs. See ECF No. 26 at 4. The record does reflect some coordination among the

Defendants as it relates to Township business. For example, the Board majority used a different

agenda, drafted by Mr. Turturice, than the one available to Ms. Croft and Mr. Shingle at the

Reorganizational Meeting. Compare Defs.’ Ex. OO with Defs.’ Ex. PP. And, Mr. Fidler, Mr.

Martin, and Ms. Iams all conceded that they spoke individually with each other and/or Mr.

Turturice, about certain matters, but never met as a group. See ECF No. 76. at ¶ 35. However,

with respect to the Reorganizational Meeting, the record reflects that the agenda drafted by Mr.

Turturice provided only form language for certain motions—not pre-ordained votes—and was

otherwise consistent with the agenda used by Ms. Croft and Mr. Shingle. See id. at ¶¶ 33, 41; see

also Defs’ Ex. OO.

II. Standard of Review

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. NRDC, Inc., 555 U.S. 7, 24 (2008); Greater Phila. Chamber of Commerce v. City of Phila., 949

F.3d 116, 133 (3d Cir. 2020) (courts should grant preliminary injunctions only in “limited

circumstances”); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.

1989). Four factors inform a court’s decision as to the issuance of a preliminary injunction:

(1) The likelihood that the plaintiff will prevail on the merits at final hearing; (2)

the extent to which the plaintiff is being irreparably harmed by the conduct

complained of; (3) the extent to which the defendant will suffer irreparable harm

if the preliminary injunction is issued; and (4) [that] the public interest [weighs in

favor of granting the injunction.]

***

Generally, the moving party must establish the first two factors and only if these

“gateway factors” are established does the district court consider the remaining two

factors. The court then determines “in its sound discretion if all four factors, taken

together, balance in favor of granting the requested preliminary relief.”

Greater Phila. Chamber of Commerce, 949 F.3d at 133 (citations omitted)); see also Reilly v. City

of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017), as amended (June 26, 2017) (citing Del. River

Port Auth v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919–20 (3d Cir. 1974)); Ace Am.

Ins. Co. v. Wachovia Ins. Agency Inc., 306 Fed.Appx. 727, 732 (3d Cir. 2009); 13 Moore’s Federal

Practice – Civil § 65.22 (2020).

To establish a likelihood of success on the merits, the movant must “demonstrate that it

can win on the merits (which requires a showing significantly better than negligible but not

necessarily more likely than not).” Reilly, 858 F.3d at 179; see also, 42 Am. Jur. 2d Injunctions

§ 18 (2020) (explaining that to obtain a preliminary injunction, the movant must show that it is

“reasonably likely” to succeed on the merits.). That is, “the moving party must produce sufficient

evidence to satisfy the essential elements of the underlying cause of action.” Sutton v. Cerullo,

Civil No. 3:CV-10-1899, 2014 U.S. Dist. LEXIS 110116, at * 13 (M.D. Pa. Aug. 8, 2014) (citing

Punnett v. Carter, 621 F.2d 578, 582–83 (3d Cir. 1980)). And, the burdens of proof as to the

substantive merits of a claim “track the burdens at trial.” Gonzales v. O Centro Espirita

Beneficente Uniao de Vegetal, 546 U.S. 418, 429 (2006).

III. Discussion

A. Plaintiffs Have Not Demonstrated a Likelihood of Proving the Alleged

Retaliatory Conduct was Sufficient to Deter a Person of Ordinary Firmness.

At the core of Plaintiffs’ claims is the charge that Defendants have engaged in a protracted

(and ongoing) campaign of retaliation against Ms. Croft for her public disagreements with the

Board majority. In short, Plaintiffs contend in their Second Amended Complaint that, in violation

of Ms. Croft’s First Amendment rights, the Board majority and Mr. Turturice systematically and

deliberately retaliated against Ms. Croft by denying her access to township information and

facilities, excluding her from the Board’s decision-making process, and enforcing a so-called

“chain of command” policy which inhibited her ability to communicate with Township employees.

ECF No. 51 at ¶ 66.

To prevail on a First Amendment retaliation claim, a plaintiff must demonstrate “(1)

constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary

firmness from exercising his constitutional rights, and (3) a causal nexus between the

constitutionally protected conduct and the retaliatory action.” Zimmerlink v. Zapotsky, 539

Fed.Appx. 45, 48 (3d Cir. 2013) (citing Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.

