Washington County judge orders Marcellus Shale development settlement records unsealed

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A Washington County judge this morning ordered unsealed a court-approved settlement between Marcellus Shale development companies and a family that claimed the drilling operations damaged their health.

In a 32-page opinion, President Judge Debbie O'Dell-Seneca found that the presumption of openness in the court system must trump the interest of the companies to keep the record sealed.

Stephanie and Chris Hallowich initiated a case against Range Resources, MarkWest Energy Partners and Williams Gas/Laurel Mountain Midstream Partners on May 27, 2010. No official complaint was ever filed and instead, the case was settled by the parties in July 2011.

The defendants asked that the settlement conference and documents be sealed, a request former Washington County Common Pleas Judge Paul Pozonsky granted Aug. 23, 2011.

The Pittsburgh Post-Gazette and the Washington Observer-Reporter challenged that decision.

Frederick N. Frank, who represented the Post-Gazette, was pleased with the opinion.

"We feel it's extremely well-reasoned," he said. "Of particular importance, she reasserted the burden is on the party seeking to seal the record and not the media."

Further, he continued, "The analysis of the defendant's privacy rights was, again, particularly well-reasoned."

According to a summary of the settlement contained in the unsealed court records, Range Resources agreed to pay the Hallowich family $750,000.

The settlement also established an arbitration process to assess any future claims of personal injury to the Hallowich's minor children, Nathan and Alyson, that could arise from their exposure to gas-drilling activities.

The defendants have 30 days to file an appeal.

In a statement, Range Resources said the company "does not have concerns with the judge's decision, which we greatly respect, to make the court file public. This information combined with the vast public data accessible through the DEP's extensive investigations should provide the public with even greater clarity that shale gas is being developed safely and responsibly."

The state Superior Court remanded the matter back to the trial court.

Judge O'Dell-Seneca held argument on Jan. 18.

In her opinion, she found that the newspapers did not seek to open the record in pursuit of self-interest.

"They intervene to vindicate the public's right of access to its courts and to information, upon which the entire foundation of a free press is predicated," the judge wrote.

She wrote that the defendants acknowledged the presumption of openness in the courts and failed to present any evidence at the January hearing showing that any harm would befall them if the settlement agreement became public.

Further, Judge O'Dell-Seneca found that businesses do not have the same right to privacy as individuals.

"Whether a right of privacy for businesses exists within the penumbral rights of Pennsylvania's constitution is a matter of first impression," the judge wrote. "It does not."

The defendants claimed they had the right to privacy to protect the record from being unsealed.

But Judge O'Dell-Seneca wrote that Article I of the state Constitution, which reads, "All men are born equally free and independent," cannot apply to them.

"There are no men or women defendants in the instant case; they are various business entities. ... These are all 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."

The opinion calls it a clearly "emerging question in national jurisprudence" and joined with two courts that have already discredited it.

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Paula Reed Ward: pward@post-gazette.com or 412-263-2620.


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