*1 term. unexpired of his remainder of Bri- the calculation reverses This date, case is and this maximum

an Butler’s it can so the Board

remanded recal- days credit forty-two him

afford reflect date to maximum his

culate relinquished. Jurisdiction

credit. LOKUTA, Judge of the Ann H.

In re Pleas, Eleventh of Common County. District, Luzerne

Judicial 3 JD 06.

No. Discipline of Judicial Pennsylvania. 4, 2010.

Jan. *2 KURTZ, P.J., MUSMANNO,

Before SPRAGUE, LAMB, P.J.E, O’TOOLE, BUCCI, STREIB, and JJ. *3 AND

OPINION ORDER OPINION BY SPRAGUE.

I. INTRODUCTION 30, 2008, lengthy On October after a trial, Opinion finding filed an subject Ann H. Lokuta1 to 18(d)(1) discipline under Section of the Pennsylvania That finding Constitution. findings was based on Petitioner’s by conduct described at the trial 30 wit- nesses constituted thirteen violations of which brought Constitution conduct judicial office into disrepute preju- or the proper justice, diced administration of both, or and also constituted thirteen viola- provisions tions of various of the Code of Judicial Conduct.2 We held that vio- by lations had been established “clear and convincing evidence.” findings These were excep- the Court unanimous with the Judges tion that Streib and O’Toole did join in findings the Court’s that Peti- 3(C)(1)(a) 2(A). tioner violated Canons and On December this Court en- II, Puskas, Deputy Francis J. Chief tered an Order of Sanction removing Peti- Counsel, Board, Judicial Conduct for the tioner from her prohibit- office and Judicial Conduct Board. her from ing holding judicial office in Santora, Fort, Order, Forty Ronald Vincent the future.3 From January Michak, 6, 2009, George Harrisburg, A. for Re- Petitioner a timely appeal spondent with the Supreme Court. Opinion performance 1. In referred our we Lokuta tate the of the administrative Respondent.” responsibility judges as "the Since then she has of other and court offi- cials); 3(C)(Z)(a) (fail- filed a Petition with the Court and is two violations of Canon disqualify); referred to as "the Petitioner” ure to Su- two violations of Can- (failure preme Court in its Remand Order. We will 2Aon to conduct herself in a manner promotes public integ- refer to her as "the Petitioner.” confidence rity impartiality judiciary). of the 3(A)(3) (failure

2. Four violations of Canon courteous); patient, dignified 3.Judge one vio- O'Toole dissented from the Sanction 3A(5) (failure dispose imposed lation of Canon Order and would a sanction of court); promptly year pay suspension of the business of the four for one without followed 3(B)(Z) (failure years. probation violations of Canon facili- for three

945 26, 2009, January On traordinary United States Relief with the Supreme Attorney for the Middle District of Penn- Court. Application, Petitioner sylvania filed an against Information Mi- made reference to the above-mentioned In- Ciavarella, chael Conahan and Mark for- formations and the guilty pleas of Cona- judges mer han, Ciavarella and Sharkey and the Stipu- Pleas, charging Common them with vio- lation of Compromise filed Moran and §§ lations of 18 U.S.C. requested various relief including stay styled which he Services Wire the Order of this Court removing —“Honest her from (Count 1), Fraud” and with violations 18 judicial office.6 § styled U.S.C. “Conspiracy to De- On March *4 (for fraud the United filing States” “mate- Pennsylvania consolidated Petitioner’s returns”) (Count rially false tax [income] Application for Extraordinary Relief with 2).4 her appeal and remanded the case to this 3, 2009, February On the United States Court an Order which stated: Attorney filed an Information against Wil- The consolidated matter is REMAND- liam T. Sharkey, former Court Administra- ED to the Court of Judicial Discipline tor of County, Luzerne charging him with for the purpose limited of that court embezzling belonging funds to Luzerne considering Petitioner’s claims in the na- County. Sharkey pled guilty to the ture of evidence, after-discovered arising 17, charges on February 2009.5 from the recent revelations of corruption 23, 2009, February Moran, On Jill for- in Luzerne County. The Court of Judi- mer Prothonotary of County, Luzerne en- cial Discipline is to determine whether tered Stipulation into a Compromise the new evidence requires a further with the United States of America where- hearing whether it affects the and/or under agreed she cooperate with the existing determination of the Court of by United providing States all information Judicial Discipline to remove Petitioner of criminal activity of which she has knowl- judicial from office. edge and to resign as Prothonotary of Furthermore, the December 2008 or- Luzerne County. der of the Court of Judicial Discipline is 3, 2009, On March Petitioner an STAYED pending remand and a final 7 Application Supersedeas, Stay, Ex- determination of this matter.... 4.Conahan Agree- Sharkey's entered Plea conduct described in the Infor- but, charges January ments to the on 2009 mation is unrelated to the conduct which July on Kosik of the United provided charges the against basis for the States District Court for the Middle District of Conahan and Ciavarella. Pennsylvania approval withdrew of the Plea Agreements and Conahan and Ciavarella en- requested 6. Petitioner also Supreme that the Later, pleas tered guilty. of not Septem- Court Secretary direct the of the Common- Jury ber the Grand returned an In- wealth to placing refrain from Petitioner's conduct, alleging dictment the same but judicial May seat on the 2009 ballot. charging Conahan and Ciavarella with a vari- ety of arising additional crimes from that con- Supreme 7. The Court's Order continued with duct. Racketeering, Corrupt These include instructions to Secretary the of the Common- Receipt for Official Action Bribe/Reward wealth as follows: Concerning Programs Receiving Federal Funds, Money Laundering, Secretary the [A]nd Extortion Un- Commonwealth Right, consisting der Color of Official is directed placing of a to refrain from Petition- total of 48 Counts. Conahan and Ciavarella er's seat on the Court of Common pleaded guilty charges. May Pleas of Luzerne on the meant Court What then, instruc- Order, we take this

