Felon, corrupt judge key to CV libel case

By Terrie Morgan-Besecker tmorgan@timesleader.comLaw & Order Reporter

ALLENTOWN – The decision of whether to grant The Citizens’ Voice newspaper a new trial in a defamation case will largely depend upon which of two men Lehigh County Judge William Platt decides to believe.

Should he take the word of Robert Kulick, a wealthy businessman and convicted felon awaiting sentencing on federal firearms charges? Or should he believe Mark Ciavarella, a once respected Luzerne County judge ousted from office on corruption charges?

The two men were the key witnesses in a two-day hearing Platt held in Lehigh County Court that will determine if the $3.5 million verdict Ciavarella rendered in favor of area businessman Thomas Joseph following a non-jury trial in 2006 should be overturned.

The state Supreme Court ordered the hearing after attorneys for the Scranton Times LP, parent company of The Citizens’ Voice, uncovered evidence that former Luzerne County President Judge Michael Conahan had improperly steered the case to Ciavarella – Conahan’s co-defendant in a corruption case.

W. Thomas McGough, the newspaper’s lead attorney, built the case around the testimony of Kulick, who told of how Conahan frequently met reputed area mobster Billy D’Elia for breakfast to discuss cases. It was during one of those meetings that Conahan assured D’Elia, 62, of Hughestown, a friend of Joseph’s, that there would be a “positive outcome” for Joseph, Kulick testified.

Ciavarella, who testified Thursday, was equally adamant that there was no impropriety either in the assignment of the case to him or in the rulings he issued.

“Who, if anyone, sought to influence you in the Joseph case?” George Croner, Joseph’s attorney, asked the former judge.

“No one whatsoever,” Ciavarella replied.

“Were you ever offered money or anything of value with respect to any decision you made in the Joseph case?” Croner continued.

“Absolutely not,” Ciavarella said.

Croner and McGough took turns ripping apart the credibility of Kulick and Ciavarella, respectively.

Kulick, the husband of Michelle Mattioli, whose father owns Pocono Raceway, has had several run-ins with the law.

He was convicted of federal income tax charges in 1988 and served 10 months in prison. That case was the basis for the firearms charges filed against him in 2008. As a convicted felon, he was forbidden to possess firearms, which were found in his home.

Kulick is scheduled to be sentenced in August on the firearms charges. He acknowledged that he came forward with the information about D’Elia’s alleged comments about the Joseph case because he hopes it will win him a reduced sentence.

Ciavarella has his own credibility issues. He and Conahan pleaded guilty in February to depriving the public of their honest services and tax evasion. Federal prosecutors say the judges accepted more than $2.6 million in kickbacks in exchange for rulings that benefited the owner and developer of two juvenile detention facilities.

Speaking after the conclusion of the hearing Thursday, Croner said the newspaper had failed to show how any of the actions Conahan and Ciavarella took related to their corruption case had any bearing on Joseph’s defamation case.

He questioned the relevance of the testimony of Kulick and others who told of the meetings between Conahan and D’Elia at an area restaurant.

“The judge who tried this case came here and said no one ever talked to him about this case,” Croner said. “If we start throwing out cases because D’Elia and Conahan went to breakfast, you’ve got to throw all cases out.”

Attorney Tim Hinton, who represented The Citizens’ Voice along with McGough and several other attorneys, said Kulick’s testimony and the relationship between Conahan and D’Elia was only part of the case. The newspaper also had documents that showed Conahan took a highly unusual action when he intervened to assign the case to Ciavarella.

That evidence included the deposition of Ann Burns, an official with the county court administrator’s office. Burns gave the sworn statement last month because health concerns prevented her from testifying in person.

In her statement, which was read in open court, Burns told of how she made a notation in a computerized database indicating that Conahan and former Court Administrator William Sharkey had directed her to assign the Joseph case to Ciavarella, even though non-jury trials that month were supposed to go to former Judge Ann Lokuta.

Burns said the directive was “out of the ordinary,” and that she made the notation “because I wanted to be protected myself.”

“I think we produced evidence of judicial irregularity,” Hinton said after the hearing. “Coupled with the glaring corruption of Conahan and Ciavarella, I think the judgment in this case certainly deserves to be vacated.”

Platt took the case under advisement. He has 30 days to issue a recommendation to the state Supreme Court, which will decide if a new trial is granted or whether to dismiss the case entirely.