In Re: Special Prosecutor, Thirty-Fifth Statewide Investigating Grand Jury

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

IN RE: SPECIAL PROSECUTOR, : No. 1 MM 2015
THIRTY-FIFTH STATEWIDE :
INVESTIGATING GRAND JURY :
:
:
:

ORDER

PER CURIAM
AND NOW, this 26th day of August, 2015, upon the request of the supervising

judge for removal of the seal from all matters involving the 35th Statewide Investigating

Grand Jury and the investigation of Attorney General Kathleen Kane which have been

lodged in this Court, save for grand jury materials such as testimony, exhibits, and in

camera proceedings, and based on the supervising judge’s assurance that there are no

present grand jury secrecy concerns relative to such unsealing, it is hereby ORDERED

that the seal is lifted upon such terms.
 Filed in Supreme Court
I" (23 2014

Middle
UNSEALED PER
ORDER OF THE
COURT DATED
IN THE SUPREME COURT OF PENNSYLVANIA
AUGUST 26, 2015

IN RE: : `UPREME COURT No.

: GRANDIURY DOCKETS:
SUPREME COURT OF PA
SPECIAL'PROSECUTOR, No. 176 MD 2012
THIRTY-FIFTH STATEWIDE : MONTGOMERY CO.COURT
INVESTIGATING GRAND JURY : No. 2644 MD 2012

EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF

ANDNOW,this 6th day ofJanuary 2015,comes David Peifer, by counsel,
Christopher P. Caputo, Esq., and presents the following:

JURISIACTLON

1. The Supreme Court of Pennsylvania has jurisdiction pussuant to the

JOicjary Article of the'Copstitution of:the Commonwealth of Pennsylvania, Article

(jurisd.iction,of the Supreme (ourt); Article 5 Section 10 (supervisory

authority of the Supreme Court); and the first clause of Section 1 of the Scheduleto

the-JuicialY Arficle (PoWer and jurisdiction Of'the Stipreme Court); and further

Received in Supreme Court

JAN 6 2015

Middle
pursuant to the Judicial Code, 42 Pa.C.S.A. §721(3)(original jurisdiction of the

Supreme Court in quo warranto); and §726 (extraordinary jurisdiction of the

Supreme Court); as implemented by Pa.'R.A.P. 3307(pleadings in original actions)

and 3309(King's Bench matters).

APPLICANT

2. The Applicant is David Peifer S.Pecial Agent in Charge, Bureau of Special

Investigations, an employee of the Pennsylvania Office of Aftorney General

(OAG). Special Agent Peifer among other duties, supervises all Special

Investigations conducted by OAG; Special Agent Peifer has offices in Harrisburg,

Norritown,. and resides in Delaware County,:PA.

• .3. On January 6,'2015 undersigned coupsel accepted service of a subpoena on

behalf'of Special Agent Peifer: by an agent of Special 'Prosecutor Thomas E.

Carluccio to appear and testify on January 12, 2015 before the Thirty-Fifth

Statewide- Investi2atine Grand jury sitting in Montgomery County.

• 4.- The Applicant; by- virtue ofhaving,been.served with-a subpoenato-appear

and testify, has standing to cballenge the egality of the office of Special Prosecutor

appointedlo-the Thirty-Fifth Statewide Investigating Grand jury. Gwinn v. Kane, 19

Pa,CmwItfi.. 243, 339 A.2d -83$,$40-843 1975), disposition affirmed, 465 Pa. 269,
348 A.2 900(Pa. 1975).

FACTUAL BACKROUND

5. On June 6, 2014 an article appeared in the .Philadelphia Daily News

concerning a 2009 grand jury irvestigatioì.ofJ. Whyatt Mondesire,a forrner head of

theNAACP in Philadelphia„ and .Harriet Garrett, one ofMr. Mondesire's employees.

Exhibit A.

6. The 2009 statewide investigdting - grand jury had been convened and

impaneled in Montgomery County.

The.Philadelphia.Daily News article cited two documentary sources: First,

a 2009 memo wrMen by-then-Deputy Aqorney.General William Davis, Jr., addressed

to thenchiefDeputy Attorney Generaj,FrankFipa artd-thep-Senior..Deputy Attorney

General'E. Marc Costanzo; and Second a 2914 transcript of a taped interview, by

David peifer, Director of the OAG Bureau- of Special Investigations, of Michael

Miletto,the OAG special agent who had earlier investieated Mr. Mondesire and Ms.

Garrett.,Exhibit A.

8. Sometime .prior to the June 6, 2014 Philadelphia Daily News article, a

Special.Prosecutor(Thomas E. Carluccio, Esq., an attorney in private practice) was

appointed and authorized to utilize the hirty-Fifth Statewide Investigating Grand

J ry to,investigate the alleged "leak" of alleged "grand jury material" by employees
of the OAG,or other persons, to the. Philadelphia.Daily News.

9. The written communications, applications, petitions, orders, notice of

submission, and all other documents Oderlying the appointment of the Special

Prosecutor and submission of this invest, gation to the grand jury are under seal. It

has been publicly reported that the app6intment of the Special Prosecutor in this

matter was authorized by the Supreme Court and by, Order of Supervising Judge of

the Grand Jury William R. Carpenter. Exhibits .B, C, and D.

:BASIS FOR EXTRAORDINARY RELIEF.

10. The Investigating Grand Jury ct 42 Pa.C.S.A. §§4541 et seq., does not

provide for appointment of any special prosecutor.

11. The Commonwealth Attorneys Act, 71 P.S. §§732-101 et seq., does not

provide for the appointment of any special prosecutor.

12. The sole provisions in Pennsylvania law for appointment of a special

prosecutor apply only in the event that an elected county District Attorney has been

charged with crime or wilful and gross negligence in office. County Code, 16 P.S.

§§1405-1406. See similar provisions at 16 P.S. §7710 concerning counties of the

first class; and.16 P.S. §§4405-4406 conierning counties of the second class.

13. Pa.R.A.P. 3331 provides for review by the Supreme Court of"An order

relating to the supersession ofa district attorney by an Attorney General or by a.court,
or to the appointment, supervision, administration or operation of a special

prosecutor." This rule does not create any independent substantive authority for the

appointment of any special prosecutor, and must therefore be construed to apply

solely to cases arisine, under the above-cited provisions of the County Code.

14. The consideration of a special prosecutor in Dauphin County Grand Jury

Investigation Proceedings(N . 3), 322 Pa. 358,2 A.2d 809(1938), was held to have

been authorized by a 1929 Legislative en ctment which was repealed upon passage

of the Comrnonwealth Attorneys Act, sirpra, in 1980. Former section 907 of the

Administrative Code of 1929,71 P.S. §297,authorized President judges ofthe Courts

ofCommon Pleas to request in writing tha the Attorney General intervene in criminal

matters and supersede the local DiStrict Attorney. See statutory history:

Commonwealth v. Harris, 501 Pa. 178, 460 A.2d 747, 751, fn. I (1983). Thus,

reliance upon the 1938 case by the Lackawanna County Court in In re: County

Investigating Grand Jurv V.111, 2003, 200,5 WL 3985351 (Pa.Corn.P1. 2005) for the

general proposition that Pennsylvania cotirts have traditional or inherent authority to

appoint special prosecutors, was misplaced. See section 11(C)ofthat Opinion,p.9-10,

titled "Appointment of Special Prosecutor."

15. Another Lackawanna County grand jury later gave rise to a proceeding on

the issue of whether the Pennsylvania Shield Law,42 Pa.C.S.A. §5942, protects a

5
newspaper reporter from compelled disclosure ofthe source of a grand jury leak. In

Castellani v. The Scranton Times, 956 A.2d 937 (Pa. 2008), the Supreme Court,

while addressing the Shield Law, mentiot ed in passing that the Supervising Judge of

the Grand Jury had appointed a Special Prosecutor to investigate a leak, but as the

validity of the appointment was not at issue, no authority for the appointment was

cited.

16. In In Re Dauphin County Fourth Investigating Grand Jury,947 A.2d 712

(Pa. 2008), grand jury leaks had been 'complained of by individuals subject to

investigation. The Supreme Court issued a per curium Order under the King's Bench

authority of42 Pa.C.S.A. §726,directing he Supervising Judge ofthe Grand Jury "to

consider whether a special prosecutOr should be appointed to pursue the

allegations..." No authority in support ofthe contemplated appointment of a special

prosecutor was cited. Id., 712. Subsequently, a special prosecutor was appointed,

although, again, the later full Opinion by the Supreme Court does not cite any

authority relied 'upon for the appointment. ln Re Dauphin County Fourth

Investigating Grand Jury. 19 A.3d 491 (Pp. 2011).

17. In disapproving the appointment of a special prosecutor by the

Philadelphia Court of Common Pleas, to stupersede the local District Attorney in the
1
conduct ofa grand jury investigation, outisde the terms of71 P.S. §297,the Supreme
Court of Pen.nsylvania expressly held that Pennsylvania courts had no such extra-

statutory authority, and "there is no public office in Pennsylvania known as Special

Prosecutor." Smith v. Gallagher, et al, 408 Pa. 551, 185 A.2d 135,149(1962). The

Supreme Court in Smith pointedly disapproved the proposition that Pennsylvania

courts have in.herent independent power io appoint special prosecutors, as follows:

[T]he intervening appellants Say that Judge Alessandroni did have
the jurisdiction and the authoritylto order a special grand juiy and
appoint a special prosecutor. Theqral and written arguments submitted
i.n behalf of this thesis, however, luack conviction or even persuasion.
They speak vaguely ofinherent auttlority, common lawjurisdiction and
traditional powers.

Id., 146; and at length further at 151-154.

18. Although Smith v. Gallagher was decided by the Supreme Court in 1962,

nothing in either the Investigatima Grand Jury Act or the Commonwealth Attomeys

Act, both adopted in 1980, has corrected the lack of authority to appoint special

prosecutors vigorously pointed out by Justice Musmanno in 1962. Mere lapse oftime

has not provided new constitutional or statutory authority. Indeed,since repeal of71

P.S. §297 by the Commonwealth Attormys Act in 1980, 71 P.S. §732-502, no case

has been found at any level of the Pennsylvania judiciary which has cited any

constitutional or statutory authority for the appointment of a special prosecutor.

19. There was no necessity for the appointment ofa special prosecutor in this
rnatter, since, according to publicly knom facts, several county District Attorneys

had jurisdiction to both investigate any "1,eak" by the OAG and prosecute anycrime

found to have been committed. Such couhty District Attorneys appear to i.nclude,at

a minimum,those serv.ing Montgomery C6unty(site ofthe2009 grand jury),Dauphin

County (site of the principal office of A torney General Kane and nurnerous other

OAG officers and employees), and Philadelphia County (site of the Philadelphia

Daily News). Reinforcing the avai.lability of at least those three counties, the

Investigating Grand Jury Act by its own terms expresses a preference for county

arand juries over multi.-county grand juries, unless "the investigation cannot be

adequately performed by an investieating; arand jury under section 4543 (relating to

convening county investigating grand jury). 42 Pa.C.S.A. §4544.

20. The argument that the appointment of a special prosecutor was'necessary

since the Office of Attorney General 'would have had a conflict of interest in

investigating itse.lf does not answer eithiCr: (I) the complete absence of statutory

authority for such an appointment; or(2)the availability ofseveral alternative county

District Attorneys to whom the investigation could have been referred.

21. The appointment of Special .Prosecutor Thornas E. Carluccio, and the

proceedings of the Thirty:Fifth Statewide Investigating Grand Jury related to any

matter submitted or actions taken by the Special Prosecutor, were and continue to be
without legal authority, and null and void'ab initio.

WHEREFORE,it is requested that the Supreme Court vacate the original Order

appointing a Special Prosecutor in thi , matter under the applicable Notice of

Submission or otherwise. It is further requested that the Supreme Court prohibit

enforcement ofall subpoenas issued by the Special Prosecutor under the authority of

the Supervisina Judge of the Grand Jury;'and further prohibit issuance of any report

or presentment by the Thirty-Fifth Statekvide Investigating Grand Jury based on any

inatter submitted to the grand jury by the Special Prosecutor.

Respectfully submitted,

4.

e/o."0-e76p,M
Christopher P.Caputo, Esquire
Caputo &'Mariotti, P.C.
730 Main Street.
Moosic,PA -18507
Telephone: 570 342-9999
FAX: 570 457-1533
.Ernai I:cpcaputo@caputornariotti.com
.PA Suprerne Court ID 73446
Attorneyfor David Peifer

9
 STATEWIDE INVESTIGATING GRAND JURY
SUBPOENA

TO: David C. Peifer :SUPREME COURT OF PENNSYLVANIA
1
:NO.[176 M.D. MISC. DKT.2012
:MONTGOMERY COUNTY COMMON PLEAS
2644-2012

1. YOU are ORDERED to appear as a witness before the PENNSY1VANJA STATEWIDE
INVESTIGATING GRAND JURY, 1000 Madilon Avenue (corner of Trooper and Van Buren
Roads), Third Floor, Norristown, Pennsylvania on Monday, January 12, 2015 through Friday,
January 16, 2015, at 8:00 O'clock A.M. to testify:and give evidence regarding alleged violations of
the laws of the Commonwealth of Pennsylvania and to rem* until excused.

Please report on Monday, January 12, 2015 1:00•NYI
2. YOU are further ORDERED:

FAILURE to attend may cause a warrant to be issued for your arrest and will make you liable
under penalty of law for contempt of Court.