From filings that those this Opinion of Court on remand. work for our record public on the have been meaning pleas County, II. DISCUSSION Ciavarella, Judge Cona- guilty in This Court Proceedings A. including even han, Sharkey, and Mr. Re- Supreme Court’s to the Pursuant Moran, it is but involving agreement as fol- Order, proceeded this Court mand argu- that all position lows: matters. from those are to be ments the Judi- 27,2009 ordered corruption. we March meant On is what That (Board) and Petitioner Board cial Conduct we argument that position It is our treating questions: file briefs testimony, hear, if there is to be will matters referred 1. whether the connection on the issue of will be Application in her Petitioner trial of corruption and the area of ' require ... anything if there is Lokuta to see modify the sanc- or to revoke areas that would in those that occurred *5 from removing Petitioner order dispo- reconsider its cause this Court office, and judicial her necessity of or the of this case sition (N.T. 45-46, hear- evidentiary a further testimony. whether taking further deter- 2009). make such required to ing 13, is May mination. on proceedings At conclusion the argument April were filed Briefs 2009, fol- 13, entered the May this Court 13, 2009. May was held on questions the on lowing Order: made argument, Court During that no of this that ruling the Court It is following ruling: the allowed, does not be which discovery will of this Court—the Opinion the It may Judge Lokuta however that mean Opinion of unanimous investigation in whatever engage not the Order the Remand and obtain whatever to do they want they use Pennsylvania where of they material any other interviews reading arising from language the the— want to obtain. us, “for this Court entirety init its —for a Judge Lokuta grant will The Court considering Peti- of purpose limited in whatever days engage of 90 period of after in the nature claims tioner’s un- appropriate discovery they believe re- from the arising evidence discovered Court, ruling of this derstanding the in Luzerne of cent revelations with. complied it will be expected it is we are not that means County,” that 2009). (N.T. 95-96, 13, May newspaper ac- look at obviously told to 7, 2009, Thereafter, Petition- August on guess as are not told counts. We These were four documents. er filed something meant in the world is what of: affidavits something that may public, Benzi Patricia may public. become matter, and is not to be construed solely plinary stay is entered primary ballot. This taking any ensuring position Petitioner’s on purpose this Court of Lu- Pleas after- appeal the Court of Common or her seat on of Petitioner’s merits placed on the ballot zerne claim. evidence discovered judicial disci- of this final resolution until mination of this Court to remove S. Novak Joseph judicial from office.10 Petitioner Olenginski and Medico Carolee M. Brulo Sandra held Argument question on the 10, filed a 2009 Petitioner September On 17, November 2009 and the Court now on which was a Statement” “Supplemental 1. of its unanimously paragraph affirms A. Krumenack- from Norman letter 2009 that the new Order October er, III, Pleas of Cam- Court of Common Ann evidence claim of H. Petition County. bria er, require hearing does not a further on Findings the merits of this Court’s of Fact Petitioner filed a October On of Law contained in its and Conclusions reports which Submission” “Supplemental 30, 2008; of October and further Opinion appeared articles which newspaper on two not af holds that said new evidence does papers September the Wilkes-Barre existing fect determination of this October and state- 2009 and removing Petitioner from Kennedy, made John a Luzerne ments her prohibiting holding office and from a radio County lawyer, on Wilkes-Barre judicial office in the future. 2,2009. newspaper The station on October articles were attached as exhibits. its B. Remand Scope to this Submission the Board

Response transcript Kennedy’s radio inter- 1. “New Evidence” and “After-Discov- view. ered Evidence.” After consideration of conduct ques- The Petitioner has raised some *6 Sharkey and set and Ciavarella just tions about what it is that the Su- against them8 out in the Informations filed preme Court has instructed this Court by the of the six items submitted in making consider determinations we above, en- Petitioner set out this Court were instructed to make Remand 27,2009 an Order on October which tered Order. provided: evidence claim of Ann H. 1. the new very clear to The answer this seems Lokuta, Petitioner, require does not Remand Order Supreme us. The Court’s hearing on the merits of a further by this states that determinations Findings of Fact and this Court’s hearing that a further should be contained in its Conclusions of Law changed or our sanction are to held order 30, Opinion of October 2008.9 only requires be made if “the new evidence Court, however, likewise believe that the Su- permit 2. will Peti- We [it].” quite clear exact- preme and the Judicial Court has made it tioner Conduct this “new evidence” which it present argument ly Board to at a what the new evi- instructs us to consider. The Court tells hearing as to whether presented to us that it is “in the nature of dence that has been after-discov- evidence, the recent reve- existing arising affects the deter- ered from this Court 10.Judges Stipulation Compromise and Streib would have al de- O’Toole 8. Moran's evidentiary hearing question conduct. It refers to "criminal scribes no an on the lowed activity” provides that if she has knowl- whether the new evidence affects the exist edge any, will share it with the United she ing from determination to remove Petitioner States. judicial office. finding was unanimous. 9. This

948 The County.” defining it. Post-Conviction Re- lotions of (PCRA) provides: lief Act believe that We choosing of the modifier “after-discovered” § Eligibility 9543. for Relief thought purposefully, was made with (a) eligible To be GENERAL RULE. first, importance because of there existing for relief [vacation Order and cases,11 every- be an and because end trial], grant of new under this subsection body knows what “after-discovered evi- petitioner plead prove must is, having been defined over and dence” preponderance of the evidence all of the by the courts of the over Commonwealth. following: it, The Court has defined Dennis, 331, v. 552 Pa. Commonwealth (2) That the conviction or re- sentence (1998),

355, 404, 415 715 A.2d as follows: following: sulted from one or more of the * * * To warrant relief evi- after-discovered four-prong dence must meet a test: (vi) unavailability The at the time of exculpatory trial of evidence that has (1) the evidence could have been subsequently become available and obtained before the conclusion changed would have the outcome of diligence; trial reasonable the trial if it had been introduced. (2) merely the evidence is not corrobo- § 42 Pa.C.S. cumulative; rative or Superior The pertinently noted in (3) solely the evidence will not be used Moss, v. 455 Pa.Super. Commonwealth purposes impeachment; 259, (1997), 689 A.2d 262 (4) the evidence is of such a nature and § previously required 9543 of the PCRA character that a different outcome is “exculpatory that the ... evidence would likely. outcome.” The statute affected See, Ciao, also, v. Pa.Super. Weir 16,1992, was amended effective January (1987) aff'd, A.2d 521 Pa. require that the in question evidence be of *7 ” 491, (1989); Ewiak, 556 A.2d 819 Ebner v. quality which would “changed have 372, Pa.Super. (1984); 484 A.2d 180 outcome of the trial. Club, Gamma Swim Inc. v. Common employ Supreme We will wealth, Department Transportation, 95 prong” “four test in our evaluation of the 167, (1986). Pa.Cmwlth. 505 A.2d 342 (i.e., “new evidence” The Informations Conahan, not only against After-discovered evidence is de- Sharkey Ciavarella and decisions, fined in there legisla- as well as the six by items submitted Peti- tribunals, long jurisprudential staple by 11. This has been a they are made sions our are in this Commonwealth and was Litigants given announced left undisturbed. are their emphasis by with some noticeable our present Su- opportunity to their cause and once SEPTA, preme Reilly by Reilly Court in v. opportunity passed, has we are loathe 204, (1985). Pa. 489 A.2d 1291 There the reopen controversy for another air- Supreme Court said: ing, greatest save for the of need. This Charges prejudice security or unfairness be so for the made must of the bench and expose justice. after trial the trial bench to ridicule the successful administration of litigants Accordingly, developed to the uncertain collateral at- rules have for the adjudications upon they overturning judgments tack of which of verdicts and for placed strengths after-acquired their reliance. One of the evidence. system justice Reilly of our is that once deci- at tioner) in our determination juvenile of whether it detention center in Luzerne Coun- constitutes “after-discovered evidence.” ty by a building contractor who was a friend of then, Ciavarella’s. Conahan in

2. “Recent Corruption Revelations of 2002, January in acting capacity his in Luzerne County.” President of Luzerne County, It go would seem to without saying signed a “Placement Guarantee Agree- that the “recent revelations of corruption ment” under which the Court of Common in County” Luzerne which Pleas of County Luzerne agreed pay an Court directed us to consider are—could annual rental $1,314,000 installment of only be—those revelations which had been PA Childcare housing LLC of juve- revealed when the Court entered niles the new detention center which (March 25, 2009). its Order of Remand was to be owned PA Childcare. Under These revelations were the revelations the Agreement, the obligation of the Court contained against Informations Co- to pay the rental installments was “abso- nahan and Ciavarella filed the United lute and Conahan, unconditional” again Attorney States in the Middle District of acting in his capacity as President Judge 26, Pennsylvania on January 2009. The County, Luzerne took official action in Information against Sharkey was December to remove funding from February 2009.12 the Luzerne County budget for the exist-

These revelations of corruption ing in Lu- County Luzerne juvenile detention County zerne consist of allegations13 which center. relate that Conahan and Ciavarella devised Due to the success of the new detention and carried out “a material scheme and center in Luzerne County, another deten- artifice to defraud the citizens of the Com- center, known as Western PA Child- monwealth of Pennsylvania deprive and to care, was built in western Pennsylvania in those citizens of their right to the honest 2005 by the same builder who built the services of Michael T. Conahan and Mark new center in County. Luzerne Western A. Ciavarella as judges of the Court of PA Childcare was owned the same indi- Common Pleas for County.” Luzerne The viduals who owned PA Childcare. In 2006 Information also avers that Conahan and the same builder built an addition to the “abused their positions as Luzerne County center.

judges of the Court of Common Pleas for by accepting compensa- Beginning in February when the tion from organizations individuals and do- construction of the new detention center in *8 ing business with the Court.” The Infor- County Luzerne was completed, Ciavarel- goes mation on to describe the scheme as la, acting in capacity his juvenile as a court follows: judge began directing juvenile that offend- 2000, During Conahan and Ciavarella be ers sent to facility. that After con- arranged for the construction of a new struction of the new detention center in 12. The argued Petitioner has that this inter- 13. At the time of the Re- pretation Order, 25,2009, is incorrect as too narrow. It is mand allega- March just hard to tell Conahan, what Petitioner contends the tions were admitted Ciavarella (See, 42, interpretation correct e.g., who, date, N.T. Sharkey, and guilty as of that had 43, May where pleas counsel for Petition- on record. Conahan and Ciavarella la- appears agree er interpretation to See, that our 4, ter guilty pleas. withdrew their n. only possible). the one supra.

