A Luzerne County businessman may continue his defamation suit against a local newspaper on allegations that it falsely tied him to mob activity and a federal investigation, a common pleas judge there has ruled.
Judge Joseph Van Jura rejected a series of defense arguments seeking summary judgment, ruling that too many of the issues contained disagreements that “tellingly demonstrate that there are multiple facts material to the determination, not only of the ultimate outcome of the case, but of key legal conclusions that must be resolved by a factfinder at trial.”
“In the present case, there is clearly disputed evidence about the ‘falsity’ of the articles,” Van Jura wrote in Joseph v. The Scranton Times . “For example, several of the articles, in which the individual or business plaintiffs were mentioned, state that the federal investigation was looking into transportation of money, guns, drugs and prostitutes. The plaintiffs argue and have proffered evidence that such allegations — even if by innuendo or inference — are false.”
The ruling is now the second time the defendant The Scranton Times, which owns the Citizens’ Voice newspaper, has failed to convince a Luzerne County judge to toss out the case at the summary judgment stage.
It also marks a small step forward for plaintiff Thomas Joseph, who saw a $3.5 million verdict issued in his favor by former Judge Mark A. Ciavarella Jr. vacated by the state Supreme Court in November 2009.
The newspaper publisher’s attorney, J. Timothy Hinton of Haggerty McDonnell O’Brien & Hinton in Scranton, said his client was disappointed by the decision. He had not yet read the opinion, however.
Joseph’s attorney, George W. Croner of Kohn Swift & Graf in Philadelphia, could not be reached for comment.
The high court ruled that Ciavarella and a fellow former judge, Michael T. Conahan, positioned themselves to control case assignments in Luzerne County and offered “misleading, or even plainly false” reassurances when attorneys for The Scranton Times voiced concerns that Joseph, a Mountain Top, Pa., businessman, was judge-shopping to have Ciavarella assigned to his defamation suit.
Federal racketeering charges were levied against the two judges after the Joseph verdict and before the high court’s ruling, alleging they took more than $2.8 million from Robert J. Powell, a former co-owner of a private juvenile detention facility, PA Child Care; and Robert K. Mericle, the builder of the facility.
Conahan has pleaded guilty to federal criminal charges and Ciavarella is awaiting trial.
“It bears repeating: a jurist is either fair or unfair; there are no acceptable gradations,” the court wrote.
It later continued: “This relief is awarded in the interest of justice, to remedy judicial impropriety, and is premised upon this Court’s supervisory power over inferior tribunals.”
Joseph sued the Citizens’ Voice newspaper’s parent company, The Scranton Times, after the paper published a series of stories in 2001, according to the opinion. The suit stemmed from articles that said federal officials were investigating Joseph to see if he used his direct mail and advertising business to launder money for reputed mob boss William “Billy” D’Elia and if his taxi and limousine service was used to traffic guns, drugs and prostitutes between the Wilkes-Barre/Scranton and Lehigh Valley international airports and Atlantic City, N.J., New York City and Philadelphia, according to the opinion.
Joseph was never charged with any wrongdoing and sought to distance himself from the reputed mob boss, who happened to be a close friend of Conahan’s. In his lawsuit against the paper’s parent company, he argued that articles written about him damaged his reputation and business.
In petitioning to reopen the case, the newspaper’s lawyers cited the judges’ conditional guilty pleas in federal court to honest services fraud charges, which have since been withdrawn, as well as newspaper articles in The Legal Intelligencer detailing suspicions of case-fixing in Luzerne County and ties to criminal figures.
When the high court ruled in the paper’s favor, it not only vacated Ciavarella’s $3.5 million verdict and judgment, but also “all substantive orders.”
Van Jura, then, allowed the parties to re-file summary judgment motions. The paper did, arguing that the case should be dismissed.
The judge, however, mostly sided with Joseph, who argued the newspaper company failed to meet its burden in arguing that the articles were protected by the Fair Report Privilege, that Joseph was a limited-purpose public figure and that the newspaper did not act with actual malice.
Further, there were questions as to whether the newspaper articles were false and whether the paper had portrayed Joseph in false light, Van Jura wrote.
“There is disagreement over multiple material facts as to whether any or all of the plaintiffs are private figures or limited-purpose public figures,” Van Jura said. “There is disagreement about what, ultimately, is the meaning of ‘false’ — i.e. If the ‘gist’ of the articles is true but some parts of the articles or several articles collectively may give a false impression or misimpression, are the articles ‘false’? If there was undisputedly an investigation in which some of the targets, but none of the plaintiffs, were charged federally or otherwise, can the articles about the investigation, including express or implied factual assertions about the plaintiffs, ever be shown to be false?”
(Copies of the 34-page opinion in Joseph v. Scranton Times , PICS No. 10-3672, are available from Pennsylvania Law Weekly . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m. Tuesday.)  •