DATED: December 3, 2014 fa.4.&;z07 A? ea/I/sae/de?

lion. William R. Carpenter
Supervising Judge

If you have any questions about your appearance, contact Special Prosecutor Thomas
Carluccio, at 484.674.2899.

Notice: 123 Subpoena: 1624
 IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY,PENNSYLVANIA

IN RE: : SVPREME COURT OF PENNSYLVANIA
: NO.176 M.D. MISC.DKT.2012
THE THIRTY-FIFTH STATEWIDE
: MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY : 2644-2012

NOTICE OF RIGHT OF COUNSEL

1. The Thirty-Fifth Statewide InVegigatino Grand Jury is conducting an investigation
into possible violations of Pennsylvania Criminal Laws.

2. As a witness subpoenaed to appear, testify, and/or to produce documents, records
or other evidence before the investigating grand jury, you are entitled to the
assistance of counsel before, during and after your appearance before the investi-
gating grand jury, including assistance duting the time when appearing before the
grand jury.

3. If you desire the assistance of counsel and cannot afford an attorney, counsel will
be appointed by the Supervising Judge for you.

4. If you wish. to consult with an attorney before your appearanée before the
investigating grahd jury or if yOu wish to have an attorney with you during your
appearance before the investiOting gind jury, or both, and you are able to afford
your own attorney, you should make ar:rangements with that attorney as soon as
possible so as not to delay your scheiduled appearance before the investigating
grand jury. If you are unable to afford ypur own attorney, but wish the Supervising
Judge to aPpoint an attorney with whorn you may consult and who can accompany
you during your appearance before the )nyestigating grand jury, please contact the
deputy attOrney general listed on the bottOm Of yodr*subpoena who will contact the
Supervising Judge for the purpose of obtaining appointed counsel for you.

5. If you have any questions concerning the above or otherwise about your
appearance, please contact the deputy attomey general listed on the bottom of your
subpoena.
 COMMONWEALTH OF PENNSYLVANIA
Statewide Iffilesti§atliii Grand Jury

MEMORANDUM

SUBJECT: Hotel/Transportation Arrangements

TO: Grand Jury Witness

FROM: Executive Secretary for the
Grand jury •

You have been subpoenaed to appcar in Norristown to testify before the Statewide Investigating
Grand Jury. If you are in need of hotel accorripodations the evening before testimony, or bus
transportation arrangements, you must contact the Deputy Attorney General listed at the bottom of your
subpoena immediately. Air travel within the Utmidonwealth is ordinarily not permitted, unless
authorized by the Deputy Attorney General. If yoU are in need of train tickets you must purchase your
own coach class tickets and attach both incorning/outkoing stubs to your expense sheet for reimbursement.
If you make any travel or hotel arrangements on'your own,please be advised that you will only be
reimbursed for authorized expense§ at the Comdonwealth rate.

With regard to hotel lodging, •the Componwealth will pay for only your room rate
(Commonwealth's rate). All incidentals such as movies or telephone calls are at your expense and are not
reimbursable on your cxpense sheet. Parking charges and rbom service charges are not included in the
room payment made by the Office of Attorney Generl. You• will need to obtain receipts and attach to the
expense sheet given to you upon arrival at Grand Jury for those charges to be reimburSed (minus any
gratuities). Prior to arriving'at the Grand Jury on the morning you are scheduled to testify you must check
out of your hotel room and pay for any extra chaiges.

Once you arrive in the lobby of 1000 Madison Avenue,proceed to the grandjury reception area on
the third floor or wait and a law enforcement officer from the Office ofAttorney General will meet you in
the lobby. SUBPOENAED WITNESSES ONLYLNO GUESTS ARE PERMITTED ON THE
PROPERTY—THEY WILL BE ASKED TO LE4VE! THIS INCLUDES THE PARKING LOT!
Please folloW the law enforcement officer's instructions as to those allowed access fo the grand jury floor.
Upon entering the Grand Jury suite you will be instrucited by the secretary at the desk to sign in and will be
given an expense sheet You will also be given a stick'fr to wear that identifies you as a visitor. Place the
sticker on your clOthing, either on your right.or 1,shoulder. In order for you to obtain full
reimbursement, the following receipts will be flitted: Parking, turnpike tolls, and/oi taxi fare
(gratuities will not be reimbursed). If you made your own tEavel or hotel arrangements in order to
be reitnbursed you must supply a receipt indicatitng..a zero balanc.e ts dt!e and shows method of
paytnent. Again, you will only be reimbursed at the ComtnonWeilth!s t'ate.

SPECIAL NOTE: COMMONWEALTH OFPA EMpLOYEESAPPEARING BEFORE THE GRAND
JURY IN THE COURSE OF THEIR EMPLOYMENT ARE TO MAKE THEIR TRAVEL AND
HOTEL ARIUNGEMENTS AND SEEK REIMBURSEMENT THROUGH THEIR OWN STATE
AGENCY, UNLESS OTHER ARRANGEMENTS ARE MADE HITE THE DEPUTY ATTORNEY
GENERAL WHOSE NAMEAPPEARS AT THEBOTTOM OF YOUR SUBPOENA.

PLEASE NOTE: NO SMOKING PERMITTED!
EXH BIT A
1/6/2015 State AG.probed PhiIly NAACP leader Mondesire's finances 5 years ago - Philly.can

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State A.G. probed Philly NAACP
leader Mondesire's finances15 years
ago
BY CHRIS BRENNAN, Daily News Staff Vritor
brennacephillynews.com, 215-854-5973
POSTED; Juno 00 2014

STATE ATTORNEY General Kathleen Kane is ieviewing a 2009
grand-jury investigation of J. Whyatt Mondesirelformer head of the
NAACP in Philadelphia, and one of his employees, according to
documents obtained by the Daily News.
Mondesire's employee, Harriet Garrett, and her aughter pleaded guilty
t's Ike a p ayground for grown-ups.
in 2010 to stealing nearly 5220,000 in state gra ,i.money for a job- ,13001C YOUR WINTER .etac,..k.natel
training program. Garrett was sentenced to a mirmum of six months GETAWAY NOW1 v- a GrOC.,b
in jail and ordered to pay restitution. Her daughter got 18 months'
probation.
Do You Have These? ei
A 2009 memo written by then-Deputy Attorney general William Davis
faggot, Cortxtorn
Jr. says investigators 'uncovered what appeared to be questionable Craving*
spending" of state money by Mondesire. Gloating
ttcltyl
It's like a Kane. a Democrat. is now trying to deterrnine what happened with the
Mondesire investigation. Gov. Corbett, a Republ can, was the attomey
Burning Ero

playground for general at the time.

Mandesire, 64, says he was never questioned apci denies any financial
Lack of
Motivation

grown-ups. wrongdoing.
Stolkog
Orlo Constitution
or Otantionj
The 2009 Davis memo (retailed for his bosses what had been Belly Skin
uncovered about Mondesire and Garrett, who wcirfked at the onO FLuturk
Philadelphia Sunday Sun, a weekly newspaper Mondesire publishes.
Learn More»
A nonprofit called Next Generation Cornmunity development Corp.,
which is operated by Mondesire, held a state-g4emrnent grant for a
jobs-training program in 2004 and 2005. but handed it off to Garrett, Ve.Rccouzrncnd
who ran another nonprofit called Creative Urban Education Systems,
or CUES, accordinsto the Davis memo. The Rev. Carl Fitchett to lead Philly
NAACP
Mondesire was listed as chairman of the CUES loarz1, the memo
noted, while Garrett served as the treasurer for Next Generation's Apri 111, 2014
board.
Questions over Philly NAACP finances
Davis wrote his memo to then-Chief Deputy Attorney General Frartk January 24, 20r4
Fine and then-Senior Deputy Attorney General d Marc Costanzo.
Board members from NAACP leader's
Corbett. as attorney general, narned Fina fn 2006 to head a rtew public-
nonprofit sue to see the books
corruption unit and Costanzo to work on cases fOr the unit in the
Jonoø, 2014
Philadelphia region.
Fine and Costanzo nowwork in a similar unit torDistrici Attomey Seth Mondesire's friends-turned-foes get
access to his books
Juno 12, 2014
In the memo, Davis wrote:
• Next Generation's bank-account records, obtained with a grand-jury
subpoena. showed deposits of S1.3 million in go*,-ernment grants in a
one-year period. lr
Another 5521,000 in the account came frorn poli cal campaigns, rent
Payments and the interrningling of money front die Sunday Sun, which
Is owned and operated by Mondesire, the momosaid.
• Next Generation paid $2.273 to the Philadelphia Club, a private and
exclusive club in Center City.
'Next Generation spent 'tens of thousands," %wiling checks to pay
Mondesire's American Express bill for -clothes, fftod, lodging gas and
entertainment and a loan from Mellon Bank. There were also checks
written to Mondesire and to 'cash."

htto)articles.ohilly.com/2014-06-06fnews/50390468 memo-whvatt-mondesire-oeneration-communitv-develoornent-coro 114
 r
11
1/6/2015 State AG.probed PNIly NAACP leader Mondesires finances 5 years ago - Philly.com

• Next Generation wrote checks for $169,960 toliCharles and Oaudia a,
Tasco and their company. C&C Construction.(Charles Tasco Is the
son of City Councilwoman Marian Taste, a friend and political ally of
Mondesires for rnore than three decades.) '1

• S6.431 in CUES money was given to Mondesire for what Garrett
called consulting. That type of expense was not allowed, according to
the rules of the grant.
• In *various correspondence between Garrett ird Mondesire
discovered by investigators, she questioned payments of more than
570,000 he rnade to Claudia Tasco.

• CUES paid 51,099 for health insurance for MOndesire.
• Davis wanted to question Mondesire - and povibly subpoena him for
sworn grand-jury testimony - about Garrett. CUES and Next
Generation.

Never questioned
kilondesire. a forrner Inquirer reporter who served as the top aide to the late U.S. Rep. Bill Gray. said no one from the A.G.'s
Office ever questioned NM
*We didn't WO any money for personal gain," Mondesire said.

He said that he has not seen the A.G. Offices ocuments and twice declined an offer frorn the Daily News to review them.

Mondesire said C&C Censtruction worked on foUr properties, including the NAACP headquarters and his newspaper office, where
the Next Generation non-profit is also located.

•We bought supplies with rny American Expres card for construction," he said.
*They never asked me a single question back ii2O09. We rehabbed the buildings. We spent money buying stuff for the buildings.
construction and paying off developers.*

Gan-ett declined to comment about the investigations. Her daughter did not respond to requests for comment.
The May 2010 news release about Garretes arrest featured Corbett laying out the charges.

Corbett did not respond this week to two questi ns: Was he briefed on the Mondesire investigation and did he play a role in
deciding what happened with that probe?
Mondesire was suspended by the NAACP's natiorell headquarters in April after he feuded publicly with board members about the
finances of the local chapter and Next Generatitšn.

Those board members - Sid Booker, Donald "D hy. Bins and the Rev. Elisha Morris - also were suspended.
Booker and Morris. who say they are still Next Generation board mernbers, are now asking a Common Pleas judge to force
Mondesire to show them the nonprofit's financial records.
As a fudge considers that request. Kanes staff r reviewing what became of the 2009 Mondesire probe.

David Peifer. who heads the A.G.'s Bureau of Special Investigations, on March 21 interviewed Michael Miletto. the special agent
who investigated Garrett and Mondesire,

The Deity News obtained a transcript of that taped interview.

Miletto told Peifer that he subpoenaed Next elenerations bank account, the transcript shows,
'Viten I did that, I found that there was a whole bunch of money that appeared to me to be donations to the NAACP. not
(Mondesirej, and they were going into Next Generation's account and they were being used for(Mondesires)lifestyle - much of
it: Miletto told Pellet.

Miletto said he was taken off the case after Fine and Costanzo were told about the probe, according to the transcript.
Milano said *criminal activity was just ignored' after that. He added that two accountants who had worked for Mondesire had
provided taped statements, with one asking for fitununity and the other asking tor protection.
Fine and Costanzo declined to comment about the Mondesire investigation, citing the secrecy of grand-jury proceedings.

Davis. now in private practice, also declined to lomment, citing the same restriction.
Mitetto, who still works for the A.G.'s office. alscideclined to comment.
Peifer referred questions to Kane's comrnunicatiOns staff.
J.J. Abbott, a spokesman for Kane, declined to comment.
The Kane-Fina feud
Fine and Costanzo have a complicated and controversial relationship with Kane.
Kane criticized Corbett's tenure as attorney general when she ran for cdfice in 2012, specifically targeting the Penn State child-
abuse scandal that sent former assistant football coach Jerry Sandusky to prison.
Kane's staff Is now conducting an extensive review of that investigation.
Fine led the Sandusky probe.

Kane, on Feb, 5, issued a statement noting that per offices Sandusky review had been underway for one year, adding that delays
in the undertaking *will be described in more detail when the report is rnade public."

httrellarticles.ohillv.com/2014-06-06hews/50390468 1 memo-whvatt-Mondesire-oeneratiOn-CornmuniN-develooment-coro 2/4
1/6/2015 State A.G. probed Philly NAACP leader Mcodesire's finances 5 years ago- Philly.com

A month later, the Inquirer reponed that Kane declined to pursue an investigation previously led by Fina and Costanza starting in
2010, that used Philadelphia lobbyist Tyron Ali'as a confidential informant to tape conversations with four Philly state
representatives and a former Traffic Court judga On the tapes, the representatives and judge accept cash or gifts from Ali.