950 3, allega- These February 2009.14 key in on completed was Pennsylvania Western $70,000 Sharkey stole some are that tions of- juvenile that directed Ciavarella were funds County. These from Luzerne facility as well. sent fenders and assets proceeds gambling forfeited approximately of period During the Pennsyl- the Luzerne in seized juve- acting as the Ciavarella Penn- and the Board Liquor Control vania County. of judge court nile Sharkey’s It was Police. State sylvania ac- ordered frequently he capacity, the Trea- these funds over duty to turn even detained offenders juvenile cused he never County. This of Luzerne surer did Officers Probation when Juvenile his the funds to did; he converted instead also ex- Ciavarella detention. recommend use. own staff to recom- the court on pressure erted juvenile of- accused of detentions mend Re- New Evidence Examination C. of of pressure He also exerted fenders. in Lu- Corruption cent Revelations of accused waivers from to obtain court staff Ev- County as zerne After-Discovered of their parents or their offenders juvenile In This Case idence attorney. by an represented to be right increase designed to were All these actions Against In Informations Allegations 1. the afore- sent to juveniles number Conahan, Sharkey. and Ciavarella facilities. juvenile detention new mentioned de- the conduct surely true It is through years During against Cona- the Informations in scribed received secretly and Ciavarella Conahan han, Sharkey is condemna- and income, $2,600,000 in in addition more than that is ble, shocking, but even deplorable, they were to which compensation is it question is: question; not the entitled, for their offi- exchange lawfully more And evidence? after-discovered above. actions set out cial any connec- any broadly: is there nexus— that conduct at all—between elaborate took and Ciavarella the “four apply We Ann Lokuta? trial of payments conceal these measures to test.” prong included numerous measures them. These the bank ac- funds to transfers of wire two the first it is clear that think We by Cona- controlled corporations counts Conahan’s, met: evidence are prongs Ciavarella; filings materially false han and behav- Sharkey’s criminal Ciavarella’s the Ad- and Ciavarella by Conahan not have new—-it could certainly ior is Pennsylvania Office of ministrative of the trial conclusion obtained before been their sources failing to disclose Courts (first evi- prong); diligence by reasonable Forms Disclosure the Financial income on is not “corrobora- of this behavior dence Pennsylvania by the to be filed required at the trial testimony given tive” Court; materially false fed- (second prong). “cumulative” nor is it years filed for the tax returns eral income that the third However, clear equally it is through met: evidence prongs are not and fourth Sharkey’s Conahan’s, Ciavarella’s *9 “recent revelations The certainly be used could behavior criminal allega- include County” also Luzerne that is all credibility; but their question to against Shar- in the Information tions plea stands. earlier, guilty still pleaded his Sharkey has noted 14. As charges Information in the guilty to the likely or make money way in no dictate a simply It be used for. it could In it has no connection outcome in the case of re relevant as different otherwise only which is the way Lokuta’s behavior In no does it turn these Lokuta. (third nor is prong); this case subject of that is what into liars—and witnesses and Ciavarella’s evidence Conahan’s “a necessary in order to make different in criminal behavior described Sharkey’s likely.” outcome “a “likely” require to dif the Informations In Submissions Filed Allegations 2. We ask: outcome” in this case.

ferent Petitioner. allegations Sharkey that stole how do (or $70,000 even the fact county from the purport- Petitioner filed six documents did), that allegations he and how do that May to this Order of edly pursuant in an out engaged and Ciavarella Conahan 13, them one 2009.16 We will examine which included the rageous plot criminal one. (or even the of over million extortion $2 A. Statement Patricia Benzi. did) on the trial of they impact fact that Benzi, who In this statement Mrs. think the answer is Ann Lokuta? We at the Luzerne security guard is, impact The answer doesn’t obvious. Courthouse, things: touches on three at all It must be remembered and conclusions that this Court findings (2003- (a) three-year period, Over a after the trial were based on the made 2005) envelopes given to her she delivered who testified testimony of 30 witnesses boss) by Billy (alleged D’Elia to be a mob having events no relation whatsoev about in until to his chambers taking place to the events crimi er jail. Mr. D’Elia went off to Conahan, and Shar- nal world of how is relevant? How is We ask: It key described in the Informations. in case? this admissible the Lokuta We that Petitioner’s de must be remembered in the envel- don’t even know what was fense at her trial was that witnesses seriously argued that opes. It cannot were who testified for the Conduct Board in likely this “evidence” would be to result liars, perjurers, all intimidated and/or outcome, a different or would cause us these beholden to Conahan. We found change imposed. the sanction we credible; and, in witnesses to be contrast (b) gave D’Elia morning, One Mr. finding, that the Petition to that we found delivery for Lo- envelope her an testimony subject (covering er’s on the gave envelope Benzi record) kuta. Mrs. pages in the trial to be hundreds (Lokuta’s tipstaff Maureen Gushanas always “often tortured and attenuated.” was a for Lokuta at (In (Pa.Ct. secretary who witness Lokuta, re 964 A.2d trial) Later Jud.Disc.2008)). delivery judge. fact, matter of we As a morning Gushanas returned en gave testimony that Petitioner false found angrily Benzi and told her to tell velope to repeatedly during the trial.15 What Cona- the rest Billy “my Judge isn’t like concocting car han and Ciavarella did scheme, says Benzi she then re Judges.” their criminal or what these rying out (See Mr. D’Elia. Sharkey county envelope himself to turned the helping did See, 1069-70, they supra, have no relation whatsoever e.g., In re at much as 15. 1084-86, 1088, 1123. with the "recent revelations of County.” We will examine them filings actuality were made anyway. May inas- violation Order *10 statement.) (iii) 14 of Benzi The that Kulick told her Conahan

para. 13 and Judge go un- did not want Lokuta to envelope are likewise contents of FBI; relevance of this testimo- known—as is the

ny in case. the Lokuta (iv) why that Kulick told her to find out FBI; with Judge meeting Lokuta was that, July to note

