Attorneys seek missing exhibit in Hallowich case

April 4, 2013

The courtroom and chambers of former judge Paul Pozonsky are on the same floor in the Washington County Courthouse as the prothonotary, the official repository for documents in civil cases, and mere yards away.

But a document in the case of a Mt. Pleasant Township family’s settlement with four natural gas companies never made it from the judge’s office to the prothonotary back in August 2011, and nearly two years later, no one knows why. If a crucial document is missing from a previously secret court file after a judge orders the file to be made public, must it be produced?

That question was the topic of debate Thursday in Washington County Court in the case of Stephanie and Chris Hallowich, who sued, claiming they were harmed by natural gas companies Range Resources Corp., Williams Gas/Laurel Mountain Midstream, MarkWest Energy Partners LP and MarkWest Energy Group LLC.

Last month, President Judge Debbie O’Dell Seneca ordered that the file concerning the Hallowich settlement should be unsealed so newspapers seeking access to the information on behalf of the public could bring to light what turned out to be a $750,000 settlement.

O’Dell Seneca wrote in a 32-page opinion overturning Pozonsky’s sealing of the case file that businesses have no right to privacy.

But the day O’Dell Seneca’s order came down, attorneys for the Observer-Reporter and Pittsburgh Post-Gazette examined court documents in the 56-page file and discovered that a large chunk of it was missing.

A page was marked “Exhibit B,” but there were no papers accompanying it.

“Are you saying someone removed it?” the president judge on Thursday asked Frederick N. Frank, attorney for the Post-Gazette.

“Absolutely, your honor,” Frank replied.

“There is no evidence anyone removed from the file an exhibit,” protested MarkWest attorney Phillip Binotto. “If somebody goofed up, (the newspapers) don’t get to augment the record now. What is relevant is what is filed. I’m guessing it wasn’t filed by the judge.”

The Observer-Reporter disagrees.

“Reference was made to Exhibit B, which clearly indicates it was part of the original file. It is imperative that the complete file be restored and unsealed for public consumption,” said Editor Elizabeth Rogers.

Exactly what happened to the document pertaining to the Hallowich’s minor children, and why it was not part of the court file, remained a mystery at Thursday’s hearing.

Testimony focused on a court date Aug. 23, 2011, when the Hallowich case was before Pozonsky.

To protect his clients – which included the Hallowiches and their two children – their attorney, Peter Villari, testified he was under the impression that the hefty settlement agreement was part of the court record.

Under subpoena, Villari brought two copies of the missing settlement agreement – each about an inch and a half thick – to court Thursday, but he took them back to the Philadelphia area with him.

“MarkWest and the other attorneys do not want that document of record (revealed). There’s no fraud here,” Binotto said. “The judicial record has been opened, and they (the newspapers) don’t like what they have.”

“I left the document with Judge Pozonsky with the assumption it would be filed,” Villari testified.

“Did you give anyone permission, including the judge, to remove Exhibit B from the file?” Frank asked.

“No, I did not,” Villari replied. “The intention was that it be filed after the record was sealed. One, we’re dealing with minors, and there is caution that these children are protected. Two, to be frank with anyone in here, I’m covering my rear end.”

Part of the court file that was made public gives the Hallowich children, who were suffering no ill effects from the gas industry at the time of the settlement, the right to go back to court in the future if they have health concerns.

Villari said he avoided filing the settlement agreement prior to a hearing in chambers before Pozonsky because it would have created a “window” in which it was a public document and therefore open to scrutiny.

Once Pozonsky approved the settlement, “the record had to be sealed first to keep that from leaking out,” Villari testified. “One of the defense lawyers volunteered to take it to the prothonotary. I personally did not walk it to the prothonotary. … I assume it would get filed, and it didn’t. Your honor, I honestly didn’t know it wasn’t filed until all this blew up.”

“There is no evidence that it was removed,” Binotto said of the missing document.

“What is the court record?” Frank asked. “The only person who knows is Mr. Villari. The minute it was given to the judge, it became part of the court record. If somehow that agreement was not filed, that cannot take away from what was the judicial record.

“There is a history of (Pozonsky’s) court destroying documents.”

Last year, a few months before his abrupt retirement, Pozonsky issued an order May 1 to destroy “any and all evidence” related to 17 closed cases spanning from 1998 to 2011. Most of the cases were drug-related, while a few were violent crimes involving a firearm or a knife. Pozonsky’s order does not specify who requested the destruction of evidence, nor does it indicate who was to destroy it.

The Hallowich case, however, is civil litigation.

“One of the attorneys did not follow up with filing the record on the date the record was sealed,” said Binotto, who was not present at the August 2011 hearing before Pozonsky. “Whatever the record is, it is.”

Attorney Erin W. McDowell, who represents MarkWest, was present at the hearing nearly a year and a half ago before Pozonsky. In answer to a question O’Dell Seneca posed, McDowell said, “I did not look at what was presented to the judge.”

Attorney Colin Fitch, who represents the Observer-Reporter, told O’Dell Seneca, “The fact is that they agreed it should be part of the record. They agreed it should be in the record, but it just didn’t get there.”

Frank argued, “The petition for approval (of the settlement) states the agreement is attached. It doesn’t say it will be. It says it’s attached.”

In a letter last month to the newspapers’ attorneys, McDowell wrote, “Judge O’Dell Seneca’s opinion makes it very clear that you are only entitled to review the documents that were filed of record, and you agreed. … Accordingly, my client will not agree to provide you with a copy of the settlement agreement or agree to file (it) in this matter.

“We would also consider any attempts by (the Hallowiches) to modify the record to be a violation of the confidentiality provisions set forth in the settlement agreement.”

The president judge asked the newspaper and natural gas companies to submit briefs on the issue.

O’Dell Seneca said she received a phone call from a court employee who is now working in the former Pozonsky office advising that she discovered paperwork labeled “Hallowich.” O’Dell Seneca examined the papers for the first time in court, listing more than two dozen pieces of correspondence, emails and procedural filings, but no missing settlement agreement. Calling them “superfluous documents,” she said she saw no reason to keep the papers.

Barbara S. Miller covers politics, Washington County government and a variety of other topics for the Observer-Reporter. She is a graduate of Washington & Jefferson College, majoring in English and history. Follow her on Twitter @reporterbarb.

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