News

April 8, 2009

High court orders hearing on $3.5M verdict

Evidence of tainting spurred by corruption charges prompts review of ruling against Scranton Times L.P.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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WILKES-BARRE – Saying there is evidence of taint in the assignment of the case, the state Supreme Court on Tuesday ordered an evidentiary hearing be held to determine whether a $3.5 million defamation verdict entered against Scranton Times L.P. by disgraced Judge Mark Ciavarella should be overturned.

The ruling, issued in the case of Thomas Joseph, marks the second time in less than two months that the high court has agreed to intervene in a Luzerne County case based on allegations raised in the ongoing corruption probe into the county judiciary.

The court based its decision on newly discovered evidence The Scranton Times, parent company of The Citizens’ Voice, brought to light after the Feb. 12 guilty pleas Ciavarella and Judge Michael Conahan entered to federal corruption charges.

The newspaper is seeking to overturn a verdict Ciavarella entered against it, several executives and former Citizens’ Voice reporter Ed Lewis following a non-jury trial held in 2006.

Joseph filed suit in 2002 against the newspaper and Lewis, who now works for The Times Leader, over a series of stories that appeared in 2001 regarding searches of Joseph’s home and businesses. Joseph claimed the stories improperly tied him to a money-laundering investigation.

Attorneys for The Scranton Times filed a motion in February seeking a new trial, arguing they had discovered that Conahan and former court administrator William Sharkey had improperly intervened to assign the case to Ciavarella. Sharkey pleaded guilty on Feb. 17 to stealing more than $70,000 from the county.

The newspaper also cited a statement given by area businessman Robert Kullick, who claimed reputed area mobster William “Billy” D’Elia had told him that Conahan had said the outcome of the case “was going to be positive” for Joseph.

The motion was filed one week after Conahan and Ciavarella pleaded guilty to accepting more than $2.6 million in kickbacks in exchange for rulings that favored the owner and builder of a local juvenile detention center.

In its ruling, the Supreme Court said the newspaper had raised a “colorable” claim that the “irregular assignment” and the trial were tainted by the involvement of Conahan and Ciavarella.

It returned the case to county court and appointed William H. Platt, president judge of Lehigh County Court, to preside over an evidentiary hearing as soon a possible. Platt is to make a recommendation to the state Supreme Court regarding whether a new trial is warranted.

Tim Hinton of Scranton, attorney for The Scranton Times, said the newspaper is pleased with the high court’s ruling and looks forward to presenting its case before Platt.

Hinton declined to comment on the merits of the case, but said the court’s order indicates that the newspaper need only show that there was an “appearance of impropriety” in either the assignment or the trial of the case in order to prevail on its request for a new trial.

Joseph’s attorney, George Croner of Philadelphia, said he had anticipated the high court would grant a hearing given recent developments in the corruption probe. He said he remains confident that the verdict will stand once all the evidence is heard.

“Initially the relief they sought was to vacate the judgment and send it back for a new trial. That did not happen,” Croner said. “Allegations have been made. The Supreme Court appointed a judge to look into them. That’s a long way from vacating a judgment and ordering a new trial.”

Croner said the evidence will show that Ciavarella was assigned to the case only after The Scranton Times sought the recusal of Judge Joseph Augello, who was assigned to hear a motion to dismiss the lawsuit, and Conahan, who recused himself from ruling on Joseph’s request for records from First National Community Bank because he served on the bank’s board at the time. Conahan has since resigned from the board.

Croner also questioned the credibility of Kullick, who is awaiting sentencing on federal gun charges. Croner said Kullick has no direct knowledge of the case. His statement is based on alleged comments made to another person, who then relayed those comments to Kullick.

“Conahan told D’Elia that Ciavarella told him that the outcome was going to be favorable to Mr. Joseph. That tells me Mr. Kullick knows nothing of what went on in my case,” Croner said. “If that’s the quantum of evidence in the evidentiary hearing, I would suspect the judgment would stand.”

In accepting the case the Supreme Court invoked its king’s bench power, a rarely used, extraordinary action reserved only for cases of immediate public importance.

The high court previously invoked the power in February, when it appointed senior Judge Arthur Grim of Berks County to review all cases Ciavarella handled in juvenile court dating from 2003.

The court recently approved Grim’s recommendation to erase records of potentially hundreds of juveniles who committed minor offenses. He is continuing his review of other cases.

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

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