It of interest is 2009, Mrs. Benzi testified about these de- at hearing conduct-

liveries Conahan (v) that Kulick her that told by Judge ed Platt on remand the case of him that if apologize told she would “ev- — Times, v. Scranton Pa. Joseph The erything go away.” would -, (2009), Hearing A.2d 633 Platt hearsay All rank this is and inadmissible hearing N.T. At that Mrs. Benzi 123-155. reason; in the Lokuta case for that more- was asked: absolutely over it is irrelevant and has no Q. you envelopes ever deliver Did connection with the issues in the Lokuta any judges Judge other than Cona- bearing case nor on the outcome thereof during you han the entire time (fourth prong). security guard? worked as a Joseph B. Statement S. Novak. She answered: lawyer is a Luzerne County Novak who A. No. says day one he overheard Conahan tell they get Ciavarella that had to rid of Lo- Hearing Platt N.T. 144-45. In Report, his (other) kuta day one Mr. Judge Platt found as a fact: Chester “Conahan was Brozowski, tipstaff a sometime only judge and court whom Benzi delivered habitué, house Judge told Novak that envelopes.” Report, Platt Co- Finding of Fact nahan told him that No. 16. Conahan wanted Lo- kuta off the bench. As “after-discovered evidence” this fails Insofar as prong. even the first It after-discovered evidence is was not unknown concerned, clearly it impossible discovery or should understood before the tri- (first (if that this isn’t even new prong). al—Lokuta and Co- Gushanas both knew it nahan’s dislike for Lokuta it was never un- happened), certainly Gushanas did. It Presumably, known. was known at the trial. It lawyers Lokuta and her was (or relevant?) at the trial. It didn’t think it established was never dis- important was Also, course, puted: Conahan testified he couldn’t and never offered it. it stand is she anyone up not known how her-—wished wouldn’t show for could contend that either; work—she didn’t like him her tip- this “evidence” has connection to the (N.T. staff him a “fucking pig.” called Lokuta case—much that it less would be 1379). (fourth testimony So this likely change obviously “cu- prong). result (besides new) and, being mulative” (c) Benzi “friendly” with an reason, is not “after discovered evi- admitted felon named Robert Kulick who (second prong). dence” Billy was a friend D’Elia’s and The rest of Novak’s statement has to do says: Conahan’s. She with some case of his that inwas front of (i) that Kulick told her that he invited Lokuta then in front of Conahan who a party Lokuta to in order to “make gave him a “wink.” We are at a loss to Conahan; peace” grasp meaning of this and to under- (ii) that why Kulick told her that Lokuta de- stand the submission—unless invitation; clined the imply it is included to that Conahan was *11 (iv) him giving and his client favorable treat- Conahan unfairly blamed her for case, ment. Even if this is the it has no limits that placed were on admissions to connection to the Lokuta case and certain- new Center; Juvenile Detention ly likely is not to cause a different outcome (v) Ciavarella bet on the races and (fourth prong). sometimes collected his winnings in the presence others; sometimes he wore a C. Statement Carolee Medico “racing hat.” Olenginski lady This preceded Jill Mor The most that can be said for this state- an as Prothonotary of County Luzerne ment is that it corroborates Lokuta’s de- says she that during her term neither she fense that everybody lied at her trial be- nor, to the best of her knowledge, the cause Conahan was “the boss” and he court clerks who worked for her had hired and fired everybody, so everybody problems with Judge Lokuta. lied. This is not after-discovered evidence be- First, this statement fails the after-dis- cause it was not unknown and undiseovera- covered evidence test IS “merely (first ble before the trial prong). Lokuta (second corroborative” prong). knew Olenginski and listed her as a trial Second, this evidence will not cause this witness and set forth in discovery the sub- to repudiate its finding that “we stance of her expected testimony —which assess these witnesses as truthful and the same as what is contained in her prof- their testimony as truthful and we do not fered statement here. believe these witnesses would per- commit Moreover, it doesn’t contradict Moran’s jury because the president judge wanted testimony because Olenginski has no idea them to even—if Lokuta, he did.” In re what happened after job she left her 964 A.2d (Pa.Ct.Jud.Disc.2008) the courthouse. In addition this testimony (fourth prong). would not be admissible because it does Moreover, idea, testified to length at not address any of the allegations in the trial, at that all the witnesses lied And, Complaint. once again, it would not because people “these serve at the leisure (fourth change the outcome prong). president judge. All of people are under the direct control of presi- D. Statement Sandra M. judge.” dent Lokuta, (Testimony of N.T. Brulo. This lady was the Chief Juvenile 2466-68, see, also, 2992-93) N.T. was thor- Probation Officer in from oughly by: debunked 1996 to 2005. Her statement consists largely of allegations of personal (a) griev The fact that witnesses Murtha- ances she had Conahan and Cowley, Cronin, Sallemi, Krohn, Sammons, complains that: Flaherty, Youngclaus, Stankus, Violi, Me- cadon and Kostelaba were not employed (i) Conahan ran the courthouse and was by the Luzerne County Common Pleas boss”; sometimes called “the Court and obviously were not under Cona- (ii) appointed friends, neigh- han’s “direct control” or serving at “his nephews bors and jobs; courthouse leisure”;

(iii) She “routinely questioned” (b) what she Lokuta’s own testimony on the sub viewed as inappropriate practices ject and this which was “often tortured always was not “well received” “power See, attenuated.” In re 964 A.2d structure”; 988, 1118-23 (Pa.Ct.Jud.Disc.2008). *12 nothing, for Reporters County Court zerne Norman Judge

E. Letter from con- Florida a Conahan’s III, guest Pleas and was Krumenacker, Common A. date, Angela his along with in 2005 In a letter do County. Judge, Cambria who 2, Sallemi, reporters of the court one September dated counsel Petitioner’s Olszewski, testified, Peter Paul Judge says he over Krumenacker Judge party at a cocktail Jr. a conversation heard are not of whom two judges, three among prove this is submitted suppose We however, Presi one, was “her

