Case 1:17-cv-00688-CCC Document 1 Filed 04/17/17 Page 1 of 16

MARK B. FROST & ASSOCIATES

MARK B. FROST, ESQUIRE
RYAN M. LOCKMAN, ESQUIRE
1515 Market Street
Suite 1300
Philadelphia, PA 19102
215-351-3333
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
__________________________________________
BLACK & DAVISON :
JAN G. SULCOVE, ESQUIRE, :
ROBERT C. SCHOLLAERT, ESQUIRE, :
ELLIOTT B. SULCOVE, ESQUIRE, :
JERROLD A. SULCOVE, ESQUIRE, :
MARK T. ORNDORF, ESQUIRE, :
:
Plaintiffs, :
v. : JURY TRIAL DEMANDED
:
: COMPLAINT
CHAMBERSBURG AREA SCHOOL :
DISTRICT, :
DANA BAKER, :
In his individual and official capacities, :
WILLIAM LENNARTZ, :
In his individual and official capacities, :
CARL BARTON, :
In her individual and official capacities, :
EDWARD NORCROSS, :
In his individual and official capacities, :
JOAN SMITH, :
In her individual and official capacities, :
ROBERT FLOYD, :
In his individual and official capacities, :
MARK SCHUR, :
In his individual and official capacities, :
KEVIN MINTZ, :
In his individual and official capacities, :
ALEXANDER SHARPE, :
In his individual and official capacities, :
DR. JOSEPH PADASAK, :
In his individual and official capacities, :
Defendants. :
__________________________________________:

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INTRODUCTION

1. This action for declaratory, injunctive, monetary and other appropriate relief is brought by

Plaintiffs to redress the intentional violations by the Defendants of the rights secured to

Plaintiffs by the laws of the United States of America and the statutory and common law

of the Commonwealth of Pennsylvania. Among other things, Plaintiff seeks recovery for

damages suffered as a result of retaliation against Plaintiffs for engaging in speech and

association which was protected under the First Amendment, and for being perceived as

having engaged in First Amendment protected speech and association.

2. The Chambersburg Area School District, by and through the individual defendants,

retaliated against Plaintiffs based on Plaintiffs protected speech and association arising

out of the 2015 election for School Board for the Chambersburg Area School District.

JURISDICTION

3. This action is brought pursuant to 42 U.S.C. 1983, and the First and Fourteenth

Amendments of the United States Constitution. Jurisdiction is founded on 28 U.S.C.

1331 and 1343(3) and the aforementioned statutory and constitutional provisions.

4. Jurisdiction lies over state law claims based on the principles of supplemental jurisdiction,

as codified at 28 U.S.C. 1367.

5. The amount in controversy exclusive of interest and costs exceeds the sum of one hundred

thousand Dollars ($100,000) per Plaintiff.

VENUE

6. All the claims herein arose within the jurisdiction of the United States District Court for

the Middle District of Pennsylvania and involve Defendants who reside within the

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jurisdictional limits. Venue is accordingly invoked pursuant to the dictates of 28 U.S.C.

1391(b) and (c).

PARTIES

7. The law firm of Black & Davison (the firm) was formed in 1959 and has at all times

material been located in the Borough of Chambersburg, Pennsylvania. As set forth below,

the firm consists of five equity partners, all of whom are Plaintiffs in the instant action: 1)

Jan G. Sulcove, 2) Robert C. Schollaert, 3) Elliott B. Sulcove, 4) Jerrold A. Sulcove, and

5) Mark T. Orndorf.

8. All five individual Plaintiffs are licensed to practice law in the Commonwealth of

Pennsylvania.

9. Defendant Chambersburg Area School District (CASD) is the school system for the

Borough of Chambersburg, Franklin County, PA and five (5) surrounding townships all

located in Franklin County, PA: Hamilton, Greene, Lurgan, and Letterkenny, and a portion

of Guilford Township.

10. The Board of School Directors for the Chambersburg Area School District is comprised of

a President, Vice President, and seven (7) other elected board members. At all times

material as set forth below, Defendants Dana Baker, William Lennartz, Carl Barton,

Edward Norcross, Joan Smith, Robert Floyd, Mark Schur, Kevin Mintz and Alexander

Sharpe all served on the Board of School Directors.

11. At all times material, Defendant Dr. Joseph Padasak has served as Superintendent of the

Chambersburg Area School District and a non-voting member of its Board of School

Directors.