Kane has said Fine droppoci 2,033 criminal courits against Ali, who had been charged with stealing S430,000 from a state
program, 24 days before she was sworn into office.

She said that 'extraordinarily lenient deal 'crippled the chance of this case succeeding in prosecution.'
Fina, in a letter published by the Inquirer a week' her the first story ran, called on Kano to explain her decision.
a
The Inquirer also published a letter that day from Firm's boss, Williams, critical of Kane.
Kane eventually tumed over the Ali case file 101i/24143ms, who is now examining whether charges can be brought against the four
representatives and the Traffic Court judge, whOis currently on trial in an unrelated federal corruption case.
On Twitter: @ChrisSrennagiN
Slog: ph.ty5Fheiy0out,corn

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EXHIBIT B
1/6e2015 Montco lawyer leading inquiry into whether'keno's office leaked grand jury information - Philly.com

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Collections • Special Prosecutor

Montco lawyer leading inquiyy into 0 0_ i

whether Kane's office leaked grand Tweet t

jury information How to GetRid of Dark S (N.)

Watch.Shocking Presentarion

We Recommend
By Angola Couloumbis and Craig R. McCoy inquirer Staff
Writers
POSTED: September 04.2014 Kane denies bid to release controversial
e-mails
A veteran lawyer frorn Montgomery County is the special prosecutor SeXerrIX1r 20t4
heading the inquiry into whether state Attomey General Kathleen G.
Kane's office leaked grand jury inforrnation in anteffort to discredit her Kane to decide wbether to release state
critics, The Inquirer has teamed. workers racy e-rnails
Thomas E. Cartuccio, a criminal defense lawyer'in Plymouth Meeting stfpfamber 21, 20t4
GALLERY: and former prosecutor in Delaware, was appointid over the summer by
Thomas E. Castillejabs Kane on-gravity of inquiry
Carlucclo is a a Montgomery County judge to explore how secret records became
defense public this year about a 2009 investigation by 14 Attorney Generars deem/ter r5, 2014
Lawyer._ Office involving Philadelphia political activist J. rhyatt Mondesire,
according to several people familiar with the matter. Special prosecutor probes Pa. Attorney
General's Office
No charges were brought against Monctesire in tile case. The September 2014
investigation, details of which appeared in a Jun,story in the
Philadelphia Daily News, took place before Kane became attorney
general.
Find ill'ore Stories About
Caducclo did not respond to messages left by phone and o-rnall
Tuesday. Renee Martin, Kane's Poling director of communications, Special Prosecutor
said the office would have no comment.
Kane
The Inquirer first reported news of the special preseculors
appointment on Sunday. Sources said ¡nvestlgafors in the inquiry have
Issued subpoenas to Kane's office and others. ,
Carluccio was appointed by Judge Williarn Carpenter, the supervising
grand jury judge in the eastem pan of the state, the sources said. Both
men are Republicans. Kane is a Democrat.

httoi/articles.ohillv.com/2014-09-04/news/53527771 1 soecial-orosecutor-attornevioeneral-kathleen-o-kane 1/3
1/612015 Montco lawyer leading inquiry into whether Kanes office leaked grand jury information - Philly.com

Though there have been past leak inquiries, thil appears to be first 0YOUR REAL ESTATE PRO
time the state attorney general or top staffers in the office have come
under scrutiny. Such an inquiry typically require's the approval of the
chief justice of the Pennsylvania Supreme Coult, according to a
Kevin
spokesman for the Administrative Office of Pennsylvania Courts. Weachter
A person v.to violates grand jury secrecy rules ray be found guilty of • Your Local Expert
contempt of court and sentenced to up to six months in prison.
for
Cartuccio, 57, worked as a state deputy attomey general in Delaware • Salunga-landisvdie,
before switching sides to work as a defense attdmey in Pennsylvania. PA
His wife. Carolyn Tometta Carluccio, is a judge.iA Republican, she
joined Carpenter on the Montgomery County Cornmon Pleas bench in Saltinga-Landisville, PA
2010. tztlitqv, 717-278-6496
The leak to the Daily News involved a 2009 investigation by former ARLO JkavipWce!
Chief Deputy Attorney General Frank G. Fine and onetime Senior
Deputy Attorney General E. Marc Costanzo. Fi ,who handled the
offices highest-profile criminal cases, left his psltion shortly after
Kane took office.

Heated battle
Fina and Kane have been locked in a heated btle over the last two years on how certain cases were handled.

Kane, for instance. brought in a former federal pirosecutor after she was elected to review Fines prosecution of former Penn State
football coach Jerry Sandusky on child sex-abeie charges.

During her campaign for office, Kane said the Sandusky probe might have been delayed for political reasons. The independent
review found no evidence of that.
And for the last six months. Kane has faced crycism for shutting down a sting operation launched by Fine that sources and
investigative docurnents say captured five Philadelphia Democrats, including four state legislators. on tape accepting money or
gifts.
As criticism over the sting case mounted, the Philadelphia Daily News reported in eady June that Kane was conducting a review
of Fines handing of a 2009 investigation into Mondesires finances.

things. a secret investigative memo summarizing the status of the Mondestre
The newspapers story discussed, among otheri
probe.
Mondesire, the forrner president of the Philadel ia NAACP. has denied any wrongdoing.

Explicit e-mails
The leak investigation has been complicated ba separate but intense legal fight over the exchange of sexually expficit e-mails
among forrner and current state officials.

The e-mails have become an issue because some Kane critics argue that Kanes office is using the threat of their release as a
way to silence criticism of her. sources have told The Inquirer.

The messages were discovered during Kane's review of the Sandusky investigation, which involved going through thousands of
documents.

The Inquirer has reported that the e-rnails were Shared on state computers and sometirnes through government e-mail accounts.
They are said to have contained pornographic images, jokes, cartoons, and other private messages.
Though not all of the recipients are known, some of the material circulated among scores of officials, from homicide investigators
in the Attorney General's Office to state proseators and other state officials, including top Pennsylvania jurists, The Inquirer has
reported.
While Judge Carpenter in Montgomery County iS overseeing the leak probe, a different judge. Norman A. Krumenacher 3d, of
Cambria County, has jurisdiction over the e-aiail issue.

Several news organizations, including The Inquirer, have put in right-to-know requests for the e-mails, But Krumenacher has
ordered a stay on the release of the e-mails.
He oversees the grand jury in Westem Pennsyllania as well as the legal issues involving Kane's review of the Sandusky
prosecution. The e-rnails in questions were unearthed by computer experts as part of that review.

acoulournbis©phillynews.com

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EXHIBIT C
1/6/2015 Pennsylvania AG Kane grand jury may miss New Year's Eve deadline I TribLIVE
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Pennsylvania AG Kane grand jury may miss
New Year's Eve deadline

You Need lt. We Got It.
Place Your
A
Attorney General Kathleen Kane speaks during a news conference Friday, June 272O14. at the Capitol in
Classified
Harrisburg. Pa.

r. ay Brad Bumsied
Ad Here
monday,Dec 78, mud,I2t am.

HARRISBURG — There's nothing magical about the New
rDZIBIT?la ir1 Getit rfiiht. Now.

Yearb Eve deactlino Icr a gland jury to finish its work
examining whether Attorney General Kathleen Kane violated
grand Jury Secrecy by leaking documents to a Philadelphia
VIDEO Noto Vida011 I
newspaper, and tho outcorno could take weeks or months to
be revealed,(egad experts sald.
Several poosde close to parties Involved In the Investigation
suggest tho grand jury could continue to meet tivough mid-
January.
1,ive dont discuss the grand fury activities. It Is not pudic."
Kone's spokesitornan, Renee Martin, said.
Kanes laviyers have said she did nothing wrong and
committed no crime.
Even if resdution of the matter Is imminent, es rtertS saki, the
result may not be.
Mimes no way to anticipate the timeline,* said longtime
criminal defense attorney Milian; C Costopoulous of Lemoyne
in Cumberland County.
Judges sometimes seal grand My presentments. AM the
grand Jury's recommendations could bo referred to a district
attorney, who may deckle that further investigation is
necessary.
The results could range from clearing Kane, or making no
report directing Kano to explain at a hearing why she should
not be held in contempt of coutt or recommending criminal
charges such as perjury cc obstruction of lestice.
If the grand Jury linds no wrongdoing or need for a critical
roan, II could Issue a report specifically clearing the parties
Involved, Costopotious said.
*The range cd possibilities is fairly broad, said Bruce
Antkowiak, a Former federal prosecutor end law protessor al
Sr, kirricrvv (Wrenn in Unity, Click Covers for Deals
htto://triblive.contooliticsfociiticalheacIlines/746.1612-74taranci-jurv-kane#auz3031Ts62Y 1/4
1/6/2015 Pennsylvarila AG Kane grand jur4lay rniSs. New Years Eve deadinei TribLIVE

Kane teStified laSt month before the grand jtrry in Moragorpoy
County and acknowledged that she knew het office molded
the Philaddphia Da$y News Information from 62009 case
about a man never charged vrith a crime. posalbly to
embarrass a former prosecutor with whon Kane is feuding.
Kane at Oarks Summit near Scranton Is the first woman and
first Democrat elected as attorney general. She said she
believed the material leaked was not covered by grand jury Daily Photo Galleries
secrecy,
The Investigation of a statewide law ertforcemern official by a
court-appointed special prosecutor is unustml, if not
unprecedented, exports said, PorinsyNania Supreme Court
Chief Justice Ronald D. Castillo, who must retire Wednesday
because rto is 70,appointed as prosecutor Thomas Canuccio,
a Norristown attorney sdected by Montgomery County Judge
5 DAYS LEFT
Writlam Camenter.
Castale said there's precedent for cant-appointed special
pmsecutors to hande grand fury leaks.
gRviz
But since the state's first elected attorney general took office Staple.s
ati. 5, 2I5-
in 1980, none has undergone such an inquiry. said G. Terry
Madonna;n politicsd science professor at Franklin 8 Marshall
Politics Phott Galleries
College in Lancaster. Former Attorney General Ernie Preate, a
Scranton Republican, resigned in 1995 uoto Pleading guilty to
a federal ma$ fraud charga
With grand fury secrecy, scene 'assumptions must be made" to
analyze the Investigation, said former Mcintgornery CoUnty
District Attorney Bruce Castor. a Republican county
commissioner.
-The fest assumption I make is that the special prosecutor has
no enforcement authority over the laws el the commonwealth:
Castor said.
'Anything Iha special prosecutor uncovers could be
Inadmissible If it was gathered by a persen without the G P iuctc st ere eAoected on
authority to do so.' in Congress
Thal may result In a referral of arty findinss to a district
Manley, who may want to'reinvestigate' by talking with
witnesses end reviewing documents. Castor sa!d.
Castor and wens bdieve the coun has authority to decide ccotempt of court, which they consider an "offense
against the coun:The penalty lor contempt in a grand Jury teak is up to six month; in prison.
Therde inherent authority for the court to investigate a leak when 'there Is a conflict of interest: Antkowiak
sold. Kane 'could cenalnly not Investigate heisefl:
If there's no solution. a potentially serious criminal act goes urvaadressed; Arrtkottriak said.
Kane has said sho imends to seek re-election in 2016. But a critical grand jury repeal could be Very nasty and
affect her career, Castor said. NcShing prevents the transfm of the grand jurys wo4 to anothei grand jury, 11
needed, though Mat could cause legal obstacles and delays, he said.
Brad Burnsted is Trier Total Modia's state Capitol reporter. Reach him at 717-787-1405 or
bbunistedStribeweb.corn.

jp Subscribe todayi Click here for our subscription offers.

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EXHIBIT D
1/6
, 2015 Stakes are high fey Kane at gram!jury rneeting

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Stakes are high for Kane at grand AdverUse:inent

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Angola Deuloumbis and Craig R. McCoy, %/Nor Staff Writers
Latest News Video
POSTED:&today. Januaty 4, l3 108 AM

Ottihiguirer

Over the last year. Pennsylvania Attomey General Kathleen
GALLERY:Stakes are G. Kane has stumbled from one professionally damaging
for Kane at grand jury
meeting matter to another.

Now she faces another obstacle - and potentially the biggest
yet.

Eatly this year, a statewide grand jury meeting in Norristown
is expecled to decide whether the onetime rising political star
violated prosecutorial rules by leaking 4cret information to
embarrass her enemies.