2006)). Here, Plaintiffs have failed to present evidence sufficient to demonstrate a likelihood of

success on the second element.

Because “the alleged retaliatory conduct must have had more than a de minimis impact on

the plaintiff's First Amendment rights” to be actionable, “[w]here the alleged misconduct relates

to the statements or actions of elected officials, the threshold is particularly high.” Willson v.

Yerke, 604 Fed.Appx. 149, 151 (3d Cir. 2015). Thus, “the First Amendment may well prohibit

retaliation against elected officials for speech pursuant to their official duties only when the

retaliation interferes with their ability to adequately perform their elected duties.” Werkheiser v.

Pocono Twp., 780 F.3d 172, 181 (3d Cir. 2015).

The United States Court of Appeals for the Third Circuit’s opinion in Zimmerlink is

particularly instructive here. In Zimmerlink, plaintiff, one of three elected county commissioners,

alleged that defendants, the other two commissioners, had retaliated against her in violation of the

First Amendment by, among other things, holding secret meetings, engaging in negotiations with

third parties without plaintiff, and working to exclude plaintiff from county affairs. See 539

Fed.Appx. at 46. Affirming the district court’s grant of summary judgment in favor of defendants,

the court drew a distinction between “quotidian disputes among elected officials” and cases, such

as Monteiro v. City of Elizabeth, 436 F.3d 397 (3d Cir. 2006), where retaliatory conduct actually

prevented a legislator from speaking or involved formal punishment for his or her speech.

Zimmerlink, 539 Fed.Appx at 50 (discussing Monteiro, 436 F.3d at 400–01, and citing Tenney v.

Branhove, 341 U.S. 367, 378 (1951) (“In times of political passion, dishonest or vindictive motives

are readily attributed to legislative conduct and as readily believed. Courts are not the place for

such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging

or correcting such abuses.”)).

At a minimum, a plaintiff must show that the defendant’s conduct substantially impaired

the plaintiff-legislator’s ability to perform her elected duties. Plaintiffs have not shown that to be

the case here. Although the evidence before the Court shows that Ms. Croft may have had

difficulty at times obtaining or accessing information she wanted, or receiving information as

quickly as she wanted, the record does not reflect a likelihood that Plaintiffs can succeed in proving

the level of exclusion and ostracization necessary to meet the “particularly high” threshold

applicable to cases involving elected officials. Willson, 604 Fed.Appx at 151. For example,

matters related to the police union contract negotiations highlight the shortcomings of Plaintiffs’

evidence. Although Ms. Croft may not have had access to all of the information she wanted exactly

when she wanted it, see ECF No. 76 at ¶¶ 64 (seeking the NDA), 97 (seeking copy of chief of

police job description), like other Supervisors not directly involved in the contract negotiations,

Ms. Croft received periodic progress updates during Board executive sessions and she conceded

that, by the time the contract was voted on by the Board in December 2020, she had been provided

sufficient information, with sufficient time to consider it, to cast an informed vote. Indeed, Ms.

Croft voted to approve the new contract. See ECF No. 76 at ¶¶ 104-08.

B. Plaintiffs Have Not Demonstrated a Likelihood of Proving There Was No

Rational Basis for Defendants’ Treatment of Ms. Croft.

In Count II of the Second Amended Complaint, Plaintiffs claim, under the Fourteenth

Amendment’s Equal Protection Clause, that Defendants’ alleged practice of treating Ms. Croft

differently from the majority supervisors is wholly irrational and serves no legitimate government

purpose. See ECF No. 51 at ¶ 68. Plaintiffs do not contend that any alleged differential treatment

of Ms. Croft was based on her membership in any protected class (i.e., race, gender, religious

affiliation); as such, Plaintiffs are proceeding on a “class-of-one” theory. See ECF No. 26 at 10.

To maintain an equal protection claim under the class-of-one theory (i.e. where no suspect

classification is in play), “a plaintiff must allege that (1) the defendant treated [her] differently

from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational

basis for the difference in treatment.” Hill v. Bor. of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006)

(discussing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). The “rational basis”

standard is very deferential and is satisfied “‘if there is any reasonably conceivable state of facts

that could provide a rational basis’ for the differing treatment.” Newark Cab Assoc. v. City of

Newark, 901 F.3d 146, 156 (3d Cir. 2018) (quoting United States v. Walker, 473 F.3d 71, 77 (3d

Cir. 2007)).

