W-B activist awarded $67,000

civil rights suit Jury says rights of Denise Carey violated as city sought legal fees in fire station controversy

SCRANTON – A federal jury on Tuesday awarded city fire house activist Denise Carey $67,000 in her civil rights suit against the city and Mayor Tom Leighton, but Carey says the citizens of Wilkes-Barre are the real victors in the case.

“This definitely was not about the money. It was about the principle,” a teary-eyed Carey said moments following the jury’s verdict in federal court in Scranton. “This is a win for the community. Now no one has to be afraid of speaking up. That was the point of this.”

The eight-member jury deliberated for a little more than four hours before finding that Leighton had retaliated against Carey by seeking attorney fees in connection with her failed bid to overturn his 2004 decision to close an East Northampton Street fire station.

The panel, which heard testimony over five days, found Leighton’s actions in seeking the fees and critical comments he made about Carey to the media violated her First Amendment right to free speech. It awarded her $15,000 in compensatory damages for emotional distress, $2,000 for lost income and $50,000 in punitive damages against Leighton.

The total payout will likely be much higher, however, because Carey’s attorney Cynthia Pollick will be able to collect attorney fees in addition to the judgment. That amount has not yet been calculated, but based on other similar cases Pollick recently handled it’s likely her fees will exceed $100,000.

It was unclear Tuesday how much of the jury award might be covered by insurance. One of the city’s insurance companies, United National Insurance, maintains it is responsible to pay only economic losses and not any damages awarded for emotional distress. There is also a question of whether the punitive damages against Leighton will be covered.

Leighton declined to comment on the verdict on the advice of the city’s attorneys Jack Dean and Mark Bufalino.

Dean said the city will appeal. Dean said he intends first to file a motion with the trial judge, Thomas I. Vanaskie, asking him to overturn the verdict. If that is denied, the city will appeal to the Third Circuit Court of Appeals.

In her closing argument, Pollick had called upon them to “send a message” to Leighton.

“Mayor Leighton may be able to take away a fire station, but don’t let him take away our constitutional rights,” Pollick said. “A verdict in Denise Carey’s favor tells citizens you are safe. You can speak out and you don’t have to fear that a politician or the government can come back and sock you with a hefty attorney bill.”

Bufalino insisted Leighton did not retaliate against Carey and was merely trying to uphold the law.

“This case was not about her speaking out. It was about following the law,” Bufalino said in his closing. “He is the mayor of the city of Wilkes-Barre. He has an obligation and an oath, not just to Ms. Carey, but to all citizens.”

The case stemmed from the city’s attempt to collect $11,056 in attorney fees for city solicitor William Vinsko’s work in challenging a petition Carey and others circulated in 2005.

The petition sought to place a question on the ballot that would amend the city’s home rule charter. If successful, that ultimately would have allowed fire house supporters to place the closure of the fire station on the ballot to allow voters to decide its fate. Problems arose after several residents said they were only told the petition was to open the fire house and were not advised it would alter city government.

Leighton insisted he was justified in seeking the fees because Carey and others had committed fraud by obtaining signatures under false pretenses. A Luzerne County judge awarded the city the fees in August 2005, but the ruling was overturned on appeal.

Carey alleged Leighton’s real motivation was to punish her for speaking out. Her primary reason for filing her suit was to prove that and to clear her name, she said.

Carey said the past four years have been emotionally draining as her cases worked their way through the court system. She credited her husband, Tom, and children for giving her the strength to continue.

Carey said she has not given up on her fight to get a fire station in the Heights. A separate federal lawsuit Carey filed that challenged the station’s closure remains on appeal in the Third Circuit Court of Appeals.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.

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