Paul Pozonsky, the former Pennsylvania judge briefly hired by the Parnell administration as an Alaska workers' compensation hearing officer even though he was under investigation for stealing cocaine from Pennsylvania trial evidence envelopes, signed off on a fracking lawsuit settlement in 2011 that may have included the first lifetime gag order ever intended to be enforced on minor children. When the plaintiffs' attorney questioned whether that aspect of the settlement was even constitutional, a newly released transcript shows, Pozonsky replied simply, "That's a law school question, I guess."
By DON HOPEY, Pittsburgh Post-Gazette
A just-released Washington County Common Pleas Court transcript of a 2011 settlement hearing in a Marcellus Shale damage case shows the case records should have included a confidential settlement agreement and reveals details of an unusual lifetime "gag order" that covers two children involved in the case.
According to the 16-page transcript, then-Washington County Judge Paul Pozonsky approved sealing the court records with the settlement agreement "attached thereto" during a private hearing held to settle the claims of Chris and Stephanie Hallowich against Range Resources, Williams Gas/Laurel Mountain Midstream and Markwest Energy.
The Hallowiches, long-time critics of shale gas drilling, claimed that Marcellus Shale gas development - including four wells, gas compressor stations and a 3-acre wastewater impoundment - adjacent to their 10-acre farm in Mount Pleasant, Washington County, damaged the family's health and the value of their property.
The Hallowiches signed an affidavit as a condition of the settlement that stated their family's health was not damaged by the gas operations. Matt Pitzarella, a Range Resources spokesman, said today that the family was not forced to sign the affidavit.
"All of the reports done at the time indicated no exposure (from the gas development) and they never produced evidence of any health impacts," Mr. Pitzarella said.
"We did say that clearly the Hallowiches were not in an ideal situation in terms of their lifestyle. They had an unusual amount of activity around them. We didn't want them in that situation."
The Pittsburgh Post-Gazette and the Washington Observer-Reporter successfully petitioned the court to unseal all of the Hallowich case records, but when more than 900 pages of records were released in March, the confidential settlement agreement was missing from the file.
"This shows clearly the settlement agreement was part of the record," said Frederick Frank, an attorney representing the Post-Gazette.
The hearing transcript, which provides details of the $750,000 settlement paid to the family, shows the Hallowiches reluctantly agreed to the terms of the settlement to remove their children from what they considered an unhealthy environment.
They also raised questions about how a lifetime "gag order," as the judge called it, included in the settlement that required the entire family to never discuss Marcellus Shale or fracking would be enforced against their then 7-year-old daughter and 10-year-old son.
According to the transcript, the Hallowiches' attorney, Peter Villari, said that in 30 years of practicing law he never had seen a nondisclosure agreement that included minor children.
And, although he advised the Hallowiches to accept the settlement, he questioned whether the children's First Amendment rights could be restricted by such an agreement.
Judge Pozonsky, who has since resigned, responded that he didn't know, adding, "That's a law school question, I guess."
James Swetz, the attorney representing Range Resources at the settlement hearing, then is quoted as saying, "I guess our position is it does apply to the whole family. We would certainly enforce it."
Mr. Pitzarella said today that Mr. Swetz's comment about enforcing the nondisclosure agreement "is not our understanding, not something we agree with."
Mr. Swetz could not be reached for comment.
Although the settlement hearing, from which reporters from the Post-Gazette were barred, occurred in August 2011, almost two years ago, a transcript of the hearing was not produced until Mr. Frank requested it last month.
Washington County Common Pleas President Judge Debbie O'Dell Seneca ordered release of the transcript, which was scheduled to be filed this morning with the Washington County prothonotary.
The release of the transcript does not settle the case. Range and Markwest have appealed, to state Superior Court, the order unsealing the records.
But Mr. Frank said, "We believe the transcript fully supports our position that the actual settlement agreement between the plaintiffs and defendants was part of the court record, and moreover it was reviewed by the court, which held extensive discussions regarding its terms.
"The agreement should be returned to the record as clearly indicated, and as a judicial record should be made available to the public."