For Kane, the stakes are high: The grand jury could go so far
as to recommend criminal charges, putting her in the
awkward position of defending hersetf against allegations that
Moa Viewed Nitteg storiev
she broke the law while serving as the slate's top enforcer of
law,
Bolaris: Snow for Tuesday morning

httaihvww,ohillv,com/ohillv/news/cditics/20150104 Stakes are hiah for Kane al arand iurv meeting html 1/10
102015 Stakes are high ffx Kane at grand jury meeing

Even supporters acknowledge that thepext few weeks could
mark a make-or-break moment in her &veer. The risks range
frorn a written rebuke, to being found irtcontempt of court, to
a criminal charge of obstructing justice
5 charged in killing
Te next few weeks will be a tuming ;Tint for her; said John near playground
Morganelli, the Democratic district attorrey in Northarnpton
County in the Lehigh Valley, "If it ends in a conternpl citation
by a judge, it may not be devastating. BLit if there are crimes-
Ethicists question
code violations, that could be problematic." Christie's free tickets

Kane,a Democrat,has acknowledged pat her office released
information about a grand ji.try case runtby her Republican
predecessors. But she has contended that the information
Frein ordered to
was not confidential grand jury material,. stand trial

She has also strongly suggested that the leak investigation is
aimed at destroying her politically. I.
4 new millionaires
"I am fighting for an end to abuse of the'criminal justice thanks to Pa. lottery
system: Kane said in November, as she was heading in to
the grand jury to testify. if this can be +ne to me as attomey
general, the chief taw enforcement officer of the fifth-largest
state in the country, I am sickened to thInk what can and may
be done to regular, good people.'
e=111
The leak inquiry was authorized in the limmer by former START
STRONG. 111....mat
state Supreme Court Chief Justice Rontid D. Castille, a .te4
Tra eel Depts Republican. The grand jury meets in sefet. and,in an HOVER'FOR kovee Foe
CIRCULAR clacutAa
unusual move, witnesses before the panel have been ordered
not to discuss their testimony publicly, according to two Watmart
people familiar with the matter.
F000 WILMA - DOLLAR GENERAL
The Inquirer has teamed that a numberf former high-ranking
officials in Kane's administration have testified, including her
S 339 E. up — London: 4- former first deputy, Philadelphia lawyer Adrian King, and her *
:11 .arga
13
-- *
V ma Tri
r Escape *nous,
Etroaktasts8 Air onetime chief operating officer, David Tyler. Howard Bruce • HOVER FOR HOVER FOR
CIRCULAR • • '
' -CIRCU(.AR)
Sao a0 warel(tante • Klein, the attomey for Linda Dale Hotta, another former top
Kane aide, declined comment. FOODIRLION mum coma)
MID ITV MA/IWO°
`0=a-traelL eta crr*-1,--1
In the main, people familiar with the motìer say, the grand jury
is examining how intemal documents frarn a 2009 grand jury
Shop Team Goar investigation led by the Attomey General's Office ended up
being cited in a Philadelphia Daily Ne 'story this past June.
Pealartelpnia Eagles ,
10Ornrn Glass MU • It's your choice:
Ornament AIM
Marabou •Inlennatioa Technology
Expanded inquiry
® Electronics Technoloa
The investigation involved alleged financial improprieties by J. 0 Business
Whyatt Mondesire, the former president the Philadelphia ▪ Caiminzi Justice
NAACP. It was overseen by then-state prosecutor Frank G. 0 Health Sciences
MD E
Fine, with whom Kane has been locked tor months in a bitter ® Drafting and Design
S10.99(26% WO and tangled dispute over how certain cases were handled.
Etuy Now
Isa on Phiny.emn
prey nnat The grand jury has expanded its inquiry o examine Kane's BuSINEss;
decision in the fall to release the narnes of eight men who Organic market
planned for made-
traded pomographic e-mails on state time,The Inquirer has over East Market
learned. All eight had ties to Fina.

Kane's political star began to dim last yeiar after The Inquirer
HEALTH:
reported ',fiat she had shut down a sting investigation 1 o healthy food trends to expect in
launched by Fina, even though the undercover operation had 2015

caught public officials on tape accepting Cash. To some, the
11111111=Nlealle
titto://vAvw,ohilly.com/ohillyinews/oolitics/20150104 Stakes are hilt) for Kane at &and iurv meetinohtml 2/10
1/612015 Stakes are high fr Kane at grand jury meeting

story in the Daily News seemed designed to strike a
counterblow at Fina.

In a mirror image of the criticism Kane has sustained over the
sting, the newspaper article suggested that Fina had failed to SPORTS:
V 9 teams on Howard's
aggressively pursue the Mondesire matter. trade list

Fina was among scores of current or fo er staffers in the
Attorney Generars Office who exchanged sexually explicit e-
mails, and Kane has been intent on naming him in connection ENT F.RT AMMEMT:
A
with that, as she did with the eight officials, The Inquirer has Kevin Hart on Sony
Mier-hack:'It's not
reported. that serious to rne'

But sources say the judge supervising the leak inquiry issued
an order several menths ago effectivelyibarring Kane from
FOOD:
citing Fina's name publicly. The judge Id so after Fine and End of line for
others argued that Kane was using the threat of releasing the Geechee Girl Rice
Cafe
e-mails to intimidate them.

JOSS:
A year of controversy to low-stressjobs
that pay around
After a landslide victory in 2012 that made her the first woman $tooK a year
and first Democrat elected attomey geral in the state, Kane
swiftly built a national reputation in her first year in office for
her stands in favor of gay rights and gu(l control. Sla y Cnnuccied
Got tho latest PhiAy.cran Dagy Honanos nowslonor
Her second year, though, was marked t:iy controversy over Upavrod to your email. Sten up nowl
the sting, her retractions of public statements, and repeated Eitt9r 000/Øðe.8S3Io dr up
V
shake-ups of her staff. Amid that, she could not point to any
Atm*a phty.com rt 0 vcs 0 No
high-prof-de convictions to change the subject: The ^-,
Pennsylvania Tumpike pay-to-play corrtiption case she
announcer:I with fanfare early in office fi2Jed late last year
without any defendant receiving a jail s ntence.

While admitting the disclosure of information to the Daily
News, Kane - who declined comment kir this article - has said
f
the material was passed on In a way that did not violate
statutory or case law regarding grand jury secrecy."

Her contention: that Pennsylvania law hoas no statute that
binds an attomey general to grand jury secrecy. Indeed, the
state law establishing investigative grand juries makes no
mention of the attomey general. Rather;tit imposes secrecy
rules on the participants in the jury room, and it names them -
"juror, attorney, interpreter, stenographer," adding: "All such
persons shall be sworn to secrecy, and shall be in contempt
of court if they reveal any information which they are sworn to
keep secret."

One of Kane's lawyers, Lanny J. Davispas noted that when
the Mondesire grand jury was in session in 2009 - and
participants swore secrecy oaths - Kane was a stay-at-home
mom.

"It is our legal opinion that there has never been a case
dedded where a succeeding attorney general has been
accused of violating an oath that she never took," Davis said
in an interview late last year.

Beyond that, Kane contends that she attithorized only a very
limited disclosure of information to the Daily News: a
docurnent related to a review she launched last March

htto://www.ohillv.corn/ohillvtnewskolitics/20150104 Stakes are hiah fa Kane arand iurv meetina.htrn1 3/10
 F

1/6/2015 Stakes are high for Kane at grand jury meeting
exarnining how Fine dealt with the Mondesire allegations in
2009, Mondesire, who has denied any wrongdoing, was not
charged in the inquiry, which ended years ago.

Overzealous staff?

Yet the article also quoted heavity fromla 2009 intemal memo
detailing allegations against Mondesirei!Kane maintains she
has no idea how that particular document got to the
newspaper. In effect. she is suggesting1 that perhaps
overzealous members of her staff may ave erred in putting
together the infprrnation given to the neWspaper.

Finally, Kanes allies are questioning the very legality of the
investigation, saying no explicit statute permits such a leak
investigation.

Castille has rejected this argument, citing among other things
a state law that gives the high court the broad power to
"cause right and justice to be done.*

Nor are such leak inquiries unpreceden ed. The high court
has authorized them at least twice belle, In a 2007 case, the
investigation led to the jailing of an investigator from the
Attomey Generars Office.

G. Terry Madonna, the political analyst,4Says any finding that
Kane broke the law would be devastating to her image. Her
post ls closely tied to issues of character and integrity.
Madonna said.

'You are innocent until proven guilty,* he said. Tut she is the
states top law enforcement officer. Anyray you frame it, she
is going to be in an extraordinarily tenu us position."

acaattuarrytH-.0,tato 7%I.07591a gaargaban)

Angela Cuukanahis and Craig R.MeCoy
ImpsirerSuffWthos

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 CERTIFICATk OF SERVICE

Pursuant to Pa.R.A.P. 121 and In, the undersigned certifies that a true and

correct copy ofthe foregoing document was served on the individual listed below on

the date indicated by electronic transmission a id first class United States rnail.

Thomas E. Carluccio, Esq.
Special Prose4tor
:1.000 Madison. rAvenue
-Norristown,Pi 19403
-E-mail: mai1to:tornc3 corncastnet
Telephone:(484) 674-2899

January 6. 2014 0724 G.& peeilAe)
ChristoPher:P. Caputo,Esquire
Fetterhoff and
Caputo & Mariotti,P.C.
Moosic, PA..18507
Telephone: 570 342-9999
FAX: 570 457-1533
E-mail:cpcaputo@caputornariotti.corn
PA Supreme Court ID 73446
Attorneyfor.David Peifer
 2a/5--

Filed in Supreme Court
JAN 6 Z014
Middle
UNSEALED PER
ORDER OF THE
COURT DATED
AUGUST 26, 2015

IN THE SUPREME CO RT OF PENNSYLVANIA

IN RE: : SUPREME COURT No.

: GRAND JURY DOCKETS:
SUPR.EME COURT OF PA
SPECIAL PROSECUTOR, No. 176 MD 2012
THIRTY-FIFTH STATEWIDE • MONTGOMERY CO. COURT
INVESTIGATING GRAND JURY : No. 2644 MD 2012
Petition of: D.P.

EMERGENCY APPLICATION
FOR
LEAVE TO FILE ÓRIGINAL PROCESS

AND NOW,this 6th day ofJanuary 2015,comes David Peifer, by counsel,

Christopher P. Caputo, Esq., and present the following:

I. This Emergency Application For Leave To File Original Process is filed

pursuant to Pa.R.A.P. 3307.

2. The accompanying Ernergeî cy Application For Extraordinary Relief

invokes the jurisdiction of the Suprerne Court under both 42 Pa.C.S.A. §721(3)

(original jurisdiction ofthe Supreme Court in quo warranto), and 42 Pa.C.S.A. §726

Received in Supreme court

JAN 6 2015

Middle
(extraordinaiy or King's'Bench jurisdictibn).

3. 'En reference to the jurisdiction Cif the Supreme Court under 42 Pa.C.S.A.

§721(3) only, leave to file the accoMpanying Emergency Application For

Extraordinary Relief is requested on the ground that the Special Prosecutor in this

matter was authorized by the Supreme Cobrt, and such authorization would therefore

not be subject to review by the Supervising Judge of the Grand jury or any lesser

court. While all documents filed to the grand jury dockets in this matter are under

seal, it has been publicly -reported that Supervising Judge of the Grand Jury William

R. Carpenter issued the Order appointing 4ie Special Prosecutor in this case, pursuant

to a specific grant of authority by the Supreme Court to make such appointment.

4. The accompanying Emergenc Application For Extraordinary Relief has

also been filed pursuant to King's Bench jurisdiction under 42 Pa.C.S.A. §726, and

is not subject to Pa.R.A.P. 3307.

WHEREFO.RE, it is requested thav leave be granted under Pa.R.A.P. 3307 to

include within the accompanying Emerg ncy Application For Extraordinary Rel.ief,

a concurrent basis for relief under 42 Pa.C.S.A. §721(3).
Respectfully submitted,

P
Christopher P. Caputo, Esq.
Caputo & Mariotti, P.C.
730 Main Street
Moosic, PA i 8507
Telephone: 570 342-9999
FAX: 570 457-1533
Email:cpcaputo@caputomariotti.com
PA Supreme Court ID 73446
Attorneyfor David Pei.*
 CERTIFICATE OF SERVICE

Pursuant to Pa.R.A.P. 121 and 1.4 the undersigned certifies that a true and

correct copy ofthe foregoing docurnent Was served on the individual listed below on

the date indicated by electronic transmission and first class'United States mail.

Thomas E. Carltuccio,.Esq.
Special Prosecutor
1000 Madison Avenue
Norristown, P.A, 19403
E-mail: mailto: ornc3@corncast.net
Telephone:(484)674-2899

January 6, 2014 elowt, P
Christopher P. Caputo, aci.
Caputo & Mariotti, P.C.
730 Main Street
Moosic, PA 18507
Telephone: 570 342-9999
FAX: 570 457-1533
E-mail: cpcaputo@caputomariotti.com
PA Supreme Court ID 73446
Attorneyfor David Peifèr
 Filed in Supme Court
JAN 6 2014
Middle
UNSEALED PER
IN THE SUPREME COURT OF PENNSYLVANIA ORDER OF THE
COURT DATED
AUGUST 26, 2015
IN RE: : SUPREME COURT No.

: G'.RAND JU.RY DOCKETS:
SUPREME COURT OF PA
SPECIAL PROSECUTOR, • No. 176 MD 2012
THIRTY-FIFTH STAT.EW1DE MONTGO.MERY CO.COURT
INVESTIGATING GRAND JURY : No. 2644 MD 2012

EMERGENCY APP ICATION FOR STAY
OF
GRAND JURY:PROCEEDINGS

AND NOW,this 6th day ofJanuary 01 5,comes David Peifer, by counsel,

Christopher P. Caputo, Esq., and present the following:

1. This Emergency Application F r Stay of Grand jury Proceedings is filed

pursuant to Pa.R.A.P. 3309(d)and Chapt r 17.

2. The Applicant has been subpo naed by the Special Prosecutor to appear

and testify before the Thirty-Fifth Statewide Investigating Grand Jury on

January 12, 201,5.

