Buried secrets no more: Court unseals pretrial records in abuse case against Altoona-Johnstown diocese

By Dave Sutor
Tribune-Democrat
December 11, 2016

https://goo.gl/BQ6nIV

Holy Name Catholic Church in Ebensburg, where Msgr. Francis McCaa is accused of sexually abusing children, is shown in a photo from Sept. 6, 2016.

Thirty years ago today – on Dec. 11, 1986 – an order was issued to seal the pretrial records in a case filed by petitioners against the Roman Catholic Diocese of Altoona-Johnstown, former Bishop James Hogan, Holy Name Catholic Church and Msgr. Francis McCaa.

The decision prohibited parties and attorneys from publicly disseminating any information obtained from pleadings or documents.

The seal was to remain in place “until the time of trial,” according to the decision issued by then Cambria County Judge Gerard Long – who attended Holy Name parish, where McCaa served, and who years later decided to not recuse himself in the case, in which a newspaper attempted to have the records unsealed. 

McCaa had been accused of sexually abusing an unknown number of children, but never went to trial. A financial settlement was reached in 1987.

And the records remained locked away for decades, until current Cambria County President Judge Norman Krumenacker III released the information at the request of The Tribune-Democrat in the aftermath of a grand jury report that accused the diocese of carrying out a decades-long cover-up to protect religious leaders accused of child sexual abuse.

“There is some recent case law – in the past five or six years from our Supreme Court – that says in legislation, particularly civil legislation, there should be more openness,” Krumenacker said when discussing his decision.

“You’ve got to balance the right to privacy versus the First Amendment,” Krumenacker said. 

“The First Amendment wasn’t the first amendment just for the heck of it.”

The judge said unsealing documents after such a long period of time is unusual.

“You’re the first I’ve had in 24 years, to put that in perspective,” he said. “… It’s extremely rare.” 

‘Lewd and offensive’

The settlement states that McCaa had “improper physical contact with the minor plaintiffs in a lewd and offensive manner” when they were altar boys and he was “acting in the furtherance and scope of his employment with the Altoona-Johnstown Diocese, as Pastor of the Holy Name parish.”

The victims were described as having “suffered injuries, including embarrassment and humiliation, emotional distress, serious and possibly permanent psychological harm, and other damages and injuries.”

Even with including disturbing details of abuse, the overall document is unremarkable in terms of a legal settlement, said Michael Sahlaney, an attorney who handled the legal action for The Tribune-Democrat.

“Even if we had looked at it at the time, we would have learned next to nothing, which really isn’t surprising to me,” Sahlaney said.

There were four petitioners. 

But it is unknown how many children they represented because the identities were redacted by Krumenacker, as were the amounts of money awarded. 

‘Right of access’

The defendants requested sealing the pretrial documents. The plaintiffs opposed the motion.

In his decision, Long wrote that “a protective order limited solely to pre-trial civil discovery does not affront common law, Article I, Section 11 of the Pennsylvania Constitution, or the First Amendment as incorporated by the due process clause of the Fourteenth Amendment to the United States Constitution.”

He added: “The public has not historically been privy to the taking of depositions” and “interrogations are normally answered by client and counsel together in the attorney’s office: a place where surely the general public can claim no common law or constitutional right of access.”

In 1988 and 1989, attorney Richard Serbin was involved in attempts to unseal the documents.

“Sealing a court record is very unusual,” Serbin said. “Typically, when any document is filed in the courthouse, it’s open to the public because courts are open. Therefore, it’s a unique case when records are sealed, especially all records.”

Long did not respond to requests for an interview on the McCaa case and the ruling to unseal the documents.

A phone call was placed to his residence on Nov. 30. After a Tribune-Democrat reporter identified himself, the person who answered hung up. A subsequent phone call was made immediately, resulting in another hangup without any conversation taking place. 

‘Fundamental interests’

The now-defunct Pittsburgh Press attempted to get the documents unsealed with the goal of providing a complete and open record of the lawsuit.

But, during the legal action brought by the Press, both the plaintiffs and defendants from the original case wanted to keep the records sealed because of how the release might negatively affect the victims, according to the opinion and order issued by Long and concurred with by Judges Eugene Creany and Clifton McWilliams.

Counsel for the original defendants also demanded a rescission of the settlement money if the Press’ request was granted. Long wrote that the “task would prove cumbersome, if not unwieldy, and would fly in the face of notions of judicial economy” and inevitably cause a “complete revokation (sic) of the agreement between the parties.”

The judges determined the rights of the press and public were “insufficient to overcome the considerations of the litigants to the subject action and to third parties involved.” The order described alternatives, such as redaction, as “obviously not sufficient to protect the described fundamental interests.”

Serbin, an attorney from Blair County who has represented numerous victims of childhood sexual abuse, supported the Press’ argument as part of his effort to get information for a case against the Rev. Francis Luddy, another priest accused of abusing children.

“My argument was that, in the discovery process, I was trying to get access to records of the history of sexual abuse within the diocese by identifying child predators that led me to Msgr. McCaa because his name came up in the Luddy case,” Serbin said.

Serbin wanted to find out how prevalent child abuse was within the diocese.

“My avenue of obtaining those records was blocked by the McCaa case in Cambria County,” he said. 

‘This Judge’s integrity’

The Pittsburgh Press argued Long should have recused himself from the decision whether to unseal the documents.

According to testimony from Dec. 8, 1988, Kevin Abbott, who represented the paper, contended “the impartiality of the Court might be reasonably questioned” because Long attended Holy Name parish and, as district attorney, had “some” involvement in cases related to the litigation.

Long did not step aside because, according to his order dated Jan. 9, 1989, “The original parties were initially and still are completely confident that the motions and related matters can be fairly and impartially decided, and they have not questioned this Judge’s integrity at any prior stage or proceeding.”

Formal recusals are rare.

“If it was easy to recuse a judge, then there’d be chaos in the system,” Krumenacker said.

Reasons for a judge to step aside can be subjective.

“The basic recusal standard is whether there is a conflict of interest with the judge or if there would be an appearance of impropriety with the judge hearing the case,” said Wes Oliver, director of the criminal justice program at Duquesne University School of Law.

Such an example occurred during the trial against former Penn State assistant football coach Jerry Sandusky, who, in 2012, was tried on 48 counts related to sexual abuse of boys.

All Centre County Common Pleas Court judges recused themselves in order “to avoid any appearances of conflict of interest due to real or perceived connections,” to Sandusky, his Second Mile charity, or Penn State, according to a press release at the time of the announcement in November 2011.

“What went into the Sandusky case was a realization that there would be a lot of scrutinizing of the case and there were people who believed there might be favoritism,” said Centre County’s president judge, Thomas Kistler.