Again, the Zimmerlink decision guides the Court’s analysis here. Like Plaintiffs, the

plaintiff in Zimmerlink pursued a class-of-one Equal Protection claim in addition to her First

Amendment retaliation claim, alleging that the defendant-commissioners’ differential treatment of

her had no rational basis. Affirming the grant of summary judgment in defendants’ favor, the

Third Circuit found that plaintiff’s Equal Protection claim was defective because it was

“functionally identical” to her retaliation claim and that “in this case, the dispute in question is a

political one, and Zimmerlink has provided no basis to conclude that it is irrational that a politician

would treat a political ally differently than a political opponent.” 539 Fed. Appx. at 50.

The same is true here. According to Plaintiffs, the breach between Ms. Croft and the Board

majority stems from Ms. Croft’s ongoing disagreement with the Board majority over issues related

to Township government, including, among other things, her persistent lobbying for greater

transparency and disputes over policing. See ECF No. 26 at 1; ECF No. 75 at ¶¶ 6–7, 9, 12–14,

30–31. Such issues—having to do with the way a government body functions and its relationship

to its constituents—are quintessentially political matters. As such, Plaintiffs have not

demonstrated a likelihood of success on the merits of their Equal Protection claim in Count II.

C. Plaintiffs Have Not Demonstrated a Likelihood of Proving They Were

“Deprived” of Their Votes.

Asserting a claim under the Due Process Clause of the Fourteenth Amendment, Plaintiffs

allege in Count III of the Second Amended Complaint that by virtue of the alleged retaliatory

conduct, Defendants “have effectively denied Plaintiffs of their vote.” ECF No. 51 at ¶ 72. In

their Motion,4 Plaintiffs assert that this claim finds footing in the Supreme Court’s “famous ‘one-

man, one vote’ decision” in Baker v. Carr, 369 U.S. 186 (1962). ECF No. 26 at 10–11.

Broadly speaking, Baker was a case about whether federal courts could adjudicate a case

in which plaintiffs alleged that their votes were diluted by a state’s legislative apportionment

scheme. See Baker, 369 U.S. at 187–88. In holding the federal courts had jurisdiction and that

such disputes are justiciable, the Court found that “[a] citizen's right to a vote free of arbitrary

impairment by state action has been judicially recognized as a right secured by the Constitution”

in situations involving false tallies, refusals to count votes from certain precincts, and ballot-box

stuffing. Id. at 208 (citations omitted). But Baker speaks about a “right to a vote free from arbitrary

impairment,” id., and Plaintiffs have introduced no evidence that their votes were in any way

tampered with or impaired. Indeed, the facts here—specifically that Plaintiffs voted for Ms. Croft

and she was, in fact, elected—demonstrate the opposite.

4 Note that, in the Brief in Support of their Motion, Plaintiffs appear to instead frame Count III as arising

under the Equal Protection Clause. ECF No. 26 at 10–11.

Presented with a virtually identical claim in Smith v. Twp. of Alleppo, 05cv0071, 2005 U.S.

Dist. LEXIS 45262 (W.D. Pa. Apr. 12, 2005), the court, granting summary judgment in favor of

the defendants, found that:

Citizens may elect a member of a legislative body whose voice is ruthlessly muffled

by the majority, but that does not mean that the voters' [sic] were denied any equal

protection or due process right to “one right [sic] one vote” as with an

unconstitutional apportionment. It is not the process of election that is denied its

due, in that case, but the political will of the electors whose redress is at the ballot,

not in the Courts, on that issue.

Id. at *4 (emphasis original). The same is true here. Indeed, even accepting Plaintiffs’ framing of

their claim—namely, that retaliation against a lawmaker by her colleagues gives rise to an Equal

Protection and/or Due Process claim by her constituents—Plaintiffs have not demonstrated a

likelihood of success on the merits for the reasons discussed regarding Plaintiffs’ First Amendment

retaliation claim. That is, Plaintiffs have not shown a likelihood of succeeding in showing that

Ms. Croft’s ability to perform her elected duties was actually impaired as a result of Defendants’

conduct.

D. Plaintiffs Have Not Demonstrated a Likelihood of Success on Their State Law

Claims.

