Panic Street Lawyer: It goes with the order, reflex and gift

Sunday, 25 August 2013 06:00 AM Written by  Jay Hornack

20130825 colbertgaggift490Unlike PSL, some of America’s favorite television shows are in summer reruns.

One of those shows, “Jeopardy,” requires contestants to come up with questions that go with category answers. For example, in the category “3-Letter Words,” the correct question for my title answer (above) is “what is gag?” Google can confirm this.

Another TV show currently in summer reruns is “The Colbert Report.” As a general rule, it is not a good thing if Mr. Colbert & Company write up a bit about you, your profession or your company. In TCR’s last show before it went on late summer hiatus, Comedy Central ran this legal segment from nearby Washington County that included my “Jeopardy” word in the segment called “The Word:”

20130825 colbetvideofracking200Click thumbnail above to view video clip.As you can see, while Stephen was editorializing about the practice of making fracking damage lawsuits settlement agreements confidential, one and then a second Post-Gazette news article on the case was flashed behind him. Here is the actual agreement.

What made the Stephanie Hallowich and Chris Hallowich, H/W v. Range Resources Corporation, et al. settlement story especially Colbert-worthy was a Range attorney’s claim at a 2011 hearing that the confidential agreement applied to not just the husband and wife plaintiffs but also the non-party Hallowich minor children. But as the Post-Gazette noted both at Pittsblogh and on Twitter (@PittsburghPG), the August 15 “Colbert Report” missed the paper’s August 7 report by Don Hopey that a different Range attorney wrote an August 2, 2013 letter disavowing the 2011 statement. So the Hallowich minor children are not bound by a court-approved gag order -- maybe.

20130825 pozonsky150Paul Pozonsky“The Colbert Report” also either missed or decided to pass over another aspect of the 2011 settlement hearing that has received some attention in the Post-Gazette. The Washington County judge who presided over that hearing was the target of much ridicule from Stephen’s August 15 audience for this on-the-record comment on the legality of gagging minor children from talking about fracking: “That’s a law school question, I guess.” And while Stephen did mention that the judge at that hearing, Paul Pozonsky, has since resigned from the bench, “The Colbert Report” did not report on the circumstances surrounding the judge’s 2012 resignation (Pozonsky’s preliminary hearing on 15 counts that he stole cocaine from evidence envelopes in criminal cases before him has been rescheduled for September 18).

Speaking of fracking and judges in trouble, the Post-Gazette reported this week that the Pennsylvania Supreme Court may rehear oral argument on the lawsuit challenging the constitutionality of the amendments to the state’s Oil and Gas Act, which effectively prevent municipalities from changing their zoning ordinances to block fracking within their boundaries. Since oral argument before them in October 2012, the Supreme Court lost one of its seven justices (Joan Orie Melvin) when she resigned in May 2013 after being convicted on corruption charges. Some are concerned that the six remaining justices may split their vote on the Act 13 case 3-3. A new justice (Correale F. Stevens) was sworn in on July 30, which brings the number of justices back up to seven.

Meanwhile, private lawsuits challenging fracking continue to be settled via agreements containing confidentiality and “non-disparagement” sections that gag speech in exchange for money. If the party receiving the money speaks in violation of an agreement, the party that paid the money could sue to get their money back as breach of contract damages.

The Hallowich’s private 2011 settlement and hearing became public in 2013 only because newspapers convinced a new judge to unseal a court-filed agreement and transcript and then released the settlement details. What if the plaintiffs, after having signed a confidential agreement, decide later to disclose details themselves? Is there anything they can do to stop a damages lawsuit by the defendant for breach of contract?

If the damages sought are in the range of the monetary payment received by the Hallowiches ($750,000.00), perhaps federal bankruptcy law would provide some relief. After all, we are being told by legal observers of the City of Detroit’s recent filing that contractual promises should not be seen as sacrosanct in bankruptcy court. If that is the guiding principle with respect to Detroit’s pensioners, why should that not be the guiding principle with respect to natural gas drillers?

Mention of the Motor City gives me grounds to end this week’s column with this “Final Jeopardy” clue, in the category of “1970s Rock Stars:” it is Panic Street Lawyer’s obvious choice for favorite David Bowie song.


The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. and follow Jay on Twitter: @panicstlawyer

To report inappropriate comments, abuse and/or repeat offenders, please send an email to socialmedia@post-gazette.com and include a link to the article and a copy of the comment. Your report will be reviewed in a timely manner. Thank you.