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FACTS

A. CHAMBERSBURG AREA SCHOOL DISTRICT

12. Defendant Chambersburg Area School District is the school system for the Borough of

Chambersburg, PA and five (5) surrounding townships all located in Franklin County, PA:

Hamilton, Greene, Lurgan, and Letterkenny, and a portion of Guilford Township. The

District consists of approximately 1,100 employees, and the school board approves every

personnel decision in the district involving the hiring, firing, transfer, promotion, demotion.

13. The Board of School Directors for the Chambersburg Area School District is comprised of

a President, Vice President, and seven (7) other elected board members. The

Superintendent serves a non-voting board member.

14. At all times material as set forth below, Defendants Dana Baker, William Lennartz, Carl

Barton, Edward Norcross, Joan Smith, Robert Floyd, Mark Schur, Kevin Mintz and

Alexander Sharpe all served on the Board of School Directors.

15. At all times material, Defendant Dr. Joseph Padasak has served as Superintendent of the

Chambersburg Area School District. All employment terminations are recommended to

the Board for a final employment decision by the voting members of the Board.

B. BLACK AND DAVISON

16. The law firm of Black & Davison (the firm) was formed in 1959 and has at all times

material been located in the Borough of Chambersburg, Pennsylvania.

17. The firm currently consists of five attorneys, all of whom are equity partners and all of

whom are plaintiffs in the instant action: 1) Jan G. Sulcove, 2) Robert C. Schollaert, 3)

Elliott B. Sulcove, 4) Jerrold A. Sulcove, and 5) Mark T. Orndorf.

18. The five partners currently maintain ownership shares in the law firm.

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19. All partners except Plaintiff Schollaert at various times performed solicitor duties for the

District.

C. CONTRACT BETWEEN BLACK & DAVISON AND THE CHAMBERSBURG

AREA SCHOOL DISTRICT.

20. The law firm Black & Davison has served as District Solicitor for the Chambersburg Area

School District since approximately 1968.

21. Since approximately 1971, partner Jan Sulcove has performed solicitor duties for the

School District on behalf of the firm.

22. Up until 2015, as explained below, Black & Davisons term as District Solicitor was

renewed by the District on an annual basis, via resolution of the Board of School Directors.

23. However, a written contract was entered between Plaintiff Black & Davison and

Defendant Chambersburg Area School District on or about May 27, 2015, and was to be

in effect per the terms of the contract from July 1, 2015 to June 30, 2018.

24. Pursuant to the terms of the contract, the firm would receive an hourly rate of $130 per

hour for work performed as Solicitor on behalf of the District. This hourly rate was to

increase incrementally on an annual basis, pursuant to the contract.

25. Pursuant to the terms of the contract, termination of the agreement by the District was

only permitted for cause for any of the following reasons including Partnerships failure

to maintain an accepted quality of legal services as determined by District; Partnerships

failure to maintain a current unrestricted license to practice law in the Commonwealth of

Pennsylvania; Partnerships failure to conduct itself with professional decorum;

Partnerships receipt of any sanction imposed on Partnership as a result of the

commission of any felony or misdemeanor involving moral turpitude.

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26. Plaintiffs duties as District Solicitor include but are not limited to attending board

meetings, providing guidance to the school district, issuing opinions to the school board,

serving as local counsel in all capital financings and re-financings, representing the

District in administrative hearings and proceedings, advising the board with regard to

discipline, hiring, demotion and transfers of employees, administrators and students,

advising the districts chief of police regard school searches and arrests, and advising

teachers and administrators on legal matters.

D. 2015 ELECTION FOR CHAMBERSBURG AREA BOARD OF SCHOOL

DIRECTORS

1. Election Scheduled

27. In May of 2015, an open primary election was held for positions on the Board of School

Directors.

28. All board members, including the president and vice-president, are elected officials who

serve four-year terms. The four-year terms of the board members are staggered, so that four

or five board seats (depending on the year) are up for election in November of each odd-

numbered year, and the winners of said seats began their new four year terms in December

of that year.

2. Rival Political Factions

29. The School Board elections are technically non-partisan; however, slates of candidates may

be endorsed by different political groups.

30. At the time of the 2015 election, the two rival political factions endorsed different slates of

candidates.

31. One political faction is a slate of primarily moderate republicans; this faction has

traditionally maintained a majority on the Chambersburg Board of School Directors. In

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2015, this faction ran under the ticket unofficially called Citizens for Value and

Excellence in Education (CVEE).