Finally, in Counts IV and V of the Second Amended Complaint, Plaintiffs claim that

certain of Defendants’ actions violated Pennsylvania’s Second Class Township Code (the “Code”)

and the Sunshine Act.5 The Court has supplemental jurisdiction over these claims, see 28 U.S.C.

§ 1367(a), because the alleged violations of state law are closely related to Plaintiffs’ constitutional

5 In their Brief in Support of their Motion, ECF No. 26, Plaintiffs also raise alleged violations of

Pennsylvania’s Right to Know Law (“RTKL”) in the context of alleged violations of the Code and the

Sunshine Act. ECF No. 26 at 4. However, Plaintiffs do not purport to assert any claim under the RTKL in

their Second Amended Complaint and, after reviewing both the Second Amended Complaint and Plaintiffs’

Brief, the Court concludes that any claim related to alleged use/abuse of RTKL processes properly relates

to Plaintiffs’ First Amendment claim. See ECF No. 51 at ¶¶ 33–36; ECF No. 26 at 4 (arguing that “the

Defendants utilize RTKL as a mechanism to burden Supervisor Wright Croft’s ability to inform her vote.”).

claims. Because the Code and the Sunshine Act operate in tandem to define the scope and process

for conducting Township business, these claims will be analyzed jointly.

i. Legal Framework

When Pennsylvania courts analyze alleged violations of the Code and/or the Sunshine Act,

there is a “presumption of regularity and legality that obtains in connection with proceedings of

local agencies.” Kennedy v. Upper Milford Twp. Zoning Hearing Bd., 834 A.2d 1104, 1123 (Pa.

2003) (citations omitted). As such, the party challenging the act(s) of a local agency ultimately

bears the burden of proving a violation. See Smith v. Twp. of Richmond, 82 A.3d 407, 412 (Pa.

2013) (citing Kennedy, 834 A.2d at 1123). Accordingly, Plaintiffs bear that burden here.

Under the Code, all official business must be transacted at a “public meeting” attended by

at least a quorum of a municipality’s board of supervisors. 53 P.S. § 65603. While a quorum may

be less than the full board of supervisors—with two members of a three member board and three

members of a five member board constituting a quorum—an affirmative vote by a majority of the

entire board is required to transact any business. Id. Although the Code does not define the term

“public meeting,” it defers regulation of “public meetings” to other provisions of Pennsylvania

law. 53 P.S. § 65103. And, although the Sunshine Act does not use the term “public meeting,” it

instead uses the term “open meetings” and stipulates that “[o]fficial action and deliberations by a

quorum of the members of an agency shall take place at a meeting open to the public unless closed”

pursuant to one of three enumerated exceptions. 65 Pa.C.S. § 704 (emphasis added). A board of

supervisors under the Code is among those bodies defined as an “agency” under the Sunshine Act.

65 Pa.C.S. § 704. While not one of the enumerated exceptions to the Sunshine Act’s “open

meetings” requirement, “emergency meetings,” defined as meetings called “for the purpose of

dealing with a real or potential emergency involving a clear and present danger to life or property,”

65 Pa.C.S. § 703, do not require the usual advance notice to the public. 65 Pa.C.S. § 709(a).

The Sunshine Act further defines “deliberations” and “meetings,” and distinguishes

between “official action” and “administrative action.” 65 Pa.C.S. § 703. A “meeting” is “[a]ny

prearranged gathering of an agency which is attended or participated in by a quorum of the

members of an agency held for the purpose of deliberating agency business or taking official

action.” Id. “Official action” is defined to include “[r]ecommendations made by an agency

pursuant to statute, ordinance or executive order”; “[t]he establishment of policy by an agency”;

“[t]he decisions on agency business made by an agency”; and “[t]he vote taken by any agency on

any motion, proposal, resolution, rule, regulation, ordinance, report or order.” Id. “Administrative

action,” on the other hand, is defined as “[t]he execution of policies relating to persons or things

as previously authorized or required by official action of the agency adopted at an open meeting

of the agency,” but specifically excludes deliberation of agency business. Id. Finally,

“deliberation” is defined under the Sunshine Act as “[t]he discussion of agency business held for

the purpose of making a decision.” Id.

Then, under the Code and the Sunshine Act, official action or deliberations must be

conducted at an open (that is, public) meeting. Unless one of the exceptions to the open meeting

requirement applies, a quorum of agency members may not meet to deliberate on agency business.

