The Herald, Sharon, Pa.

August 14, 2013

Toth wins criminal case, vows civil case revenge

By Joe Pinchot
Herald Staff Writer

SOUTH PYMATUNING TOWNSHIP — Kurt D. Toth emerged from a courtroom Tuesday with his fists raised in jubilation, telling his supporters he was ready to party.

Fighting criminal charges that he disrupted a South Pymatuning Township supervisors meeting was money well spent, he said after a judge found him not guilty in a non-jury trial.

His jubilation took a vengeful turn when he said he plans to get that money back from the township through a civil suit that is pending in federal court.

“They’re going to reimburse me for my time and effort and my great attorney, Charlie Steele from Pittsburgh,” Toth said.

Whether he is reimbursed anything is an issue for another day. He can sleep easy now that the criminal charges are gone, he said.

“I had a lot of sleepness nights over this for false arrest,” Toth said.

Toth, 46, of 3710 Orangeville Road, a real estate investor, was charged with failing to disperse, disrupting a lawful meeting and two counts of disorderly conduct stemming from his actions June 12, 2012.

Toth said he wanted to ask supervisors about the appointment of Geno Guerino to the township’s board of auditors. Guerino, who resigned soon after the appointment, did not live in the township and told Toth that he was appointed after Supervisor Mark Presley asked him to accept the position.

The auditors set the salary for the working supervisor – in this case, Presley.

“It was a wrongful appointment,” he said.

Toth asked how Guerino was appointed and then-Supervisor Michael Nashtock responded that Guerino had approached him in the past and expressed an interest in the position.

Toth told Nashtock the answer was a lie and asked if Guerino had been asked to apply but never got an answer in the ensuing chaos.

Nashtock testified that Toth’s posture was “somewhat threatening.”

“His voice raised,” Nashtock said. “When people become aggravated you just don’t know what they’ll do.”

Nashtock became “concerned” that Toth would “use aggression toward the board members.”

At one point, Nashtock asked Toth to sit down, but admitted the rules on public speaking rarely are strictly enforced and he did not order Toth to sit or tell him he was out of order.

Police patrolman Andreu Foriska said Toth was “uncooperative, unhappy” with Nashtock.

“It was quickly escalating to disorderly behavior,” Foriska testified.

Foriska also said Toth “badgered” and “harassed” the supervisors.

Foriska approached Toth and asked him to leave. When he put a hand on Toth’s wrist, Toth pulled away. Foriska pulled his Taser and turned it on, activating a laser pointer that he aimed at the left side of Toth’s chest.

Toth left the meeting with Foriska following.

Toth said Nashtock never cut him off from speaking and Presley appeared to be ready to answer him when Foriska intervened.

Mercer County Common Pleas Court Judge Thomas R. Dobson dismissed the disorderly conduct and failing to disperse charges after Assistant District Attorney Daniel Davis rested his case. The judge said the evidence was insufficient and Toth need not present a defense.

Prior to announcing the verdict of not guilty on the charge of disrupting a lawful meeting, Dobson allowed Toth’s supporters – who had been sequestered because they were on the witness list, but never testified – to be called into the court room.

Dobson said Toth, Foriska and Nashtock share blame for the unpleasantness at the meeting.

“There was simply no need,” for Foriska to step in, Dobson said. “Control of the meeting was up to Mr. Nashtock.”

“You escalated this,” Dobson told Foriska, who was about four months into his first police job at the time.

Police forces are not the security forces for government, he said.

“They don’t interject themselves into the meeting,” Dobson said.

Nashtock also “failed,” Dobson said. “He should have either asked that Mr. Toth be removed or told the officer to stop.”

Toth was not without fault. He did not show respect or restraint and needs to find other ways to get his message out – through the ballot box, the media or the courts – instead of pressing public officials who are not going to simply admit their actions were wrong because he wants them to, the judge said.

“Was he (Toth) being a pain, yes, but he wasn’t there to disrupt the meeting,” Dobson said.

The judge also said that one of the hallmarks of democracy is the citizenry being able to call officials on the carpet for their actions.

“Democracy is messy,” he said. “It’s supposed to be. They’re trying to sanitize it.”

Dobson had the benefit of a recording of the meeting made by resident Robert Layman, and a transcript of the words spoken at that meeting.

Dobson’s verdict was greeted with applause by Toth’s supporters, and that outburst was answered with anger by the judge.

“That is not done in a courtroom,” he said.

During the trial, Dobson had admonished Toth for laughing at a statement Nashtock made during his testimony.

Davis said he was disappointed by the verdict, but said, “That’s the judge’s call, not mine.”

Defense attorney Charles E. Steele said the verdict shows that citizens have a right to question the actions of their government.

“It was an interesting collision of the criminal statutes and the U.S. Constitution,” he said. “Today, the Constitution won.”

The verdict reactivates Toth’s civil suit against Foriska, in which he charges the policeman with assault, retaliation and violating his free-speech rights.

Foriska had answered the suit by saying he acted reasonably and with probable cause, and that he used the Taser appropriately. Toth alleges Foriska jammed the Taser in his ribs but Foriska testified he never touched Toth with the electronic shocking device.

When Tuesday’s questioning veered into issues raised in the civil case, Dobson brought the focus back where he thought it should be.

“This is not a civil case,” he said. “I see a lot of posturing for the civil case.”

Toth also has filed a petition in common pleas court asking a judge to review the District Attorney office’s decision not to pursue criminal charges against Foriska based on a complaint filed by Toth. No action has been taken on the petition since it was filed in January.

Toth settled for $30,000 a previous federal suit he had filed against the township stemming from two criminal cases filed against him in 2011. Toth pleaded no contest to a charge of disorderly conduct in one case, and the second was withdrawn.