Received in Supreme Court

JAN 6 2015

Middle
 3. Orderly review by the Suprene Court of the companion Emergency

Application For Leave To File Origina4 Process and 'Emergency Application For

Extraordinary Relief cannot occur prior to January 12, 2015.

4. The appointment of the Special ,Prosecutor in this matter was without any

authority under Pennsylvania law, as Set forth in the companion Emergency

Application For Extraordinary Relief. The Applicant has accordingly presented a

meritorious Application.

5. In the absence ofa stay,the Applicant's opportunity to secure relief, or even

consideration of any entitlement to relief, will be frustrated, and he will suffer the

immediate and irreparable harm of being compelled to testify pursuant to subpoena

issued by a Special Prosecutor appointed without lawful authority.

6. Determination by the Supreme Court ofthe legality of the office of Special

Prosecutor and any legal authority for the appointment of the Special Prosecutor is

a matter of immediate and substantial public interest.

WHEREFORE, it is requested that the Supreme Court issue a stay of the

proceedings of the Thirty-Fifth Statewide Investigatina Grand Jury as related to the

matters being presented to that Grand Jury by the Special Prosecutor and described

in the companion Emergency Application For Extraordinary Relief.
Respectfully submitted,

fuw--LopluA P
Christopher P. Caputo,'Esquire
Caputo & Mariotti, P.C.
V30 Main Street
Moosic, PA 18507
'elephone: 570 342-9999
FAX: 570 457-1533
Email: cpcaputoQcaputornariotti.corn
PA Supreme Court ID 73446
4Ittorneyfbr David Peifer
 CERTIFICATE OF SERVICE

Pursuant to Pa.R.A.P. 121 and 122, the undersianed certifies that a true and

correct copy ofthe foregoing document was served on the individual listed below on

the date indicated by electronic transmission and first class'United States mail.

Thomas E. Carttuccio, Esq.
Special Prosecuttor
1000 Madison Avenue
Norristown,PA! 19403
E-mail: mailto:torm3 comcast.net
Telephone:(484) 674-2899

January 6, 2014 -leaLaA,
Christopher P. Caputo, Esq.
Caputo & Mariotti,P.C.
730 Main Street
Moosic,'PA 18507
Telephone: 570 342-9999
FAX: 570 457-1533
Ernail:cpcaputo@caputomariotti.com
PA Supreme Court ID 73446
Attorneyfor David Peifer
 Filed in Supreme Court
JAN 9 2015
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT Mid&
UNSEALED PER
ORDER OF THE
IN RE: : SUPREME COURT OF PENNSYLVANIA
COURT DATED
: NO. 1 MM 2015
THE THIRTY-FIFTH STATEWIDE AUGUST 26, 2015
: MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY : M.D. 2644-2012

SEALING ORDER

AND NOW, this 9th day of January, 2015, it is hereby ORDERED, that the attached Opinion of

January 9, 2015 be filed under seal with the Supreme Court of Pennsylvania until further Order of this

Court.

BY THE COURT:

WILLIAM R. CARPENTER, J.
Supervising Judge

Received in Supreme
Court
JAN 9 2015

idols
 FILED UNDER SEAL

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

IN RE:
SUPREME COURT DOCKET
THE THIRTY-FIFTH STATEWIDE NO. 1 MM 2015
INVESTIGATING GRAND JURY
moNrwmpRy COUNTY
COMMON PLEAS
NO, 2644-2012

OPINION

CARPENTER J. JANUARY 9, 2015

FACTUAL AND PROCEDURAL HISTORY

David Peifer, Special Agent in Charge, Bureau of Special Investigations, an

employee of the Pennsylvania Office of the Attorney General(OAG"), was subpoenaed to

testify before the Thirty-Fifth Statewide Investigating Grand Jury on January 12, 2015. In

response to this subpoena, on January 6, 2015, Special Agent Peifer filed the Emergency

Application for Extraordinary Relief("Emergency Application") currently before the Pennsylvania

Supreme Court. Therein, he seeks to stay the Thirty-Fifth Statewidp Investigating Grand Jury

proceedings based upon his allegation that the appointment of the Special Prosecutor, Thomas

E. Carluccio, by me, as the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand

Jury, was improper.

In his Emergency Application, Special Agent Peifer seeks to vacate the order

appointing Special Prosecutor Carluccio, prohibit enforcement of all subpoenas issued by the

Special Prosecutor and further prohibit issuance of any report or presentment by the Thirty-Fifth
Statewide Investigating Grand Jury. See, Motion for Extraordinary Relief 1/6/15, Wherefore

clause, p. 9. Special Agent Peifer's Emergency Application should be denied based upon his

lack of standing; and even if he does have standing, his Emergency Application should be

denied because he has waived his opposition to the appointment of Special Prosecutor

Carluccio. Finally, were the Pennsylvania Supreme Court reach the merits of his Emergency

Application it lacks merit because a supervising judge of a statewide grand jury has the inherent

authority to appoint a special prosecutor.

This Emergency Application was never served upon me. I had no knowledge of it

until I was made aware of it by the Pennsylvania Supreme Court. Not only was the basic and

common curtesy of properly serving this Emergency Application upon me ignored; but also,

counsel never presented any aspect of this matter to me for adjudication. This matter should

have come before me as a motion to quash a grand jury subpoena. Perhaps counsel was trying

to make an end run around the possibility that such a motion would be denied, and would not be

presently appealable as an order denying a motion to quash is considered interlocutory. In re

Dauphin County Fourth Investigating Grand Jury, 596 Pa. 378, 943 A.2d 929(Pa. 2007), the

Pennsylvania Supreme Court discussed the interlocutory nature of an order denying a motion to

quash, and the proper procedure for challenging such an order as follows:

As a general rule, an order denying a motion to quash a subpoena
is considered interlocutory and not subject to immediate appeal.
One seeking to challenge the propriety of a grand jury subpoena
must generally choose between complying with the subpoena and
litigating the validity through contempt proceedings. Requiring the
choice between compliance with the subpoena and the possibility
of contempt preserves the interest in expeditious grand jury
proceedings.

[Wje have consistently held that the necessity for expedition in the
administration of the criminal law justifies putting one who seeks
to resist the production of desired information to a choice between
compliance with a trial court's order to produce prior to any review
of that order, and resistance to that order with the concomitant
possibility of an adjudication of contempt if his claims are rejected
on appeal. Further, the approach facilitates development of an

2
 adequate factual record in support of the reasons supporting
resistance to the subpoena.

td., 943 A.2d 929, 934 - 935(Pa. 2007)(internal quotation marks and citations omitted). By filing

this Emergency Application rather than a motion to quash, Special Agent Peifer is trying to

bypass these concerns, and get directly in front of the Pennsylvania Supreme Court without

following the proper procedure, and arguably without the proper standing.

By way of a brief background, on May 29, 2014, I, as Supervising Judge of the

Thirty-Fifth Statewide Investigating Grand Jury, found that there were "reasonable grounds to

believe a further more substantive investigation" into allegations that statewide Grand Jury

secrecy may have been compromised was warranted, and on that date I appointed Special

Prosecutor Carluccio. The May 29, 2014 Order followed an in camera proceeding which

established that there was a leak of secret Grand Jury information and that the leak most likely

came from the Office of the Attorney General. Accordingly, I determined that the appointment of

a Special Prosecutor was necessary and appropriate.

Special Agent Peifer was served with a subpoena to appear and testify on

January 12, 2015, before the Thirty-Fifth Statewide Grand Jury. On January 6, 2015, Special

Agent Peifer filed the Emergency Application currently before the Pennsylvania Supreme Court.

ISSUES

I. Whether Special Agent Peifer lacks standing to bring this action.

II. Whether Special Agent Peifer has waived an opposition to the appointment of Special
Prosecutor Carluccio.

III. Whether the appointment of Special Prosecutor Carluccio was proper.

IV. Whether an unjust result will occur if the requested relief is granted.

3
 DISCUSSION

Special Agent Peifer lacks standing to bring this action.

Special Agent Peifer was subpoenaed to testify before the Thirty-Fifth Statewide

Investigating Granci Jury, and claims that by virtue of this subpoena he has standing to

challenge the legality of the office of Special Prosecutor, relying on Gwinn \( Kane, 339 A.20

838(Pa.Cmwith. 1975).

Generally, a quo warranto action can only be instituted by the Attorney General

or by the local district attorney. A private person will have standing to bring a quo warranto

action only if that person has a special right or interest in the matter, as distinguished from the

right or interest of the public generally, or if the private person has been specially damaged.

Spykerman v. Levy, 491 Pa. 470, 485-86, 421 A.2d 641, 649 (1980).

In Gwinn v. Kane, the Pennsylvania Commonwealth Court concluded that a

plaintiff, who had been indicted by a special prosecutor the Attorney General appointed to

investigate bribery and corruption in the awarding of public contracts, had standing to bring a

quo warranto action to challenge the appointment. The same concerns or "special right or

interest" is not present in this case, where Special Agent Peifer has merely been called to testify

as a witness before the Grand Jury.

If all subpoenaed witnesses who did not want to testify before the grand jury

could file a quo warranto action with the Pennsylvania Supreme Court rather than a motion to

quash with the Statewide Supervising Grand Jury Judge if he or she believed it would result in

an unfavorable ruling, then all those similarly situated could make an end run around the

process and procedure set forth by the Pennsylvania Supreme Court in In re Dauphin County

Fourth Investigating Grand Jury, 596 Pa. 378, 943 A.2d 929(Pa. 2007).

4
 11. Special Agent Peifer has waived an opposition to the appointment of Special Prosecutor
Carluccio.

Even if Special Agent Peifer has standing to bring this acti9n, then his challenge

to Special Prosecutor Carluccio's appointment is waived. Special Agent Peifer was previously

subpoenaed and honored that subpoena and appeared before the Thirty-Fifth Statewide Grand

Jury on October 24, 2014 in response to a subpoena issued by Special Prosecutor Carluccio.

An emergency simply does not exist, and his current challenge is waived.

III. The appointment of Special Prosecutor Carluccio was proper.

My authority for the appointment of a special prosecutor was based upon the

case of In re Dauphin County Fourth Investigating Grand Jury, 610 Pa. 296, 19 A.3d 491

(2014). This case dealt with the appointment of an special prosecutor in connection with alleged

grand jury leaks, and the Court stated that, "[w]hen there are colorable allegations or indications

that the sanctity of the grand jury process has been breached and those allegations warrant

investigation, the appointment of a special prosecutor to conduct such an investigation is

appropriate. And, even where the investigations of special prosecutors do not lead to

prosecutable breaches of secrecy, they may provide insight into the often-competing values at

stake, as well as guidance and context so that prosecutors and supervising judges conducting

future proceedings may learn from the examples." Id. at 504.

The Court explained the vital role a supervising judge in regard to the grand jury

process and emphasized the "[t]he very power of the grand jury, and the secrecy in which it

operates, call for a strong judicial hand in supervising the proceedings" Id. at 503. The Court

further explained as follows:

We are cognizant that the substantial powers exercised by
investigating grand juries, as well as the secrecy in which the
proceedings are conducted, yield[]the potential for abuses. The
safeguards against such abuses are reflected in the statutory
scheme of regulation, which recognizes the essential role of the
judiciary in supervising grand jury functions.

5
 Id. at 503 — 504 (citing from In re Twenty-Fourth Statewide Investigating Grand Jury, 589 Pa.

89, 907 A.2d 505, 512(2006).

Thus, Pennsylvania's grand jury process is 'strictly regulated, and
the supervising judge has the singular role in maintaining the
confidentiality of grand jury proceedings. The supervising judge
has the continuing responsibility to oversee grand jury
proceedings, a responsibility which includes insuring the solemn
oath of secrecy is observed by all participants.

Id. at 504 (citations and internal quotation marks omitted).

The In re Dauphin County Court cited two cases that involved the appointment of

a special prosecutor when there were allegations of grand jury leaks. The Court first cited to

Lackawanna Common Pleas Court case, In re County Investigating Grand Jury VIII (Lack. Com.

Pl. 2005).

In that case there were allegations made, including, that e-mail communications

had been exchanged between the Lackawanna District Attorney's Office and a newspaper

reporter that divulged grand jury information, that a grand jury witness had been contacted by

thp reporter a short time after the witness appeared before the grand jury and was questioned

about private matters that had been disclosed only to the grand jury. In re Dauphin County, 19

A.30 at 504. A preliminary review by the common pleas court judge verified only the existence

pf the ernails that werp exchanged between the reporter and a member of the District Attorney's

office during the time the grand jury was conducting the relevant investigation. It was based

upon this review that the common pleas court judge appointed a special prosecutor to

investigate the allegations of a grand jury leak. Id.

The Pennsylvania Supreme Court in In re Dauphin County cited an additional

example involving a special prosecutor in connection with alleged grand jury leaks and the

complex interest and values irnplicated in an appointment of an special prosecutor. The Court

cited to Castellani v. Scranton Times, 598 Pa. 283, 956 A.2d 937(2008). In Castellani, the

supervising judge appointed a special prosecutor to investigate allegations of grand jury leaks in

6
 connection with a statewide investigating grand jury tasked with investigating allegations of

abuse of the county prisoners by the prison guards. In re Dauphin County, 19 A.3d at 506.