But, nothing in either statute prohibits less than a quorum of agency members from meeting to

discuss agency business, nor does Pennsylvania law prohibit private meetings, including those at

which a quorum is in attendance, held for the purpose of gathq 67ering information but not to

deliberate or take official action. See Twp. of Richmond, 82 A.3d at 415.

That said, official action taken by an agency outside of a public meeting may be invalidated

by a court. 65 Pa.C.S. § 713. However, because the Sunshine Act only permits the invalidation

of “official action,” where a private meeting is held and no action is taken, or official action taken

at a private meeting is later ratified by the agency at a proper public meeting, “the General

Assembly has provided no remedy…beyond summary criminal proceedings against the members

involved.” Twp. of Richmond, 82 A.3d 407, 414 n.8 (Pa. 2013) (citing Ackerman v. Upper Mt.

Bethel Twp., 567 A.2d 1116, 1120 (Pa. Commw. Ct. 1989) (“Although the Sunshine Act's purpose

is to discourage private meetings on agency business followed by rubberstamp public hearings,

the legislature has apparently provided no remedy to achieve this purpose beyond summary

criminal proceedings against agency members.”)); see also Kennedy, 834 A.2d at 1125 (noting

that 65 Pa.C.S. § 710.1(b) “makes invalidation unavailable as a remedy where the meeting's only

violation is a failure to provide a reasonable opportunity for comment by residents and taxpayers”).

That said, Pennsylvania courts have found that even if a complaint alleging violations of the

Sunshine Act is untimely, see 65 Pa.C.S. § 713 (requiring challenge to be filed within 30 days of

a public meeting or within 30 days of discovery of action not taken at a public meeting, but no

longer than one year after the challenged action), actions in violation of the Code may still be

voided if not later ratified by the agency. See, e.g., Thomas v. Twp. of Cherry, 722 A.2d 1150,

1153–1154 (Pa. Commw. Ct. 1999).

ii. Analysis

Based on the foregoing framework, Plaintiffs have failed to carry their burden at the

preliminary injunction stage to demonstrate a likelihood of success on the merits. In the Second

Amended Complaint, Plaintiffs specifically allege the following violations of the Code and the

Sunshine Act, see ECF No. 51 at ¶¶ 75, 79:

1. That the Board majority used a different agenda at the Reorganizational Meeting than Ms.

Croft and Mr. Shingle, id. at ¶ 28;

2. That Mr. Fidler and Ms. Iams, in coordination with Mr. Turturice, filed a complaint against

the police union, id. at ¶ 30;

3. That Mr. Fidler and Ms. Iams entered into the NDA on behalf of the Township without

any vote being taken on the matter at a public meeting, id. at ¶ 32;

4. That under the so-called “chain of command” policy, “fewer than all members of the

Board, at times not even amounting to a quorum, are authorized to transact business.” ECF

No. 51 at ¶ 75(b);

5. That the Board majority failed to “giv[e] notice to Mrs. Wright Croft, a member of the

Board, of their intention to discuss official Township business and transact business,” id.

at ¶75(c); and

6. That the Board’s December 16, 2020, meeting was not a bona fide “emergency meeting”

because it involved deliberations and actions related to funding of payroll, id. at ¶ 79.

First, although Plaintiffs appear to assert that merely using a different agenda was in

violation of the Code, the crux of their argument appears to be that the Board majority and Mr.

Turturice “coordinated” in advance of the Reorganizational Meeting, and in so doing effectively

took “action” on Township business in a private setting, outside of the public eye and without

notice to or input from Ms. Croft or Mr. Shingle. But, while the record suggests that there were

some communications between members of the Board majority in advance of the Reorganizational

Meeting—e.g., Ms. Iams sent Mr. Turturice a template agenda and Mr. Fidler testified that he

spoke, individually, to Ms. Iams and Mr. Martin about their votes for chairperson, see, ECF No.

76 at ¶¶ 33–36—video from the Reorganizational Meeting submitted into evidence by Plaintiffs,

see ECF No. 63-1 (Pls’ Ex. 1 to January 27, 2021, evidentiary hearing) shows that the substantive

motions listed on the majority’s “script” agenda were made, debated, and voted on by the Board

in a public meeting, with ample opportunity for public comment. See also ECF No .76 at ¶¶ 44–

45. Thus, because the official actions taken by the Board at the Reorganizational Meeting were in

the context of a public meeting, even if the Board majority’s communication before the meeting

was a violation, invalidation is not an available remedy. See Twp. of Richmond, 82 A.3d 407, 414

n.8 (Pa. 2013).