identified; following: all one or He doesn’t Mark Ciavarella.” Judge, dent (i) reciprocate under oath to lied Sallemi was, party cocktail when this remember (she i.e., she felt hospitality, for Conahan’s President didn’t become but Ciavarella at a him, lied under oath so she “owed” it 2007 so beginning Judge until later); years trial three Cia- that. He heard after have been must (ii) reporters all the court Sallemi Ann’s lack “tired of say he was varella appreciation their to show under oath lied him overheard and he also cooperation” lawyer a help getting her Conahan’s to “make going he was that “indicate” free;18 and them for represent miserable.”17 life (iii) he under oath when at the trial lied established Conahan was well It judge of her a with was tired as Judge include Olszewski Conahan didn’t President relationship.” collegial President prior and that he had “a whom noncooperation, sub- Augello had similar Toole and Judges as after-discover- qualify fails to All this Petitioner, so it’s with problems stantial relates obviously it because ed evidence (first and would prong) nothing new (third It is prong). credibility solely to (second certainly prong) and cumulative evi- after-discovered disqualified as also decision change wouldn’t likely that it is not because dence (fourth prong). compelled change feel would (fourth if it were to be admitted Loku- outcome by Ann F. Statement filed Furthermore, if it was ad- even prong). 2009 and on October was filed ta. This this Court mitted, provide it would County lawyer that a reports find- disaffirm its any inclination to with newspaper a Kennedy told John named report- the court credibility of ings on the that at radio show host and a talk reporter credibility Insofar as Conahan’s the Lu- ers. represented he request Conahan’s "Well, Kennedy this was: said about 18. What it is sin- intention If this was Ciavarella’s every year what pro but few bono cases I do a least antipathetic to his actions—at gularly was, again years ago and five that was trial she testi- At the reported Petitioner. and, was dispute going on it a Judge there was Ciavar- relationship with her fied about me, me asked actually Judge asked problems with "I did not ella as follows: Now, actually me to he wanted to do this. Augello. believe I don't President stuff, just feel county but I didn't currently bill the any problems there are pro dating Angela. I do doing it. I was like again, Honorable But then Ciavarella. doing it. It wasn't I didn’t mind work. defending action for bono this Judges, 1 have been petition. It was It was a lot of work. times that a have been past year. So there everybody They got their raise and resolved. time there. But each I haven't been like, know, So, you I it wasn't was satisfied. given administrative me a new has thing. I thing order, did enormous changed things, I have some we've because day, we reporters public court one met with He's spoken to him. complied with it. I've resolved, and, and that petition, dis- did had We haven't called me back. 3037). was it.” (Testimony of N.T. putes.” Ann Lokuta described reason conduct concerned, possible ask: what we case. record in this name trial failing to have for would Conahan he had “a with whom judge aas Olszewski then, short, the six submis- review of came subject This relationship”? collegial plain: makes Petitioner sions *13 com- Petitioner trial because up at the with matters of no all six deal -that asked her judges none of that plaining consequence, lawyer Her them. lunch with to have to the have no connection -that all six subject and he on the examined Conahan from the “arising evidence” “new This ex- for lunch. go out he didn’t said in corruption revelations of recent ensued: trivial examination ceedingly and, thus, all six County” doesn’t me, or not lunch To lunch Q. this filed in violation of were of some so- possibility exhaust May of Order Court’s relation- friendly collegial or cial or are not “after-discovered -that all six collegial rela- have a you Do ship. evidence,” judges tionship with have no connection to nor -that all six that court? Ann on the trial of Loku- bearing Well, sure. A. ta. judges include all of the

Q. Would portion Opin- this of this we conclude As Judge Lokuta? except submissions observe that these six ion. we that the discov- mainly to establish serve A. No. depredations of Cona- ery of the criminal it include? Q. Okay. Who would Peti- han, Sharkey provided be Ciavar- probably A. It would to reach for. But the tioner with a straw neighbor. next-door my He’s ella. is, there is no straw. Petition- fact plain else? Q. Anyone anyway these items to submit er’s decision No, really. A. any attempt to estab- futility shows depreda- between those a connection lish Conahan, N.T. 3711-12. Testimony of conse- trial of this case and. tions and the trivia, that being quintessential Aside from any attempt present to Court quently, lie, necessarily a as is the answer is not change the sanction any reason con- didn’t Maybe Conahan implication. to hold a further imposed order we Olszewski —or relationship with sider his fail. therewith —must hearing in connection presence Does Olszewski’s “collegial.” it was? prove condo Conahan’s Joseph and Malinowski Cases D. The Olszewski felt he “owed” Maybe Conahan Joseph, et al. v. The two cases: say? These other. Who’s something or — L.P., al., Pa.-, however, et said, Times is Scranton can be thing that One case) (2009) (the Joseph 987 A.2d 633 unlikely that Conahan highly Nanticoke Micro Technolo v. deliberately lie in Malinowski compelled feel would Inc., al., Penn et gies, with Olsz- relationship to conceal order (the MM 2009 Malinowski sylvania, No. 51 that can be thing more ewski. One case), remanded were what if he did? asked—is asked —must be Lu- Pleas findings Common not at all on Court’s It bears allegations corrup- County19 upon zerne were based on which and conclusions Platt, case, the Court of Com- President Supreme Court Joseph In the William H. appointed Honorable specially engaged Conahan and Ciavarel- Brief address of these cases will demon- la, for determination the lower court of they strate that should have no effect on whether new trials should be held. our decision upon remand for these two cases are elementally different from this Joseph

In the case the remand was case. “allegations] based on III irregular assignment

connection with the First, one thing which the Joseph and of former Mark A. Ciavarella to Malinowski cases have in common—a matter, preside over the bench trial in this commonality not shared -with the Lokuta and the conduct of the actual trial. This case—is that Mark Ciavarella was the low- plenary jurisdiction exercise of judge er court who decided both cases. *14 predicated on the fact that Petitioners Another thing those two cases have evidence, proffered previously common, case, missing which is in this available, which raises a colorable claim that in allegation both cases the is that the irregular assignment that the and trial of “fixed,” i.e., cases were “in this case were tainted the involvement pocket” case, Joseph in the Joseph of former Judges Michael T. Conahan and pocket” and “in the of the First National Order, 7, 2009, Ciavarella.” April Remand Bank, Community one of the defendants in Joseph v. The Scranton Times. the Malinowski case. In Order, accordance with the Remand 2, 2009, July Also, on 1 and Judge Platt Joseph conduct- case there was evi- hearing ed a and a Report August dence that Conahan had “steered” the trial 3,2009 recommending that a new trial be assignment to Ciavarella. granted. Following recommendation, Malinowski, Ciavarella sustained the the Supreme Court ordered a new trial on Preliminary Objections of the First Na- 4,2009. November tional Community Bank plaintiffs case, In the Malinowski the Supreme Complaint. That Order was entered Court remanded the case to President 2, 2005, Ciavarella on December at a time

