A Washington County judge, holding there is no constitutional right to privacy for business entities, has unsealed the record in a case in which three drillers settled a suit brought by a couple for about $750,000 before a complaint was even filed.

In Hallowich v. Range Resources, Washington County Court of Common Pleas Judge Debbie O’Dell-Seneca reversed a previous order by former Washington County Judge Paul Pozonsky that sealed the record in the case from the public.

O’Dell-Seneca pointed to the Court of Appeals of California, Fifth Appellate District’s 1983 ruling in Roberts v. Gulf Oil, in which it held that the California Constitution’s protection of the privacy rights of "people" does not include business entities.

O’Dell-Seneca also cited the Supreme Court of Montana’s 2003 ruling in Great Falls Tribune v. Montana Public Service Commission, in which the court held that the drafters of the state’s constitution did not intend the phrase "individual privacy" to extend to businesses.

"While clearly an emerging question in national jurisprudence, claims of a business-entity right of privacy have been discredited by the two courts that have directly considered it," O’Dell-Seneca said. "This court now joins them in rejection of this novel, state-constitutional theory."

In Hallowich, according to O’Dell-Seneca, plaintiffs Stephanie and Chris Hallowich filed a praecipe to issue a writ of summons against defendants Range Resources Corp., Williams Gas/Laurel Mountain Midstream, MarkWest Energy Partners and the Pennsylvania Department of Environmental Protection.

On July 11, 2011, the Hallowiches filed a praecipe for discontinuance without ever having filed a complaint, according to O’Dell-Seneca.

Court documents show that Range Resources, Williams Gas and MarkWest Energy agreed to settle with the Hallowiches for $750,018.

O’Dell-Seneca said in a footnote that the DEP was not involved in the settlement.

According to O’Dell-Seneca, Pozonsky had granted a joint motion August 11, 2011, by the plaintiffs and defendants to close the settlement hearing to the public.

On August 23, 2011, the day of the settlement hearing, the record was sealed, according to O’Dell-Seneca.

Both the PG Publishing Co. and the Observer Publishing Co. — referred to jointly in the opinion as "the press" — filed motions to intervene and unseal the record, which the trial court denied as untimely in January 2012, according to O’Dell-Seneca.

On appeal, the state Superior Court, in a 2012 memorandum opinion, vacated the order and remanded the case back to the trial court for a ruling on the merits of the press’ petitions.

On remand, the press argued that the record should be unsealed because Pozonsky’s August 23, 2011, order violated both the state and U.S. constitutions and because the public has a common law right of access to court records, O’Dell-Seneca said.

The defendants, meanwhile, argued on remand that the press’ "’mere curiosity in this private matter’" did not give them a constitutional right to access the record, according to O’Dell-Seneca.
The defense also argued that unsealing the record would violate their right to privacy, O’Dell-Seneca said.

O’Dell-Seneca declined to address the press’ constitutional claims because the public’s common law right to access court records is enough to warrant a reversal of Pozonsky’s August 23, 2011, order.

The defendants attempted to shift the burden to the press to show why the record should be unsealed, citing the state Supreme Court’s 2010 ruling in In re Estate of du Pont, which held that "’those seeking to maintain the situation of closure do not have to prove the need over again.’"

But O’Dell-Seneca said the du Pont case was distinguishable because it involved a third party’s attempts to unseal the record in an attempt to determine whether he had a cause of action against an incapacitated person’s estate.

According to O’Dell-Seneca, the defendant bears the burden to show why a record should be sealed and the defendants in Hallowich provided no evidence to rebut the common law presumption of openness.

"Imposing the burden of proof upon the press, on the grounds that the record has already been sealed, would repeat Pozonsky’s error," O’Dell-Seneca said, citing the state Superior Court’s ruling in PA Child Care LLC v. Flood, in which it held that there is a presumption of openness.

Turning to the defense’s claim that Article I of the Pennsylvania Constitution provides a right to privacy to business entities, O’Dell-Seneca noted that Article I, Section 1 is titled "Inherent Rights of Mankind" and opens with the phrase, "All men are born."

According to O’Dell-Seneca, theMerriam-Webster Dictionary defines "mankind" as "’(1) the human race, the totality of human beings; (2) men especially as distinguished from women.’"

Meanwhile, Article I, Section 28 of the state constitution extends legal rights to women as well as men, according to O’Dell-Seneca.

But O’Dell-Seneca said there are no men or women defendants in Hallowich, only business entities — "legal fictions, existing not by natural birth but by operations of state statutes."

"Such business entities cannot have been ‘born equally free and independent,’ because they were not born at all," O’Dell-Seneca said. "Indeed, the framers of our constitution could not have intended for them to be ‘free and independent,’ because, as the creations of the law, they are always subservient to it."

Similarly, O’Dell-Seneca disagreed with the defendants’ attempt to seek protection under Article I, Section 8 of the state constitution, which protects "the people" from unlawful search and seizure.

"If the framers had intended this section to shield corporations, limited-liability corporations, or limited partnerships, this court presumes they could and would have used those words," O’Dell-Seneca said.

Frederick Frank of Frank, Gale, Bails, Murcko & Pocrass in Pittsburgh, who represented the press along with Colin Fitch of Marriner, Jones & Fitch in Washington, Pa., said the ruling "reaffirms the common law right of the media to access judicial documents and properly placed the burden upon the parties seeking closure."

Counsel for the Hallowiches, Peter Villari of Villari, Brandes & Giannone in Philadelphia, could not be reached for comment.

Counsel for Range Resources, Richard W. Hosking of K&L Gates in Pittsburgh; counsel for MarkWest, Erin Windle McDowell of Eckert Seamans Cherin & Mellott in Pittsburgh; and counsel for Williams Gas, Kathy K. Condo of Babst Calland in Pittsburgh, also could not be reached.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 32-page opinion in Hallowich v. Range Resources, PICS No. 13-0685, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •