The Legal Intelligencer Blog

Two Named to Fill Vacancies on U.S. Middle District Court

By Saranac Hale Spencer
Of the Legal Staff

President Obama has nominated Matthew Brann and Malachy Mannion for the two vacant seats on the bench in the Middle District of Pennsylvania.

Brann, a partner at Brann Williams Caldwell & Sheetz in Bradford County, is a former chairman of the county’s Republican committee and is a graduate of Penn State’s Dickinson School of Law.

Mannion has been a magistrate judge in the Middle District since 2001 and, before that, was an assistant U.S. attorney there. For four years, he was in private practice as a principal at Hourigan, Kluger, Spohrer & Quinn in Scranton.

"Malachy Mannion has served the public as a U.S. attorney and as a federal magistrate judge, and I will push for a speedy confirmation process in the Senate. I have known Mal for years and he is an excellent lawyer whose integrity is beyond reproach," Senator Robert P. Casey Jr., D-Pa., said in a press release. "Matthew Brann, along with an impressive career in private practice, has demonstrated a commitment to the community that will make him an outstanding judge.”

"On a bipartisan basis, I have been working closely with Sen. Casey on judicial nominations for our state to help confirm qualified, experienced individuals with unquestioned honesty and integrity. I am confident that these two nominees will live up to these standards and hope that the Senate confirms them in a timely manner," Senator Pat Toomey, R-Pa., said in a press release.

The seats became open upon A. Richard Caputo’s retirement in 2009, and Thomas Vanaskie’s elevation to the U.S. Court of Appeals for the Third Circuit in 2010.

The reinforcements, if confirmed, would restore the Middle District bench to full strength.

“We try not to dwell on it,” Yvette Kane, chief judge in the Middle District, said earlier this week of the four active judges who have been saddled with heavy caseloads in absence of a full complement on the bench.

The national average number of days from the announcement of a vacancy to the nomination to fill it is 399, according to Russell Wheeler, of the Brookings Institute. Wheeler has published several studies on the judicial nomination process and its politics.

Suit Over Lackawanna Co. Guardian Ad Litem Changes Defendants

By Ben Present
Of the Legal Staff

Three judges — instead of the entire county judiciary — have been named as defendants by a Northeast Pennsylvania man who has filed a lawsuit over Lackawanna County’s guardian ad litem program.

Judges Trish Corbett and Chester T. Harhut, along with President Judge Thomas J. Munley, were named Friday in an amended complaint filed by plaintiff Michael Stefanov. Corbett presided over a custody dispute to which Stefanov was a party, Harhut was in charge of the family court division and Munley serves as president judge. They were named in the amended complaint and the Lackawanna County Court of Common Pleas has been removed from the complaint as a defendant.

All three judges are now being sued in their “official capacity.” The court was being represented by Michael P. Daley, an attorney for the Administrative Office of Pennsylvania Courts. It was unclear if Daley would be representing the judges, who did not have docketed counsel as of Monday afternoon. Art Heinz, a spokesman for the Administrative Office of Pennsylvania Courts, declined to comment on the amended complaint.

In his lawsuit, Stefanov challenges the appointment of guardian ad litem Danielle Ross and her actions in the custody case.

The federal judge assigned to the case, U.S. District Judge A. Richard Caputo of the Middle District of Pennsylvania, has not yet ruled on a motion to dismiss that has been made by the court. The court, along with Ross in a separate filing, have asserted immunity in asking Caputo to dismiss them from the suit.

Stefanov, in the amended complaint, is asking for declaratory relief in the form of an order declaring the county’s GAL system and Ross’ involvement in Stefanov’s life “unlawful and unconstitutional.” In a plea for injunctive relief, Stefanov asked the court to block any further implementation of the GAL system as well as Ross’ involvement in his own, or his son’s, life.

Stefanov renewed claims that Ross threatened parents with sanctions if her recommendations were not followed while the court’s family court division abdicated its duties to Ross and "rubberstamped" her recommendations into court orders. He accuses all named defendants of engaging in conduct that violated Pennsylvania law governing when a guardian ad litem may be appointed to a dispute.

Stefanov’s attorney, Paul J. Cianci of the Levin Legal Group in Huntingdon Valley, Pa., declined to comment on the amended complaint.

Ross’ attorney, Nicholas S. Mattise of Scranton firm Mattise & Kelly, was not immediately available for comment.

Ciavarella's Post-Trial Motions Denied

By Zack Needles
Of the Legal Staff

U.S. District Judge for the Middle District of Pennsylvania Edwin M. Kosik has denied former Luzerne County Judge Mark A. Ciavarella Jr.'s post-trial motions.

As previously reported here, Ciavarella had petitioned either to be granted a new trial or to have his racketeering and honest services fraud convictions overturned, which would have left him guilty of only tax fraud charges.

But in a five-page order issued Thursday, Kosick said the former judge's arguments were groundless.