Judge Chester Muroski of the Court of when Conahan was a Director of that Common Pleas of Luzerne County and Bank,20and it alleged that Conahan and directed him “to examine Petitioner’s alle- Ciavarella received favorable treatment gations corruption infected (See, Malinowski, from the Bank. supra, this matter” and to file a report and rec- Application for Exercise of Kings Bench ommendation with the Supreme Court. 15). Power, p. Order, August Remand Malinow- Obviously, Ciavarella was not the trial ski v. Inc., Nanticoke Micro Technologies, judge at the Lokuta trial and there has al, et supra. yet Muroski has not allegation been no this case was filed his Report. “fixed.” No one has suggested that Court, In a recent filing with this Peti- seven judges of this Court were “in the tioner cited these cases pointing out that pocket” of the Judicial Conduct Board —or “the Pennsylvania Supreme Court ... or- anyone else. dered new hearings [in these cases].” Presumably, suggesting she was that these There are other differences between the precedential orders are here. facts and the context of Joseph and Mali- Lehigh mon preside Pleas of over 20. Conahan was on the Board of Directors of the remand. the Bank from until noivsld, and, cases tried in the Court of Com- truth, swear an oath to tell the Lokuta, County, mon Pleas of Luzerne then tell lie after lie after lie—all in Discipline, tried Court of Judicial order to “get” Judge Lokuta.

but we believe the already dissimilarities First, we assess these witnesses as mentioned are so fundamental and so easy truthful truthful; and their testimony as see, that we are constrained not we do not believe these witnesses the point. belabor would commit perjury presi- because the then, say,

Suffice it to that we have dent judge wanted them to—even if he examined, cases, and we have consid- did. them, ered they find that do not cause (Pa.Ct. In re 964 A.2d us to decide differently this case than we Jud.Disc.2008). do. unanimous; This finding was hence it is Finally, we briefly write to address the clear that Judge Lokuta was not thwarted Dissenting Opinion distinguished of our in her to present efforts evidence of “con- colleagues. certed actions.” 1. The dissenting opinion asserts that *15 2. Lokuta was also not thwarted “Judge Lokuta’s present efforts to evi- her efforts inability “an explore to regarding dence concerted actions and the exculpatory evidence which is under seal culture corruption21 of which flourished in and unavailable to her.” On the contrary, the Courthouse have been the so-called “exculpatory evidence”26 has ... by thwarted evidentiary rulings.”22 been turned over to the Supreme Court. That simply is not true. Lokuta This Order was unanimous. See this days,

testified for filling hundreds of pages Court’s Order of May pro- 2009 which of this record about the “conspiracy” that as vided follows: among existed “power the elite”23 “get” JUDGE Please SPRAGUE: be seated. her because she was a “maverick judge.”24 It the is ruling unanimous of this Court fact, defense,25 only i.e., this was her that the proffer of this sealed material that all the witnesses lied because of the does not meet the test of after discover- “conspiracy.” rejected We this defense ed cumulative, evidence being being to and held: attack credibility and would not the give We no Respondent’s credence to opinion of this changed Court have the perception the 30 wit- —conclusion—that ultimate result. nesses called the Board are so terror- by, to, ized or Therefore, at least so beholden the this Court is ruling there will president judge that each one decided to not be an evidentiary hearing based on court, come to take the witness stand particular group of documents. 21. We can't tell what evidence of a culture of 24. N.T. 2467. corruption being is referred to here. We do given know that oppor- Lokuta was the Except Eye 25. for the Doctor. tunity present evidence "in the nature of arising after-discovered evidence from the re- 26. This evidence is under seal because of the cent corruption revelations of in Luzerne injunction constitutional that it "shall not be County,” Order, (Supreme Court Remand public Const., information." Pa. Art. 25, 2009) March and she failed to do so. 18(a)(8). Moreover, § its characterization as "exculpatory” certainly undeserved. Dissenting 22. Opinion, p.-. 23. N.T. 2992. was not affected holding and that made will be

However, exhibits on re- proffered the “evidence”28 any of for the under seal record of the part case, no there is being the That mand. to have Pennsylvania Supreme changing sanction. reason for arguable determination make its own access disagree with they agree or whether on the dissent’s Lastly, we remark this Court. ruling of de- Supreme Court’s interpretation we were to con- evidence scription with “this of the takes issue Dissent 8. The after- the nature remand as “in gov- the federal sider declaration their’s) evidence,” (emphasis wit- of the of certain discovered indictment ernment’s intention of of the and other evidence Judge Lokuta against nesses something include evidence most base for the insiders27 courthouse of after- “in the nature than evidence other public forms of deplorable think it is clear We to entertain evidence.” occasion discovered give ... does not limitation and words of disposi- that the words are that tainted of how evidence it clear that We think opposite. her.” This is against charges of the has laid however, which the declaration, in which our dissent- the test “after- evidence to be in order for See this Court’s down colleagues joined. ing evidence,” necessary equally repeat 2009. We will discovered of October Order nature of after- be “in the for evidence to it: evidence.” discovered with the Order In accordance Pennsylvania of Supreme Court III. CONCLUSION upon consideration