32. The other political faction the historically minority faction ran a slate of candidates

called the Common Sense ticket.

33. Prior to the election, the Board consisted of 5 members of the CVEE faction and four

members of the Common Sense faction.

34. Four seats were not up for election, held by three members of Common Sense and one

member of CVEE. The seats not up for election in 2015 were as follows:

A. Dana Baker (Common Sense)

B. Carl Barton (Common Sense)

C. Edward Norcross (Common Sense)

D. Robert Floyd (CVEE)

35. Five board positions were up for election, two held by incumbent members of CVEE, one

held by an incumbent member of Common Sense, and two open seats. The board positions

up for election in 2015 were as follows:

A. Stanley Helman (incumbent, CVEE) vs. Mark Schur (Common Sense)

B. Kim Amsley-Camp (incumbent, CVEE) vs. Alexander Sharpe (Common

Sense)

C. Stephen Gaugler (CVEE) vs. Joan Smith (Incumbent, Common Sense)

D. Darrell Snyder (CVEE) vs. William Lennartz (Common Sense) (Open Seat)

E. Harold W. Fosnot vs. Kevin Mintz (Common Sense) (Open Seat)

36. Thus, the 2015 election determined who would be in the majority on the school board, and

the minority faction had the opportunity to seize control of the Board of School Directors.

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3. Plaintiffs Support for CVEE Ticket in 2015 Election

37. All of the individual Plaintiffs supported and/or were perceived by Defendants as

supporting the CVEE ticket and engaged in campaign activities including but not limited

to donations, handing out campaign literature, taking constituents to the polls, hanging

and/or posting political signs, and other activities associated with supporting the Board

candidates under the CVEE ticket.

38. Furthermore, Plaintiff Jan Sulcove was responsible for the formation of the political action

committee (PAC) to elect the CVEE incumbents and new CVEE candidates. Jan Sulcove

also donated monies to CVEE and/or its candidates, attended public meetings wherein he

expressed support for CVEE, put up campaign signs, circulated nominating petitions for

CVEE candidates, personally recruited candidates to run on the CVEE slate, hung door-

hanger signs in the Chambersburg area, and assisted with the preparation of CVEE

campaign finance documents.

39. Further, Plaintiff Elliott Sulcove signed nominating petitions on behalf of CVEE

candidates, hung signs in public areas on behalf of CVEE and/or its candidates, and was a

vocal supporter of CVEE and its candidates.

40. Further, Plaintiff Jerrold Sulcove signed nominating petitions on behalf of CVEE

candidates, assisted with campaign filings on behalf of CVEE and/or its candidates,

attended public events in support of CVEE, attended CVEE planning meetings and CVEE

campaign rallies, and was a vocal supporter of CVEE and its candidates.

41. Further, Plaintiff Mark Ordorf signed nominating petitions on behalf of CVEE candidates,

hung signs in public areas on behalf of CVEE and/or its candidates, went door to door and

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sought signatures for nominating petitions on behalf of CVEE and/or its candidates, and

was a vocal supporter of CVEE and its candidates.

42. Further, Plaintiff Robert Schollaert signed nominating petitions on behalf of CVEE

candidates and donated to CVEE and/or its candidates.

4. Election Results

43. In the election, the Common Sense ticket swept all five Board seats, giving it an 8-1

majority on the board.

44. Thus, the current board consists of the following individuals (with their political faction

listed in parenthesis):

a. President Dana Baker (Common Sense)

b. Vice President William Lennartz (Common Sense)

c. Carl Barton (Common Sense)

d. Edward Norcross (Common Sense)

e. Joan Smith (Common Sense)

f. Mark Schur (Common Sense)

g. Kevin Mintz (Common Sense)

h. Alexander Sharpe (Common Sense)

i. Rob Floyd (CVEE)

45. On or about December 3, 2015, the new Board members were sworn in and took office at

the annual reorganization meeting of the Board.

E. PLAINTIFFS CONTRACT TERMINATED BY BOARD

46. As set forth below, upon taking power, the Common Sense faction purged the School

District of those employees and/or independent contractors including the plaintiffs - who

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openly supported and/or were perceived by Defendants as supporting the CVEE ticket,

which was now the minority party.

47. For each and every one of these employees and/or independent contractors, political

affiliation was not an appropriate requirement for their position, and political affiliation

was not necessary for the efficient operation of their position.

48. For example, the school board targeted the HR Director (Sylvia Rockwood), Director of

Cafeteria Services, High School Principal (Burdette Chapel), and District Construction

Manager (Kevin Weller), all of whom were members of the CVEE PAC, leading to

unplanned retirements and resignations.