In February, a federal jury in Scranton found Ciavarella guilty of 12 of 39 counts of corruption filed against him, including racketeering, racketeering conspiracy, honest services mail fraud, money laundering conspiracy and a host of tax fraud charges. Ciavarella was cleared of extortion, bribery and honest services wire fraud charges, however.

In a series of motions filed in March, Ciavarella argued that the prosecution's evidence failed to prove that the allegations of racketeering and money laundering conspiracy occurred within the five-year statute of limitations or that money he received from the builder of two juvenile detention facilities was illegal in any way.

Kosik, in his order, sided with he prosecutors in the case, who had argued that this issue was waived because the defense failed to bring it up before trial. 

Ciavarella had also argued in his motions that Kosik had erred by not allowing him to introduce into evidence comments made by Assistant U.S. Attorney Gordon Zubrod during plea hearings for developer Robert K. Mericle and a former co-owner of the juvenile detention facilities, Robert J. Powell.

Ciavarella had hoped to use those statements, which included Zubrod saying Mericle's payments to Ciavarella amounted to nothing more than a finder's fee, in his defense.

Kosik, however, said in his order that Zubrod's statements "were not the equivalent of testimonial statements of fact" and that, even if the court had erred by not allowing those statements as evidence, "the exclusion of a statement by an attorney in another trial, while held to be a party admission, was ruled a harmless error."

Ciavarella had also hoped to keep out of the case any reference to civil cases he heard as a judge involving Mericle or Powell. Kosik let prosecutors mention those cases and, in Thursday's order, sided with their argument that the evidence was "intrinsic" and part of the proof of the charges.

Kosik also denied Ciavarella's motion for recusal, whichhad been part of the defense's pre-trial motion as well, saying the defense provided no new reasons for recusal.

Zack Needles is a reporter for The Legal. He can be contacted at [email protected] or 215-557-2493. Follow him on Twitter at ZNeedlesTLI.

Reporter's Notebook: Powell a King-Sized Presence on Witness Stand

By Leo Strupczewski
Of the Legal Staff

Robert J. Powell's nearly two hours on the witness stand at Mark Ciavarella’s federal racketeering trial Tuesday was highly eventful.

And since The Legal's story could only covered a small portion of the proceedings, this blog post -- a good place to empty the reporter's notebook -- can fill out the picture. This is the sort of material that could show up in later stories or fuel newsroom discussion. Or, it might never appear at all. So, consider yourself lucky. You're "in the know."

First things first: Bob Powell is big. Tall, wide. More tight end than power forward.

So big, in fact, that U.S. District Court Judge for the Middle District of Pennsylvania Edwin Kosik asked Powell as he made his way to the stand whether he was with the Pittsburgh Steelers. Powell seemed to misinterpret the joke as a question and told Kosik he "didn't have a dog in the fight," an obvious reference to the Super Bowl.

Seems Powell figured Kosik was inquisitive of his fandom when others interpreted the question as Kosik joking that Powell could play in the National Football League.

Keeping with appearances, Powell was an unshakable presence. True, he wasn’t cross-examined Tuesday, but his command on the stand was impressive. It fit his size. He was sure of himself and, unprompted by Assistant U.S. Attorney Gordon Zubrod, offered his own views on the morality of Ciavarella's alleged actions. Powell likewise was a natural storyteller. His recollections of meetings with the judges were delivered with a certain polish, but did not seem rehearsed. Jurors likely won’t have a hard time choosing to believe him.

More than Ciavarella, it was fellow former judge Michael T. Conahan whose name seemed to surface the most during Powell's testimony.

Powell met Conahan, who has since pleaded guilty to charges related to the alleged scheme, when the former judge was still serving as a magisterial district justice. It was only through his friendship with Conahan that Powell met Ciavarella.

Powell also tried to paint Ciavarella as the mastermind of the scheme to build a private juvenile detention facility, telling the court that Ciavarella brought up the idea of Powell backing such a place with Gregory Zappala, since the two had done a lot of bond work together.

Zappala became a co-owner in the facility but has not been charged with any wrongdoing.

Perhaps most ominous about that portion of Powell's testimony was that his conversation with Ciavarella took place while a jury was deliberating in a case Powell had before the judge. During the time the jury was out, Ciavarella asked Powell and his opposing counsel whether there was an objection to him adjudicating some juveniles while they waited for the jury to reach a verdict. No one objected and Ciavarella sent the attorneys outside the courtroom.

The kids walked in, Powell said, and some were in shackles. One reminded him of his son, he said, and when Ciavarella asked him about the proceedings afterward, he told him the county needed a new facility.

Ciavarella told Powell that maybe after the trial was over, they could “get together to figure out [how to] help the county."

"I thought, sure, that'd be a great thing to do," Powell said.

The day's testimony ended when a juror's cell phone rang.

Kosik has previously said testimony would wrap up at 3 p.m. and the phone rang around 2:50. Kosik looked at Zubrod, who was still questioning Powell on direct examination, and told him it was "a sign from God."