News

November 5, 2009

Top court overturns CV verdict

Justices cite the $3.5 million defamation case having been handled by a disgraced former judge. A new trial is ordered.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter
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HARRISBURG – The state Supreme Court on Wednesday overturned a $3.5 million defamation verdict against The Citizens’ Voice newspaper and ordered a new trial, ruling there was a “pervasive appearance of impropriety” in how the case was assigned to and handled by former Luzerne County judge Mark Ciavarella.

The ruling in the case of Thomas Joseph of Pittston marks the second time in less than a week that the state’s high court has stepped in to undo what it says was a wrong committed by Ciavarella. Last Thursday the court vacated the convictions of thousands of juveniles who appeared before Ciavarella after finding he had violated their rights.

The Citizens’ Voice appeal stems from a verdict Ciavarella entered in favor of Joseph following a non-jury trial in 2006. The case centered on a series of articles the newspaper ran in 2001 regarding searches that were conducted at the home and business of Joseph and reputed mobster William “Billy” D’Elia.

Joseph was never charged with any crime in connection with the searches. He filed suit against the newspaper, alleging the articles damaged his reputation.

The verdict was initially upheld by the state Superior Court. Attorneys for The Scranton Times, parent company of The Citizens’ Voice, took a second look at the case after the arrests of former county judge Michael Conahan and Ciavarella in January on charges they accepted millions of dollars from the owner and builder of two juvenile detention centers.

In February the attorneys filed a petition with the Supreme Court, asking it to review the case based on evidence they discovered that showed Conahan had improperly steered the case to Ciavarella.

The attorneys also obtained a statement from Robert Kulick, an associate of D’Elia’s, who claimed D’Elia told him Conahan had assured D’Elia there would be a “positive outcome” for Joseph.

The Supreme Court appointed Judge William Platt of Lehigh County to review the case. Platt held a two-day hearing in July and issued a report in August, recommending the verdict be tossed.

In accepting Platt’s recommendation, the high court said it found ample evidence to support the newspaper’s contention that Conahan intentionally skirted court rules regarding the assignment of cases to ensure the Joseph matter was heard by Ciavarella.

The court noted that attorneys for the newspaper had repeatedly expressed concerns that Joseph was “judge shopping,” but that Ciavarella and Conahan assured them the case would be randomly assigned for trial.

“The evidence adduced at the hearing, however, showed these reassurances to be misleading, or even plainly false,” the court wrote.

Among the key evidence was a handwritten note that Ann Burns, deputy administrator of civil trials, attached to a computer database that indicated the case was assigned to Ciavarella at the direction of Conahan and former county court administrator William Sharkey.

Burns had testified she inserted the note because she found the assignment of the case to be so out of the ordinary that she “wanted to be protected.”

The court said it was also troubled by testimony regarding Conahan’s longtime association with D’Elia. Two waitresses had testified Conahan and D’Elia met regularly for breakfast at a local restaurant. A court employee also testified she delivered unmarked envelopes from D’Elia to Conahan at the courthouse.

“The inherently troubling nature of Conahan’s and Ciavarella’s compromised position as jurists is enhanced, in this case, given the subject matter of this defamation lawsuit concerned newspaper articles reporting on the undisputed fact of a federal investigation into D’Elia’s and Joseph’s alleged ties to organized crime activities,” the court wrote.

Thomas McGough, attorney for The Citizens’ Voice, said the newspaper was pleased with the ruling. He declined further comment.

Joseph’s attorney, George Croner, did not immediately return a phone message left at his office.

The case will now be returned to Luzerne County Court for assignment to a new judge.

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

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