49. On or about March 23, 2016, the school board voted unanimously to terminate the

Plaintiffs contract, effective June 30, 2016.

50. The District, via a letter from its Business Manager Steven Dart, informed Plaintiffs of this

decision via a March 24, 016 letter, which Plaintiff subsequently received.

51. The Board claimed, pretextually, that this decision was to save money.

52. However, this claim was not based in fact and was not permissible under the contract,

which only permitted early termination of the contract for cause, for specifically

enumerated reasons. None of these contractually-permissible reasons included termination

for financial reasons, nor was this decision actually made for financial reasons. Rather, this

decision was made to retaliate against Plaintiffs for supporting the CVEE ticket.

53. The school board then hired a temporary solicitor, at a bigger law firm that charged

approximately 50% more per hour, and charged for the time of clerical staff and non-

attorneys. Specifically, the new solicitor charged $190/hour for partners, $170/hour for

associates, $120/hour for paralegals, and $60/hour for administrative support.

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54. As noted above, Plaintiffs charged only $130 per hour for the work of the attorneys in the

office (the five Plaintiffs), and did not charge for the services of any non-attorney.

55. Rather, this decision to terminate Plaintiffs contract was based solely on their support of

the CVEE ticket.

56. The conduct of the Defendants, in essentially creating a political affiliation requirement for

certain employment/independent contractor positions and/or in retaliating against those

who supported the CVEE ticket, violates Plaintiffs First Amendment rights.

57. Defendants retaliated against each Plaintiff by unjustifiably terminating their employment

and/or contract with the School District, as set forth above.

58. As a result, the firm lost its Solicitor duties for the District, which equated to approximately

$150,000 to $250,000 annually, and represented approximately 25%-33% of the firms

annual revenue.

59. As a result of this retaliation, Plaintiffs have suffered lost pay, lost wages, lost front pay,

lost back pay, lost benefits, lost stipends, lost local counsel fees, other economic damages,

loss of lifes pleasures, loss of reputation, benefits, emotional distress, physical

manifestation of emotional distress, attorneys fees and costs, other damages.

COUNT I
ALL PLAINTIFFS V. ALL INDIVIDUAL DEFENDANTS
42 U.S.C. 1983
FIRST AMENDMENT VIOLATIONS

60. Plaintiffs adopt and incorporate the allegations in the above paragraphs as though each

were individually stated herein at length.

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61. Plaintiffs did actually engage in protected speech and association by supporting and/or

campaigning the minority CVEE faction, and also were perceived as being associated

with a minority political faction.

62. Political support for the majority faction was not necessary or appropriate for Plaintiffs

performance of their duties for the School Board.

63. Defendants violated the provisions of 42 U.S.C. 1983 in that Defendants, acting under

color of state law, deprived Plaintiffs of the privileges and immunities secured to them by

the First and Fourteenth Amendments of the United States Constitution and, in particular,

their right to hold employment without infringement of their First Amendment right to

freedom of speech and association.

64. Defendants willfully and recklessly took adverse employment action against Plaintiffs, in

order to deny Plaintiffs their First Amendment right to free speech and association.

65. Defendants actions were to penalize and retaliate against Plaintiffs for their exercise of

fundamental First Amendment rights of speech and association.

WHEREFORE, Plaintiffs respectfully request this Honorable Court:

i. Enter a declaratory judgment that Defendants retaliatory acts complained

of herein have violated and continue to violate the rights of Plaintiffs as

secured by the United States Constitution;

ii. Enjoin Defendants from continuing said retaliatory practices;

iii. Award Plaintiffs compensatory damages including but not limited to: pain,

suffering, past economic loss, future economic loss, back pay, front pay, lost local

counsel fees, wage increases, loss of lifes pleasures, loss of reputation, benefits,

emotional distress and other damages;

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iv. Award reasonable costs and attorneys fees;

v. Award punitive damages;

vi. Grant any other relief this Court deems just and proper.

COUNT II
ALL PLAINTIFFS V. CHAMBERSBURG AREA SCHOOL DISTRICT
VIOLATION OF 42 U.S.C. 1983
FIRST AMENDMENT VIOLATIONS

66. Plaintiffs adopt and incorporate the allegations in the above paragraphs as though each

were individually stated herein at length.

67. Plaintiffs did actually engage in protected speech and association, and also were

perceived as being associated with a minority political faction.