March *16 Petitioner, Lokuta, Ann H. claims of the of the Su- Following the instructions evi- of after-discovered in the nature set out in its Pennsylvania preme Court dence, the recent revela- arising from 25, 2009, March this Order of Remand County, in Luzerne corruption tions of “Petitioner’s claims considered Court has and after hearing argument and after of after-discovered evidence in the nature Peti- of the submissions consideration revelations of cor- from the recent arising counsel, it is briefs of and of the tioner and, the County,” in Luzerne ruption that: HEREBY ORDERED Opinion, have deter- out this reasons set H. claim of Ann new evidence 1. the mined that: Petitioner, require not does require does not 1. that “new evidence” the merits of hearing on further hearing, a further and of Fact and Conclu- Findings does not affect that “new evidence” Opinion in its of Law contained sions of this existing the determination 80, 2008. October ju- from remove Petitioner Court to Court, dissenting including the This dicial office. unanimously charges ruled that the

judges, Judges and Judge President KURTZ been estab- Judge Lokuta had against join. LAMB and evidence BUCCI convincing by clear and lished and of "the most base 28. "That” evidence government indicted 27. The federal corruption” refers public deplorable forms of filed an Information Ciavarella and and Conahan, Ciavarel- criminal conduct of in- Sharkey. "courthouse against No other repeatedly have said Sharkey which we la and indicted. siders” have been Judge the conduct of has no connection which fills this record. Lokuta her, charges propri- as well as Dissenting against files a Judge STREIB ety imposed. of the sanctions Judges in which MUSMANNO Statement join. and O’TOOLE certainly agree I that some of the While brought against Judge Lokuta charges participate did not Judge JUDGE alleged crimi- nothing have to do with case. disposition or of this consideration at simultaneously taking place nal conduct OF STATEMENT DISSENTING (such her misuse of a the courthouse STREIB. Judge perform personal law clerk to ser- majority dissent from the respectfully I her), no means condone vices for Lokuta’s Judge and find that opinion part, Judge that misbehavior on Lokuta’s the nature of after-discovered “claims in ignores the fact that there majority evidence, arising from the recent revela- many findings made this Court were County” corruption in Luzerne tions of unprecedented which the level of cor- upon require a justice in the interest of would in- bearing, would have which ruption hearing. new sanction cludes, to, D but is not limited Section majority opinion filed October pres- stench of that was The testimony regarding is recited where County has ent in the Courthouse her staff to have instructing Lokuta proceedings and infected these permeated personnel. limited contact with other court outset. Ann Lokuta did from the ranging corrupt in the wide participate not then, upon Based what we knew various Luzerne practices engaged what we know now after the federal crimi judges, attorneys, a court adminis- allegations nal indictments and of wide trator, even a row officer that perhaps courthouse, spread corruption within the alleged by prosecutors. federal been was “on a was believed Lokuta had to work with and She nevertheless battle-ready footing, war for the warfare parties to these nefarious activ- among daily with the court waged which she de ities, polluted function in culture judges, particularly partments and other environment. president judges County.” of Luzerne *17 (Pa.Ct. Lokuta, Lokuta been unable In re 964 A.2d Judge has to date Jud.Disc.2008). then that these circumstances. Her We observed to demonstrate her deliberately con- isolated herself and present regarding efforts to evidence “[s]he from the rest of the courthouse and corrup- certed actions and the culture of staff standing in the Luzerne orders that her staff was not tion which flourished had courthouse, socialize, in of the have been thwarted at to or out Courthouse (which ... employees every by evidentiary rulings [n]o- turn with other courthouse time), by category the an included in this were the appropriate seemed at tables has since entered into a inability explore exculpatory prothonotary to evidence [who her, federal Stipulation Compromise which under seal unavailable to by prosecutors], that court administrator and now this Court’s declaration subject of a federal indict government’s [presently the federal indictment of ment], Judges President Toole and against Judge certain of the witnesses Lo- for the latter of whom has been [the kuta and other courthouse insiders and is re public by prosecutors indicted federal deplorable most base and forms at the heart of most of corruption public puted and breach of trust does be County]....” within the In re occasion to entertain evidence of give not Lokuta, disposition supra. tainted the of the how Judge Lokuta for this I also believe that the Our criticism Court meaning takes on a whole new requirements “isolation” knows full well the for after- within placed when the context of the gratu- discovered evidence and did that now widespread corruption appears to itously phrase use the “in the nature of Indeed, place. taking have been is most (emphasis after-discovered evidence” add- Lokuta ironic that would criti- ed) is, remanding in this case to us. That by isolating cized this Court for herself I do not believe that the very people and her staff from the who asking simply this perform misusing have now been indicted for their analysis requirements an that are public position to commit office and crimes qualify needed for evidence to as after- at heart of strike our discovered, scope and that it had a broader And, system. it is most ironic that also in Pennsylvania mind. As Rule 102 of the people these same are called the Board us, pur- Rules of Evidence instructs against Judge to bear -witness but pose evidentiary rules is “to secure fair- yet precluded presenting she is from evi- ... ness in administration to the end that regarding dence their far more serious may proceed- truth be ascertained and misdeeds criminal activities. ings justly determined.” I do not believe however, importantly, More I find goals have been accomplished proffered perti- Lokuta’s evidence most ruling this Court’s and believe that the nent imposed by to the sanctions this imposed sanctions that have been as a charges brought result of the unduly Lokuta are un- harsh and against her the Board. That evidence warranted under the circumstances ordinary demonstrates that this was no case. judicial environment and no environment any judge exposed. which should be Judges MUSMANNO and O’TOOLE That, me, is a mitigating serious factor join Dissenting Statement. which does indeed militate in favor of an altered sanction this case. Accordingly,

I majority’s dissent from the determina-

tion that the evidence proffered by Judge

Lokuta requirements does not meet the not,

after-discovered evidence and would event, have affected the outcome of

this case.