Not only is there strong precedent that permits a supervising judge to appoint a

special prosecutor when there are allegations of grand jury leaks; but also, at the time I

appointed the Special Prosecutor on May 29, 2014, by way of a court order, which was

delivered to Chief Justice Ronald D. Castille, I wrote a letter to Chief Justice Oastille. In that

letter, I explained what I had done and I ended the letter with the following language, "Please

advise if you feel that I am in error or have exceeded my authority as the Supervising Grand

Jury Judge." See, Exhibit "A", Letter dated May 29, 2014 to Chief Justice Castille. All of my

letters to Chief Justice Castille have concluded with similar language. I have never been

informed that I erred or exceeded my authority.

Additionally, Special Agent Peifer argues in his Emergency Motion that "Where

was no necessity for the appointment of a special prosecutor in this matter, since, according to

publicly known facts several county District Attorneys had jurisdiction to investigate any 'leak by

the OAG and prosecute any crime found to have been committed.'' See, Emergency Application

for Extraordinary Relief 1/6/15 p. 8 1119. Special Agent Peifer is only correct to the extent that

under the Grand Jury Act, Section 4551(d), 42 Pa.C.S.A, provides that ''[ijn any case where a

multicounty investigating grand jury returns a presentment the supervising judge shall select the

county for conducting the trial from among those counties having jurisdiction." 42 Pa.C.S. §

4551(d). However, at the time of the appointment of Special Prosecutor Carluccio there was no

clear indication which county might ultimately have jurisdiction to prosecute criminal charges. It

wasn't even known whether an investigation into the leak would have resulted in criminal

charges. It could have resulted in a finding of conternpt. Asking a county District Attorney to use

the resources of their office to investigate a matter for which they might never have jurisdiction

is simply not appropriate.

7
 The Supervising Judge of a Statewide Investigating Grand Jury must have the

inherent authority to appoint a special prosecutor when appropriate. The Supervising Judge of a

Statewide Investigating Grand Jury must have the inherent authority to use the resources of that

Grand Jury to investigate breaches of grand jury secrecy, Without the inherent authority of the

Supervising Judge to appoint a special prosecutor and use the resources of the grand jury,

leaks of secret grand jury materials by members of the OAG would not be properly and timely

addressed. Finally, without this authority the Supervising Judge would be severely hampered in

carrying out the duties of the position.

IV. An unjust result will occur if the requested relief is granted.

Finally, if relief were to be granted, the result would be unjust. The maximum

term of the Thirty-Fifth Statewide Investigating Grand Jury expires on January 16, 2015.

Granting the requested relief would forever prevent the Thirty-Fifth Statewide Investigating

Grand Jury from ever hearing the testimony of Special Agent Peifer. That would be unjust. This

Grand Jury has heard the testimony of all of the other relevant witnesses in this matter. Asking

Special Agent Peifer to tell the truth before the Thirty-Fifth Statewide Investigating Grand Jury is

not prejudicial to him and does not merit Extraordinary Relief. Rather, it allows the Thirty-Fifth

Statewide Investigating Grand Jury to finish its work regarding the allegation of the leak of

secret Grand Jury information. A law enforcement officer such as a Special Agent should honor

a subpoena and should tell the truth.

8
 CONCLUSION

I respectfully submit that this Emergency Application for Extraordinary Relief be

denied.

BY THE COURT:

WILLIAM R. CARPENTER J.
SUPERVISING JUDGE OF THE THIRTY-
FIFTH STATEWIDE INVESTIGATING
GRAND JURY

9
EXHIBIT "A"
"A"
 PRESIDENT JUDGE
PRESIDENT JUDGE COURT OF
COURT OF COMMON PLEAS
COMMON PLEAS
WILLIAM J. J. FUR/3ER, JR.
FURSER, JR.
JUDGES
ASSOCIATE JUDGES
JUDGES •
SENIOR JUDGES
JOSEPH A. A. SMYTH
SMYTH
WILLIAM T.
WILLIAM T. NICHOLAS
STANLEY R.
STANLEY OTT
R. OTT S. GERALD CORSO
S. CORSO
BERNARD A.
BERNARD A. MOORE
CALVIN S. DRAYER.
CALVIN S. DRAYER, JR.
JR.
WILLIAM R. R. CARPENTER
CARPENTER
H. ALBRIGHT
KENT H. ALBRIGHT
RHONDA LEE LEE DANIELE
DANIELE ARTHUR R.R. TILSON
EMANUEL A.
SMANUEL A. BERTIN MONTGOMERY
MONTGO MERY COUNTY
COUNTY
THOMAS M.
THOMAS M. DELRICCI
DELRICCI THIRTY-EIGHTH
THIRTY-EIG JUDICIAL DISTRICT
HTH JUDICIAL DISTRICT
R. STEPHEN BARRETT
R.
THOMAS C.
THOMAS C. BRANCA NORRISTOWN,
NORRIS PENNSYLVANIA
TOWN, PENNSY LVANIA
STEVEN T.
STEVEN O'NEILL
T. O'NEILL 19404
19404
THOMAS P.
THOMAS P. ROGERS
ROGERS
GARRETT D.
GARRETT D. PAGE
PAGE
KELLY
KELLY C. WALL
, C. WALL
CAR LUCCIO
CAROLYN TORNETTA CARLUCCIO
WENDY DEMCHICK-A
DEMCHICKALLOY LLOY V!,
PATRICIA E. E. COONAHAN
LOIS EISNER
LOIS EISNER MURPHY
GARY
GARY
, S. SILOW
S.• SILOW
RICHARD P. HAAZ
P. HAAZ
CHERYL L.
crIgRyt. L. AUSTIN
GA IL A.
GAIL A. WEILHEIMER
STEVEN C.
STEVEN C. TOLLIVER,
TOLLIVER, SR.
SR.

May 29,
29, 2014

The Honorable Ronald D. D. Castille
Chief Justice
ChiefJusti ce ofPennsylvan
Pennsylvania ia
Supreme Court of of Pennsylvan
Pennsylvania ia
1818 Market Street, Suite 3
Street, Suite 3730
730
Philadelphi
Philadelphia,
a, PA 19103
19103

Re: Statewide Investigati
Re: Investigating
ng Grand Juries

Dear Chief Justice:
Justice:

Enclosed you will find an Order appointing a Special
Enclosed Special Prosecutor to
to investigate an allegation that
secret Grand Jury informatio
secret informationn from a prior Grand Jury was
was released by someone inin the Attorney General's
General's
Office.
Office.

current supervisin
As the current supervisingg Grand Jury Judge,
Judge, this
this matter was
was brought
brought to my attention.
attention. My
preliminary
preliminary review included in camera sealed testimony
testimony from two
two individuals with knowledge
knowledge..

II have decided that the matter is important
important enough toto appoint a Special Prosecutor
Prosecutor,, Thomas
Thomas E.
E.
Carluccio, Esquire.
Carluccio, Esquire. He is a former prosecutor,
prosecutor, served in the Departmen of the Attorney General
Departmentt of General in
Delaware forfor fourteen
fourteen years and a Special
Special Assistant United States
States Attorney.
Attorney. In addition Tom has
has done
Grand Jury work,
work, and is capable and reliable.
honest, capable
is honest, reliable.

Please call me if you would like to discuss this further.
this matter further.

if you feel that Ilam
Please advise if am in error or have exceeded my authority as the Supervisin
Supervisingg Grand
Jury Judge.
Judge.

Sincerel

u
1.)
William R. Carpenter, J.
R. Carpenter, J.
Supervisingg Judge
Supervisin

W RC/cns
WRC/cns
Cc.
Cc. Thomas E. Carluccio, Esquire
E. Carluccio,
 IN THE SUPREME
IN COURT OF
SUPREME COURT OF PENNSYLVANIA
MIDDLE
MIDDLE DISTRICT

RE:
IN RE: :: SUPREME COURT OF
SUPREME COURT OF PENNSYLVANIA
2015
NO. 11 MM 2015
:: NO.
STATEWIDE
THIRTY -FIFTH STATEWIDE
THE THIRTY-FIFTH
PLEAS
COMMON PLEAS
:: MONTGOMERY COUNTY CQMMON
INVESTIGATING GRAND JURY
INVESTIGATING 2644 -2012
M.D. 2644-2012
:: M.D.

OF SERVICE
CERTIFICATE OF

I,I, William R. Supervising Judge of the 35th
Carpenter, Supervising
R. Carpenter, Investigating Grand Jury,
35`h Statewide Investigating Jury, certify
correct copy of the attached Opinion of January 9,
that a true and correct 2015 was
9, 2015 forwarded to the persons set
was forwarded set
forth below via First Class
Class Mail
Mail on January 9, 2015.
9, 2015.

WILLIAM R. CARPENTE ,
R. CARPENTE•, J.
J.
Judge
Supervising Judge
of Common Pleas
Montgomery County Court of
P.O. Box 311
P.O. 311
Norristown, PA 19404
Norristown, 19404

Prothonotary Irene Bi4zoso
Prolhonotary Bizzoso
Court of Pennsylvania
Supreme Court
Supreme
Judicial Center
Pennsylvania Judicial
601
601 Commonwealth Avenue
4500
Suite 4500
62575
P.O. Box 62575
P.O.
17106
Harrisburg, PA 17106
Harrisburg,

Christopher P. Caputo, Esquire
P. Caputo,
730 Main
730 Main Street
18507
Moosic, PA 18507
Moosic,

Thomas E.
Thomas Carluccio, Esquire
E. Carluccio,
Special Prosecutor
Special
1000 Germantown Pike
1000
D3
Suite D3
Meeting, PA
Plymouth Meeting, 19462
PA 19462
 SEALED

UNSEALED PER
IN THE SUPREME COURT OF PENNSYLVANIA
ORDER OF THE
MIDDLE DISTRICT COURT DATED
AUGUST 26, 2015
IN RE: SPECIAL PROSECUTOR, : No. 1 MM 2015
THIRTY-FIFTH STATEWIDE :
INVESTIGATING GRAND JURY :
:
:
:

ORDER

PER CURIAM
AND NOW, this 9th day of January, 2015, to the extent the Application for Stay

seeks to stay enforcement of the subpoena issued to Petitioner by the Thirty-Fifth

Statewide Investigating Grand Jury, it is GRANTED pending disposition of the

Application for Extraordinary Relief.
 GOO
UNSEALED PER Filed in Somme
ORDER OF THE
JAN 9 2015
COURT DATED
AUGUST 26, 2015 kaiddlb
FILED UNDER SEAL

IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY, PA
SUPREME COURT OF PENNSYLVANIA
IN RE:
NO. 1 MM 2015

THE THIRTY-FIFTH STATEWIDE MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY M.D. 2644-2012

ANSWER OF SPECIAL PROSECUTOR
TO THE EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF
OF DAVID PEIFER

Thomas E. Carluccio, Special Prosecutor to the Investigatory Grand Jury hereby answers

the Emergency Applicationfor Extraordinary Relieffiled by David Peifer, and states in support

thereof as follows:

1. Admitted in part and Denied in part. It is admitted that the legal citations provided

relate to the subject matter for which they assigned within this pleading. However, any assertion

that such legal citations that together or separately dispositive to the underlying issues: (i) that

the Supervising Judge of the Thirty-Fifth Statewide Investigating Grand Jury maintains the

requisite legal authority to convene an investigation into allegations that statewide grand jury

secrecy might have been compromised; (ii) that such legal authority was unconstitutional

because it violated the separation of powers inherent in the Pennsylvania Constitution; and/or

(iii) that the Supervising Judge did not maintain the requisite legal authority to appoint a Special

Prosecutor — are all denied. To the contrary THE INVESTIGATING GRAND JURY ACT, and

specifically 42 Pa.C.S. §4548(a) and § 4542 thereunder have both been appropriately met, as
Page: I
Received in Supreme Court

JAN 9 2015

Middle
reflected in formal records and pleadings before this Honorable Court, and both the said Act and

such documentation are conclusive to establishing that the Supervising Judge maintains legal

authority to convene and oversee the subject Thirty-Fifth Statewide Investigating Grand Jury,

and to appoint a Special Prosecutor thereto.

2. —21.(inclusive). Denied. The facts and events are denied as characterized by Peifer in

the underlying Application. By way of further answer, David Peifer has voluntarily submitted

himself to the jurisdiction of this Honorable Court through his physical attendance before the

Grand Jury under subpoena on 10/24/14 prior to the filing of the underlying Application where

such appearance was not occasioned by the communication of a reservation of rights challenging

the authority of the Supervising Judge, nor the appointment of a Special Prosecutor — and as such

has effectively waived the right to pursue an argument challenging the legal authority of the

Supervising Judge to empanel and supervise a statewide investigating grand jury in this matter

and appointing a Special Prosecutor thereto.

WHEREFORE,the Emergency Applicationfor Extraordinary Relieffiled by David Peifer

should be denied, under law and for events which effectively render such arguments should be

denied and/or deemed waived.

Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484)674-2899
Special Prosecutor of Investigating Grand Jury No. #35

DATED:
Page: 2
 VERIFICATION
I, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35

appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into

the operative events underlying the subject matter of the Emergency Application for Extraordinary

Relieffiled of record with the Court by David Peifer, I hereby represent that the averments set forth in

the foregoing Answer to the said Application are true and correct to the best of my knowledge,

information and belief. I understand that false statements herein are made subject to the penalties of 18

Pa. C.S.A. §4904 relating to unsworn falsification to authorities.

Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484)674-2899
Special Prosecutor of Investigating Grand Jury No. #35
 0110011e GOO
Fileo
JAN 9 2.015
UNSEALED PER
ORDER OF THE INAIddib
COURT DATED FILED UNDER SEAL
AUGUST 26, 2015

IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA
SUPREME COURT OF PENNSYLVANIA
IN RE:
NO. 1 MM 2015
THE THIRTY-FIFTH STATEWIDE ; MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY : M.D. 2644-2012

ANSWER OF SPECIAL PROSECUTOR
TO THE EMERGENCY APPLICATION
FOR LEAVE TO FILE ORIGINAL PROCESS
OF DAVID PEIFER

Thomas E. Carluccio, Special Prosecutor("Respondent")to the Investigatory Grand Jury

hereby answers the Emergency Applicationfor Leave to File Original Process filed by David

Peifer("Applicant"), and states in support thereof as follows:

1. to 4. (inclusive) Admitted in part and Denied in part. It is admitted that the legal

citations provided relate to the subject matter for which they assigned within this pleading.

However, any assertion that such legal citations taken, together or separately, are dispositive to

the underlying rights and standing ofthe Applicant to file this pleading is denied.

WHEREFORE, the Emergency Application for Leave to File Original Process filed by

David Peifer should be denied.

Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484)674-2899

DATED: AA Special Prosecutor of Investigating Grand Jury No. #35

Page: I

Received in Supreme court

JAN 9 2015
Middle
 VERIFICATION
I, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35

appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into

the operative events underlying the subject matter of the Emergency Application for Leave to File

Original Process filed of record with the Court by David Peifer, 1 hereby represent that the averments

set forth in the foregoing Answer to the said Application are true and correct to the best of my knowledge,

information and belief. I understand that false statements herein are made subject to the penalties of 18

Pa. C.S.A. §4904 relating to unsworn falsification to authorities.

Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484)674-2899
Special Prosecutor of Investigating Grand Jury No. #35
 ouplo (t
UNSEALED PER
ORDER OF THE JAN 9 2015
COURT DATED
AUGUST 26, 2015 Mid&
FILED UNDER SEAL

IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA

SUPREME COURT OF PENNSYLVANIA
IN RE:
NO. 1 MM 2015

THE THIRTY-FIFTH STATEWIDE ; MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY : M.D. 2644-2012

ANSWER OF SPECIAL PROSECUTOR
TO THE EMERGENCY APPLICATION
FOR STAY OF GRAND JURY PROCEEDINGS
OF DAVID PEIFER

Thomas E. Carluccio, Special Prosecutor(-Respondent") to the Investigatory Grand Jury

hereby answers the Emergency Applicationfor Stay ofGrand Jury Proceedings filed by David

Peifer("ApplicanC), and states in support thereof as follows:

1. Admitted.

2. Admitted.

3, Denied. Respondent lacks sufficient knowledge or information to form a belief as to

the truth of the allegations of this Paragraph, and therefore deny the same.

4. Denied. It is denied that the appointment of a Special Prosecutor in this matter was

done without legal authority. To the contrary such appointment was made consistent with THE

INVESTIGATING GRAND JURY ACT, and consistent with the plenary supervisory authority afforded

under law and granted to the subject Supervising Judge, as occurred here, who undertook the

appointment of the Special Prosecutor in the underlying matter. As such, it is denied the

Page: 1

Received in Supreme Court

JAN 9 2015

iddle
Applicant has presented a meritorious Application.

5. Denied. Respondent lacks sufficient knowledge or information to form a belief as to

the truth of the allegations of this Paragraph, and therefore deny the same. By way of further

answer, the Respondent is not aware of any injury or damage that would be caused Applicant in

testifying before the Thirty-Fifth Investigating Grand Jury under the subpoenas issued him.

6. Denied. It is denied the this Honorable Court's determination on the legality of the

appointment the Special Prosecutor is a matter of immediate concern and of substantial public

interest. To the contrary the appointment of the Special Prosecutor should not be at issue

warranting immediate review.

WHEREFORE,the Emergency Application for Stay of Grand Jury Proceedings filed by

David Peifer should be denied.

Li.•••••
'

Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484)674-2899
Special Prosecutor of Investigating Grand Jury No. #35

DATED:

Page: 2
 VERIFICATION
I, Thomas E. Carluccio, Esq. as Special Prosecutor to the Investigating Grand Jury No #35

appointed by the Pennsylvania Supreme Court, hereby state that after due diligence and investigation into

the operative events underlying the subject matter of the Emergency Application for Stay of Grand

Jury Proceedings filed of record with the Court by David Peifer, I hereby represent that the averments

set forth in the foregoing Answer to the said Application are true and correct to the best of my knowledge,

information and belief. I understand that false statements herein are made subject to the penalties of 18

Pa. C.S.A. §4904 relating to unsworn falsification to authorities.

Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484)674-2899
Special Prosecutor of Investigating Grand Jury No. #35
 UNSEALED PER
Filea in 6utmeme Gourt
ORDER OF THE JAN 9 2015
COURT DATED
AUGUST 26, 2015 Middle
FILED UNDER SEAL

IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA

SUPREME COURT OF PENNSYLVANIA
IN RE:
NO. 1 MM 2015

THE THIRTY-FIFTH STATEWIDE ; MONTGOMERY COUNTY COMMON PLEAS
INVESTIGATING GRAND JURY : M.D. 2644-2012

MEMORANDUM OF LAW IN SUPPORT OF
ANSWERS OF SPECIAL PROSECUTOR TO THE
FOLLOWING FILINGS OF RECORD OF DAVID PEIFER:

1. THE EMERGENCY APPLICATION FOR EXTRAORDINARY RELIEF
2. THE EMERGENCY APPLICATION FOR STAY OF GRAND JURY PROCEEDINGS
3. THE EMERGENCY APPLICATION FOR LEAVE TO FILE ORIGINAL PROCESS

Thomas E. Carluccio, Special Prosecutor to the Investigatory Grand Jury hereby submits

this Memorandum of Law in support of his answers to three (3) pleadings of filed by David

Peifer, being: (i) the Emergency Application for Extraordinary Relief; (ii) the Emergency

Application for Stay of Grand Jury Proceedings; and (iii) the Emergency Application for Leave

to File Original Process (collectively hereinafter sometimes referenced, the "Claims").

I. BACKGROUND

In response to a subpoena, David Peifer initially testified before the Thirty-Fifth
•

Investigating Grand Jury on 10/24/14, with no communicated reservations of rights.

Notwithstanding his prior conduct in testifying, Peifer has filed of record the three (3)

aforementioned pleadings, all of which are designed to avoid his further testimony under

Page: 1

Received in Supreme Court

JAN 9 2015

iddie
subpoena scheduled on 1/12/15. In seeking to avoid testifying Peifer has adopted a tact of

challenging the subpoena requiring his 1/12/15 testimony, the legal authority of the Supervising

Judge of the Thirty-Fifth Statewide Investigating Grand Jury to empanel and supervise the

Thirty-Fifth Investigating Grand Jury, to appoint a Special Prosecutor thereto, and to seek this

Honorable Court's imtnediate review.

Supervising Judge, William R. Carpenter, has issued his Opinion of record with this

Court on 1/9/15.

Thomas E. Carluccio, Esq., as appointed Special Prosecutor has timely filed his Answers to

the three Applications, and presents this Legal Memorandum in support thereof.

II. ARGUMENT

A. Peifer lacks standina to bring a Quo Warranto Action as expressed or implied in his
Claims.

In the interest of judicial economy, the Special Prosecutor adopts in full the discussion

and legal analysis set forth in Supervising Judge Carpenter's Opinion as dispositive on the issues

raised by Peifer in his Claims.

The case law cited by Supervising Judge Carpenter is acknowledged to be prevailing law,

and provides that an individual does not possess proper standing to undertake a Quo Warranto

Action unless they distinguish themselves to maintain a special right or interest from that of the

general public. Here, Peifer fails to distinguish himself as required. His only "damage or

special interesr is an interest to avoid testifying before an investigating grand jury, where to do

so has not been shown to be overzealously sought by the Special Prosecutor nor would result in

damage to Peifer.

Accordingly, is clear that Peifer has a lack of standing to pursue a Quo Warranto Action in this

Page: 2
matter.

B. Peifer has effectively waived an opposition to the appointment of the Special Prosecutor.

As stated, Peifer has already voluntarily submitted himself to the jurisdiction of this

Honorable Court and waived any claim to challenge the authority of the Special Prosecutor (and

specifically relating to the authority to issue a subpoena) by virtue of Peifer's voluntary, and

without reservation, appearance and testimony before the Thirty-Fifth Investigating Grand Jury.

The authority of a Special Prosecutor to utilize the power of a subpoena on behalf of an

investigating grand jury is clear. 42 Pa.C.S. §4542 provides authority to the Special Prosecutor

to compel the attendance of investigating witnesses, and provides in relevant part as follows:

§4542 Investigative resources of the grand jury

"The power to compel the attendance of investigating witnesses; the power to
compel the testimony of investigating witnesses under oath; the power to take
investigating testimony from witnesses who have been granted immunity; the
power to require the production of documents, records and other evidence;..."

In addressing the authority to subpoena a witness, Judge Savitt adroitly opined in his

seminal publication, Pennsylvania Grand Jurv Practice, quoted in IN RE: Special Investigating

Grand Jury ofApril 26. 1984, 37 PA. D &C 3d 516) 1986 at page 520:

"lt can be seen from a reading of these excerpts from the act that broad subpoena
power is vested in the investigating authority. The rationale is apparent. Without
such authority, how could a prosecutor effectively investigate and ferret out
crime? To follow the narrow construction that appellants desire would have a
chilling effect on any and all types of investigation. It would defeat the very
purpose of the act." Judge Savitt, Pennsylvania Grand Jury Practice, §21.04(A)(3)
at p. 92-93, §21.04(C)(3) at p. 96 (1983).

In conclusion, it is irrefutable that under the facts and events associated with the Special

Prosecutor's issuance service of a subpoena in this matter, Peifer testimony before the Thirty-

Fifth Investigating Grand Jury is to be appropriately compelled.

Page: 3
 C. The appointment of Special Prosecutor Carluccio was proper.

In short, both statutory and case law, including without limitation 42 §4544 of THE

INVESTIGATING GRAND JURY ACT are clear that upon Order of the Pennsylvania Supreme Court

to empanel a multicounty investigating grand jury, the designated Supervising Judge has the

legal authority and plenary supervising authority to appoint a Special Prosecutor. All

requirements under 42§4544, including without limitation the Application of the Attorney

General for an Order to convene a multicounty investigating grand jury, an Order of the Supreme

Court to such effect, designation of a Supervising Judge, and his/her appointment of a Special

Prosecutor are all appropriately and lawfully found in the underlying matter.

Further, there is sufficient legal precedent for a Supervising Judge to appoint a special

prosecutor and/or oversee grand jury proceedings. See In re Dauphin County Fourth

Investigating Grand Jury, 610 Pa. 296, 19 A.3d 491 (2014); In Re Twenty-Fourth Statewide

Investigating Grand Jury, 907 A.2d 505 (Pa. 2006); In re June 1979 Allegheny County

Investigating Grand Jury, 415 A.2d 73, 78 (Pa. 1980). Castellani v. The Scranton Times, 956

A.2d 937(PA. 2008).

Again, Supervising Judge Carpenter's legal analysis, in addition to the above, is adopted

here as though more fully set forth herein.

In view of the foregoing, there was no improprieties in both the authority of Supervising

Judge Carpenter, and in his subsequent appointment of Special Prosecutor Carluccio which

warrant a review of the concern, and to quash the subpoena served upon Peifer. As such, his

testimony should proceed without further incident.

Page:4
 D. There is no_uniust result to Peifer should his Claims be denied.

As stated in the answers to the Claims of Special Prosecutor Carluccio, the only real issue

confronting Peifer is a subpoena for his appearance to testify before the Thirty-Fifth

Investigating Grand Jury. Contrary to his assertions, there are no immediate concerns nor

substantial public interests that compel an emergency review of the appointment of the Special

Prosecutor, nor into the subpoena itself. Further, as stated, Peifer has articulated no damages to

him personally in honoring the subpoena and offering testimony. As such, his testimony should

proceed without further incident.

III. CONCLUSION

For the foregoing reasons, and under both the statutory and case law authority referenced in

Supervising Judge Carpenter's Opinion dated 1/9/2015, together with that offered herein, and due to

Peifer's prior submission to the jurisdiction of this Honorable Court and acceptance of the authority of the

Special Prosecutor by virtue of a prior appearance before the same Thirty-Fifth Investigating Grand Jury

under a similar subpoenas as that addressed in the Claims— accordingly the Application should be denied

and/or deemed waived.