68. Defendant CASD developed and maintained a number of deficient policies and/or

customs which caused the deprivation of Plaintiffs constitutional rights.

69. Defendants policies and customs encouraged the individual defendants to believe that

they could violate the constitutional rights of Plaintiffs with impunity and with the

explicit or tacit approval of the CASD Board of School Directors.

WHEREFORE, Plaintiffs respectfully request this Honorable Court:

i. Enter a declaratory judgment that Defendants retaliatory acts complained

of herein have violated and continue to violate the rights of Plaintiffs as

secured by the United States Constitution;

ii. Enjoin Defendants from continuing said retaliatory practices;

iii. Award Plaintiffs compensatory damages including but not limited to: pain,

suffering, past economic loss, future economic loss, back pay, front pay, lost local

counsel fees, wage increases, loss of lifes pleasures, loss of reputation, benefits,

emotional distress and other damages;

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iv. Award reasonable costs and attorneys fees;

v. Award punitive damages;

vi. Grant any other relief this Court deems just and proper.

COUNT III
BLACK & DAVISON v. CHAMBERSBURG AREA SCHOOL DISTRICT
BREACH OF CONTRACT

70. The contract in place between Plaintiff Black & Davison and Defendant Chambersburg

Area School District was entered on or about May 27, 2015, and was to be in effect per

the terms of the contract from July 1, 2015 to June 30, 2018.

71. The School District terminated the contract prematurely, for reasons not permitted under

the contract.

72. In doing so, the District breached its duties under the contract.

73. As a direct and proximate result of Defendants actions, Plaintiffs have, and will in the

future, suffer pain, emotional distress, humiliation, embarrassment, inconvenience, loss

of pleasure and enjoyment of life, loss of reputation, lost wages, lost local counsel fees,

lost wage earning capacity, loss of benefits and past and future medical expenses.

WHEREFORE, Plaintiffs respectfully request this Honorable Court:

i. Enter a declaratory judgment that Defendants retaliatory acts complained

of herein have violated and continue to violate the rights of Plaintiffs as

secured by the United States Constitution;

ii. Enjoin Defendants from continuing said retaliatory practices;

iii. Award Plaintiffs compensatory damages including but not limited to: pain,

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suffering, past economic loss, future economic loss, back pay, front pay,

lost local counsel fees, wage increases, loss of lifes pleasures, loss of

reputation, benefits, emotional distress and other damages;

iv. Award reasonable costs and attorneys fees;

v. Award punitive damages;

vi. Grant any other relief this Court deems just and proper.

COUNT IV
PLAINTIFFS V. DEFENDANTS
VIOLATION OF 42 U.S.C. 1983
DUE PROCESS VIOLATIONS

1. Plaintiffs adopt and incorporate the allegations in the above paragraphs as though each

were individually stated herein at length.

2. Plaintiffs possessed a legitimate expectation of entitlement to employment through June

30, 2018. This expectation was grounded in the contract between Plaintiff and the

Defendant School District. Plaintiffs expectation of employment through June 30, 2018

constituted a property right.

3. By being terminated prior to the end of the term of the contract, and not being permitted

to work or be paid through June 30, 2018, Defendants violated Plaintiffs property rights.

4. Further, this property right was deprived without due process of law.

5. Defendants policies and customs encouraged the individual defendants to believe that

they could violate the constitutional rights of Plaintiffs with impunity and with the

explicit or tacit approval of the Board of School Directors.

WHEREFORE, Plaintiffs respectfully request this Honorable Court:

i. Enter a declaratory judgment that Defendants acts complained

of herein have violated and continue to violate the rights of Plaintiffs as

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secured by the United States Constitution;

ii. Enjoin Defendants from continuing said retaliatory practices;

iii. Award Plaintiffs compensatory damages including but not limited to: pain,

suffering, past economic loss, future economic loss, back pay, front pay, lost local

counsel fees, wage increases, loss of lifes pleasures, loss of reputation, benefits,

emotional distress and other damages;

iv. Award reasonable costs and attorneys fees;

v. Award punitive damages;

vi. Grant any other relief this Court deems just and proper.

JURY TRIAL DEMAND

Plaintiffs hereby demand a trial by jury on all issues so triable.

Dated: April 17, 2017 MARK B. FROST & ASSOCIATES

/s/ Mark B. Frost, Esq.

Mark B. Frost, Esq.
Ryan Lockman, Esq.
Counsel for Plaintiffs

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