Second, Mr. Fidler and Ms. Iams were specifically authorized by the Board at the

Reorganizational Meeting to initiate legal proceedings against the police union. See Pls’ Ex. 65.

As such, the Court finds that the filing of the complaint was an “administrative action,” as opposed

to an “official action,” because it had been previously authorized by an official action of the Board

taken at a public meeting.

Third, Ms. Iams and Mr. Fidler entering into the NDA, purportedly on behalf of the

Township, also appears to have been within the scope of the authority delegated to them by the

Board to renegotiate the police contract. That is, the Board passed a motion at the Reorganizational

Meeting directing Ms. Iams and Mr. Fidler to “talk with police and try to work on [a] contract and

if not successful take legal action.” See ECF No. 76 at ¶ 48. Thus, although not specifically

addressed in the motion, agreeing to non-disclosure of the contents of the negotiations appears to

the Court to be within the scope of the delegation to Ms. Iams and Mr. Fidler to “talk with police

and try to work on [a] contract.” Furthermore, even if entering into the NDA was done in violation

of the Code or the Sunshine Act, the NDA by its own terms has expired. See id. at ¶ 62. As such,

any alleged violation of the Code or Sunshine Act in connection with the NDA is not a proper

basis for a preliminary injunction. See, e.g., Freedom Med. Inc. v. Whitman, 343 F.Supp.3d 509,

530 (E.D. Pa. 2018) (“Simply put, a showing of past harm, without more, is insufficient to justify

the issuance of a preliminary injunction.”) (citation omitted).

Fourth, even assuming that Resolution 2-2019 is still in effect (which Defendants dispute),

the so-called “chain of command” policy only authorizes an individual supervisor to exercise

oversight with respect to day-to-day operations of a given department of the Township and directs

the individual supervisor to refer matters for consideration by the Board. See Pls’ Ex. 66.

Furthermore, Resolution 2-2019 does not purport to authorize individual supervisors to take

official action on behalf of the Township. Id. Rather, Resolution 2-2019 specifically bars an

individual supervisor charged with oversight of a department from entering into contracts or

performing municipal functions without prior approval of the Board. Id. Finally, it does not appear

to the Court that there is any evidence in the record of an individual supervisor (or group of

supervisors) taking official action on behalf of the Township pursuant to their authorization to

oversee a given department.

Fifth, the allegation that the Board majority did not give Ms. Croft “notice” of the

majority’s intention to discuss and transact Township business is too vague a basis on which to

ground a preliminary injunction. Neither the Code nor the Sunshine Act prohibits less than a

quorum of members of an agency from privately discussing agency business. And, while as noted

above, it appears that members of the Board majority communicated with each other in advance

of the Reorganizational Meeting, Plaintiffs have not presented evidence that a quorum of the Board

met to deliberate on Township business or take official action. See ECF No. 76 at ¶ 37.

Sixth, and finally, according to evidence presented at the evidentiary hearing on Plaintiffs’

Motion, the December 16, 2020, emergency meeting was called in connection with the

Pennsylvania Governor’s declaration of a state of emergency related to a major snow storm and to

deal with a potential shortfall in the Township’s general fund relative to imminent payroll

disbursements. See ECF No. 76 at ¶¶ 224–28. No public notice was provided in advance of the

meeting, see id. at ¶ 230, but the Sunshine Act provides that public notice is not required for an

emergency meeting. See 65 Pa.C.S. 709(a). Furthermore, the threat posed by the snow storm falls

within the scope of the Sunshine Act’s “emergency meeting” provision, see 65 Pa.C.S § 703, and

Plaintiffs have not pointed to any authority (nor is the Court aware of any) indicating that an

impending failure to meet an agency’s financial obligations does not constitute “a real or potential

emergency involving a clear and present danger to…property.” Id.

In sum, then, based on the record before it, the Court concludes that Plaintiffs have not

carried their burden to show a likelihood of success on the merits of their state law claims.

IV. Conclusion

For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction is hereby

DENIED.

DATED this 23rd day of March, 2021.

BY THE COURT:

/s/ Christy Criswell Wiegand

CHRISTY CRISWELL WIEGAND

United States District Judge

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