Parents appeal dismissal of anti-mask lawsuits; Millcreek, NE districts' legal costs grow

The anti-mask lawsuits that two groups of parents filed against the Millcreek Township and North East school boards have already cost the school districts more than $20,000 in combined legal fees.

The costs are about to get bigger.

In response to an Erie County judge's dismissal of the suits on Sept. 13, a lawyer representing the parents has appealed the ruling to Pennsylvania Commonwealth Court.

The appeal was filed on Monday in Erie County Common Pleas Court, and court officials mailed the appeal notice to Commonwealth Court on Tuesday, according to court records.

Commonwealth Court is a step below the Pennsylvania Supreme Court. It hears cases involving government agencies. Commonwealth Court's counterpart regarding appeals in criminal and civil cases is Pennsylvania Superior Court.

Commonwealth Court will set a schedule for briefs and oral arguments. It likely will take months to rule, and its decision could be appealed to the state Supreme Court.

Students wearing masks arrive at Belle Valley Elementary School in Millcreek Township on Jan. 5, 2021. A group of parents in the Millcreek and North East school districts are appealing an Erie County judge's decision on Sept. 13 that dismissed the parents lawsuits over mask requirements, which the respective school boards lifted in early 2022 as COVID-19 cases waned.

The parents want Commonwealth Court to overturn Erie County Judge Erin Connelly Marucci's decision to toss the parents' request that she remove school directors in both the Millcreek and North East school districts. The parents want the directors ousted because they approved mask mandates and quarantine requirements to curb the spread of COVID-19.

Both school boards set aside the restrictions earlier this year as the number of coronavirus cases waned and the state directives for school districts changed. But the parents sued anyway, claiming the masks and quarantine rules violated the rights of their children, including the 8th Amendment protection against cruel and unusual punishment.

Connelly Marucci ruled against the parents in a sharply worded opinion. She cited a longstanding Pennsylvania Supreme Court precedent that said school directors have wide discretion in dealing with health concerns in their buildings. She refused to oust the school directors, who are elected, and pick their replacements.

Costs of the anti-mask lawsuits for Millcreek, NE districts

To successfully defend the lawsuits, the Millcreek and North East 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.

The districts provided the amounts in response to requests the Erie Times-News filed under the state's Right-to-Know Law. The Millcreek School District responded on Monday, and the North East School District on Friday.

The Millcreek and North East school districts use the same law firm, the Erie-based Knox, McLaughlin, Gornall & Sennett. A lawyer in the firm, Timothy Sennett, is the solicitor for both districts. Sennett is handling the districts' fight against the anti-mask lawsuits with his law firm colleagues Michael Musone, who argued the districts' case before Connelly Marucci, and Philip J. Seaver-Hall.

A number of parents sued the Millcreek Township School District on April 25, and a group of North East parents filed a virtually identical petition on May 19. Connelly Marucci consolidated the cases, and her ruling covered both lawsuits.

The legal fees for the Millcreek School District are believed to be higher than North East's because the Millcreek School Board was sued first, and the initial work the lawyers did in that case was used in the North East case.

After the filing of the lawsuits, the school districts filed motions to quash the suits. Connelly Marucci heard oral arguments on both lawsuits on Aug. 4. She used information from that session to rule in favor of the school districts' and dismiss the lawsuits in a 10-page opinion she issued on Sept. 13.

The parents who filed the respective lawsuits did so under the auspices of a group called Erie County PA Parents Protecting Children. The lead petitioner in the Millcreek case, Troy Prozan, initially represented himself, but a lawyer from Lebanon County, J. Chadwick Schnee, later took over the case. Schnee also took on the case of the lead petitioner in the North East case, Erin Beckes, who also initially represented herself.

Demonstrators protest against COVID vaccinations and face masks during a School Board meeting held at the Millcreek Township School District's Millcreek Education Center (not shown) on Aug. 23, 2021. Some parents' anger over mask requirements led to lawsuits against the Millcreek and North East school districts. An Erie County judge tossed the lawsuits on Sept. 13, and the parents behind the suits have appealed the decision to Pennsylvania Commonwealth Court.

Schnee did not immediately respond to an email seeking comment about the appeal. Sennett, the school districts' solicitor, also did not immediately respond to an email about the appeal.

Officials from the districts' lauded Connelly Marucci's decision to toss the lawsuits. In a statement she issued following the ruling, North East schools Superintendent Michele Hartzell said: "The court reaffirmed that the Board of Directors had the discretionary power to require masks and the quarantine of students in accordance with Pennsylvania School Code. This was an unfortunate situation, time consuming and cost our local taxpayers a lot of money."

The lawyers for the school districts asked Connelly Marucci to order the parents who sued to compensate the districts for their legal costs. Connelly Marucci in her ruling declined that request without comment.

Pa. Supreme Court ruling from 1894 key to judge's decision

The North East suit sought the ouster of all nine school directors. The Millcreek case sought the ouster of seven of the nine school directors, leaving untouched a director, Michael Kobylka, who favored optional masking and a director who is new to the board, Kim Lupichuk.

The North East School District, which includes North East High School, shown on Oct. 28, 2021, was hit with a lawsuit that sought to oust the school directors over COVID-19 mask requirements. An Erie County judge on Sept. 13 dismissed the anti-mask lawsuits against the school boards for the North East and Millcreek Township school districts, and the parents who sued have appealed the dismissal to Pennsylvania Commonwealth Court.

In filing the suits that requested removal, the parents cited a part of the Pennsylvania School Code, Section 3-318, that allows a Common Pleas Court judge to oust school directors who refuse or neglect to perform a duty. The law authorizes a judge to name replacements.

The Millcreek School District has not required masks and quarantines for its 6,400 students since March 1. The North East School District lifted similar requirements for its 1,600 students on Feb. 28.

In siding with the school boards, Connelly Marucci repeatedly referred to a 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.

"The broad discretion of school districts to prevent the spread of infection and disease within their schools is a matter that has survived the test of time," Connelly Marucci said, referring to the Duffield case.

Schnee, the parents' lawyer, raised a number of arguments in support of the request to oust the school directors. They included the claim that some fundamental Christians might consider the wearing of masks tantamount to participation in a satanic ritual and a violation of their rights to freedom of religion.

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

The state Supreme Court decision was based on procedural grounds, however, and the state Supreme Court never said school boards were prohibited from requiring masks.

Connelly rejected the parents' arguments. She also wrote in her decision that the parents "lay out a myriad of legal claims; however, despite multiple reviews of the Petitions, it is unclear to the Court how to break down and logically separate the many claims."

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

This article originally appeared on Erie Times-News: COVID-19 in court: Parents lose anti-mask suits against school boards