Thomas E. Carluccio, Esquire
Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting,PA 19464-2484
(484)674-2899
Special Prosecutor of Investigating Grand Jury No. #35

DATED:

Page:5
 IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY,PA
SUPREME COURT OF PENNSYLVANIA
IN RE: NO. 1 MM 2015

THE THIRTY-FIFTH STATEWIDE
INVESTIGATING GRAND JURY
MONTGOMERY COUNTY COMMON PLEAS
M.D. 2644-2012

CERTIFICATE OF SERVICE

Thomas E. Carluccio, Esquire do hereby certify that a true and correct copy ofthe following:

1. Answer of Special Prosecutor to Emergency Application for Extraordinary Relief;

2. Answer of Special Prosecutor to the Emergency Application for Stay of Grand Jury Proceedings;

3. Answer of Special Prosecutor to the Emergency Application for Leave to File Original Process; and

4. Memorandum of Law in Support of the Answers of the Special Prosecutor to the aforementioned
pleadings

all in response to the previous filings of David Peifer has been filed of record with the Pennsylvania Supreme Court on

the 9th day of January, 2015, and copies of the filed pleadings have been directed on the 9th day of January, 2015 by

first class U.S. Mail, postage prepaid, to all parties in interest, as follows:

Christopher P. Caputo, Esq. The Hon. William R. Carpenter
730 Main Street Court of Common Pleas of Montgomery County
Moosic, PA 18507 P.O. Box 311
Norristown, PA 19404-0311

T omaS Carluccio, Esquire
6
‘,/L- --

Attorney I.D. No. # 81858
Plymouth Greene Office Campus
1000 Germantown Pike, Suite D-3
Plymouth Meeting, PA 19464-2484
(484)674-2899
Special Prosecutor of Investigating Grand Jury No. #35
 FILED
1/13/2015
Supreme Court
Middle District
SEALED

UNSEALED PER
IN THE SUPREME COURT OF PENNSYLVANIA ORDER OF THE
MIDDLE DISTRICT COURT DATED
AUGUST 26, 2015

IN RE: SPECIAL PROSECUTOR, No. 1 MM 2015
THIRTY-FIFTH STATEWIDE
INVESTIGATING GRAND JURY

APPLICATION FOR LEAVE TO FILE RESPONSE

AND NOW, this 13th day of January, 2015, comes David Peifer, by counsel.

Christopher P. Caputo, Esquire, and presents the following:

1. The Honorable Judge Carpenter, and Specially Appointed Prosecutor

Thomas Carluccio have filed Memorandum and Opinion respectively

supplementing the Special Prosecutor's Answer to David Peifer's claim for

quo warranto, the Opinion and ;Memorandum raise a New Matter regarding

whether Judge Carpenter proceeded under the authority and Order of the

Supreme Court, as the Order Appointing Special Prosecutor predated any

contact with the Supreme CoOrt on the matter, and the Supreme Court

provided no Authority and or Order prior to the Appointment of the Special

Prosecutor Mr. Carluccio. (See Exhibit "A" — letter of Honorable Judge

Carpenter to Supreme Court).

2. The Honorable Court's Opinioni and the Special Prosecutor's Memorandum

aver and allege that the authority to appoint a Special Prosecutor is found in

42 Pa. C.S.A. 4544, the Grand Jury Act, as well as in re: Dauphin County

Fourth Investigative Grand Jury, 19 A.3d 491 (2014). 42 Pa. C.S.A. 4544

speaks specifically to empaneling and applying for the empanelment of the

RECEIVED
1/13/2015
Supreme Court
Middle District
 SEALED

Grand Jury, it offers no guidance, and it is silent as to the appointment of a

Special Prosecutor. In re: Dauphin County Fourth Investigative Grand Jury,

likewise offers no guidance relative to the statutory authority, or authority of a

sitting Judge to appoint a special prosecutor, such act superseding the

authority of the District Attorney of the County in which the criminal act was

alleged to have occurred.

3. David Peifer has standing to bring his claim for relief under quo warranto, as

he has sustained specific and real damages pursuant to the Special

Prosecutors threat, intimidationj and accusations that he committed perjury,

and was the leak of grand jury information to the public.

4. This matter is of significant ; importance to the public as it involves

constitutional concepts as to the,rights of the public, the authority of the court,

and the issues of separation of powers and checks and balances. In the

absence of allowing review of David Peifer's response this Honorable Court

will not have the opportunity to review facts which would be significant in

assisting them in coming to a just conclusion of the matter.

WHEREFORE, based on the above it is requested that the Supreme Court grant

this Leave to file a response and consider same in determining the outcome of David

Peifers claim for quo warranto.
SEALED

Respectfully submitted,

CAPUTO & MARIOTTI, P.C.

alte)P
Christopher P. Caputo, Esquir
Atty. ID 73446
730 Main Street
Moosic, PA 18507
(570) 342-9999
EXHIBIT A
 PRESIDENT JUDGE COURT OF COMMON PLEAS
WILLIAM J. funlits. Jo.
A 8*OCIATIC JUDGES
SIC041011 JUINSCS
JOSEPH A. So y'rpi
WILLTAN T. MICNOLAIE
STARLET R. OTT
R. OERALD Coss*
BERNARD A. MOORE
CALVIN IV ORAYeR. JR.
WILLIAM R. CARPENTER
Kam's' N. Atentoscr
RHONDA LEE OANIELE
ARTHUR R. TR-soto
EMANUEL A. RERTIN MONTGOMERY COUNTY
THONAS M. Din.Riccf THIRTy•EsoriEN JUDICIAL DisTinocT
R. STEPNICH BAMTT
TROmAs C. BRANCA
NORRISTOWN„PEN.NSYLVANIA
STEVEN T. O'NEILL 1E1404
THOMAS P. Rooters
GARRETT D. PARE
KELLY C. WALL
C•ROLYN TORNETTA CARLUCCI*
WENDT DEmICHICE.ALLOT
PATRICIA E. COON...NAN
Lois Emmen NualipTIT
GARY S. SsLow
RICHARD P. MA Az
CNERTL L. AusTiN
GAM A. WEILHEIMER
STEVEN C. TOLLIVER, SR.

May 29, 2014

The Honorable Ronald D. Castille
Chief Justice of Pennsylvania
Supreme Court of Pennsylvania
1818 Market Street, Suite 3730
Philadelphia, PA 19103

Re: Statewide Investigating Grand Juries

Dear Chief Justice:

Enclosed you will find an Order appointing a Special Prosecutor to investigate an allegation that
secret Grand Jury information from a prior Grand Jury iis released by someone in the Attorney General's
Office.

As the current supervising Grand Jury Judge, this matter was brought to my attention. My
preliminary review included in camera sealed testimony from two individuals with knowledge.

I have decided that the matter is important enough to appoint a Special Prosecutor, Thomas E.
Carluccio, Esquire. He is a former prosecutor, served in the Departrnent ofthe Attorney General
in
Delaware for fourteen years and a Special Assistant Unitett States Attorney. In addition Tom has
done
Grand Jury work, and is honest, capable and reliable.

Please call me if you would like to discuss this matter further.

Please advise if you feel that I am in error or havecameeded my authority as the Supervisi
ng Grand
Jury Judge.

Since-v:0
4R

William R. Carpenter, J.
Supervising Judge

WRC/cns
Cc. Thomas E. Carluccio, Esquire
 SEALED

CERTIFICATE OF SERVICE

Pursuant to Pa.R.App.P.121 and 122 the,undersigned certifies that a true and correct

copy of the foregoing document was served upon the individual listed below on the date

indicated by electronic transmission and fist class United States Mail:

Thomas E. Carluccio, Esq.
Special Prosecutor
1000 Germantown Pike, Suite D3
Plymouth Meeting, PA 19462
E-mail: mailtO:tomc3@comcast.net

Honorable Mliam R. Carpenter
Montgomery County Courthouse
2 East Airy Street
P.O. Box 311;
Norristown, PA 19404-0311
E-mail: cserafinmontcopa.orq

CAPUTO & MARIOTTI, P.C.

Date: January 13, 2015

Christopher P. Caputo, Esquire
Atty. ID 73446
730 tvlain Street
Moosic, PA 18507
(570) 342-9999
 SEALED

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT

IN RE: SPECIAL PROSECUTOR, : No. 1 MM 2015
THIRTY-FIFTH STATEWIDE
INVESTIGATING GRAND JURY

RESPONSE BY DAVID PEIFER TO MEMORANDUM OF LAW OF SPECIAL
PROSECUTOR THOMAS CARLUCCIO AND OPINION OF THE HONORABLE
JUDGE CARPENTER

Facts and History:

David Peifer Special Agent in Charge of the Office of Attorney General by and

through counsel, responds to the facts and claims made in the Memorandum of Law

filed by the Special Prosecutor Thomaš Carluccio and the Opinion filed by the

Honorable Court, Judge Carpenter, answ'pring David Peifer's claim for quo warranto

relief.

SUPERVISING JUDGE AUTHORITY

The facts of the instant matter are that some time prior to or on May 29, 2014 the

Honorable Judge Carpenter was apprised that a leak from a prior grand jury occurred.

In response thereto, he appointed a Special Prosecutor, Thomas Carluccio, to

investigate and prosecute the matter,' ultimately determined to be a leak from a 2009

grand jury presided over by Judge Riccardo Jackson, not Judge Carpenter. Judge

Carpenter was not the Supervising Judge of the Grand Jury from which the leak was

alleged to have occurred five years later. The authority cited by the Court and Special

Prosecutor speak only to the supervising Judge of the Grand Jury instituting and
 SEALED

conducting and having the authority to aPpoint a Special Prosecutor to investigate a

leak from the Grand Jury over which that Supervising Judge presides. Additionally

none of the cases cited by Judge Carpenter, or Mr. Carluccio makes statutory

reference, or any reference to a Rule, or a section of any of the codes in Pennsylvania

which provide authority for the appointment of a Special Prosecutor under

circumstances as found in the instant action.

The Honorable Court cited In Re Dauphin County Fourth Investigating Grand

Jury, 610 Pa. 296, 19 A.3d 491 (2014) and the Special Prosecutor cited In Re: Twenty-

Fourth Investigating Grand Jury, 907 A.2d 505 (Pa. 2006) In re: June 1979 Allegheny

County Investigating Grand Jury, 415 A.2d 73, 78 (Pa. 1980) and Castellani v. Scranton

Times, L.P., 956 A.2d 937 (Pa. 2008). While each of the casès cited involve an

instance where the presiding judge of a grand jury from which the leak was alleged to

have occurred appointed a Special ProsecUtor to investigate the leak, none of the cases

references any statutory authority for the appointment whatsoever. Additionally, in each

one of those cases, it was the presiding judge of the grand jury for which a leak was

alleged to have occurred that appointed the Special Prosecutor to investigate only, not

prosecute, the circumstances surrounding the alleged leak.

The cited cases provide no guidance to the Court regarding the appointment by a

Common Pleas Judge of a Special Prosecutor to investigate the alleged leak of the

grand jury which occurred under the supervision of a separate and different Judge.

Additionally none of the Orders Appointing the Special Prosecutors in those cases

provided for the overly broad, and specific powers to a Special Prosecutor to investigate

and prosecute any criminal acts that he sees fit. In the absence of a specific statute
 SEALED

providing the Honorable Court with the authority to appoint a Prosecutor with wide

ranging powers as was completed here by Judge Carpenter, this appointment is null

and void.

42 Pa. C.S.A. § 4544 has been cited as the authority under which Judge

Carpenter appointed Mr. Carluccio. This section of the Grand Jury Act speaks only to

the empaneling of a grand jury, and is silent regarding the authority to appoint a special

prosecutor therefore the reliance on 42 pa. C.S.A. 4544 is misplaced. David Peifer

specifically challenges the Appointment of a Special Prosecutor, not how the Grand

Jury was empanelled.

Mr. Carluccio's special appointment predated any Order or authority provided by

the Supreme Court to Judge Carpenter bn this matter, as is established by Judge

Carpenter's May 29, 2014 letter to JUstice Castille, as that letter categorically

establishes that Judge Carpenter simply Ordered the Appointment, and made Justice

Castille aware of it, and no other procedures were followed prior to ordering the Special

Prosecutor's Appointment to assurance that the authority of an elected District Attorney

of any appropriate County was not superseded by the appointment.

Based on the facts, the appointment as it occurred supersedes the authority of

the sitting District Attorney a point bolstered by the fact that if the newspapers are to be

believed, Mr. Carluccio has provided his presentment, and criminal charges to be

prosecuted by the District Attorney of Montgomery County. Mr. Carluccio, again if the

papers are to be believed, has sent this matter to the District Attorney of Montgomery

County to prosecute, even though the appointment by Judge Carpenter provides hirn

with the complete power to prosecute the matter on his own. Clearly he has determined
 SEALED

that for him to prosecute and pursue this matter any further would supersede the

authority of the sitting District Attorney in Montgomery County.

In conclusion relative to the authority of the supervising Judge of the Thirty-Fifth

Statewide Investigating Grand Jury to appoint Mr. Carluccio, there is no statutory

authority cited by either the Court, or the Special Prosecutor, and the case law

referenced by the Judge and the Special Prosecutor does not outline a set of
i
circumstances, or a legal premise upon w hich the appointment which occurred in this

instance is appropriate.

STANDING

While the prosecutor and Honorable Court claim the quo warranto is but a veiled

motion to quash a subpoena, the facts belie this assessment, and concurrently establish

harm to David Peifer, and therefore establish standing on his behalf. David Peifer on

three separate occasions was served with subpoena and appeared before the grand

jury on three separate occasions without filing motions to quash the subpoenas with the

Honorable Court. (See Exhibit B, C, and 0 — grand jury subpoenas issued July 2014;

September 2014; December 2014).

In fact Peifer testified twice before tti?e grand jury under oath and on the record in

July 2014 and in October 2014. The Spe4ial Prosecutor issued a third subpoena upon

Peifer, and Peifer appeared, on DecembEir 19, 2014 in Norristown, at which time the

Special Prosecutor denied him access to !the grand jury. Also on that same day the

Special Prosecutor threatened Peifer accusing him of perjury, and being the grand jury

leak. Only after this intimidation, and threat, was it apparent that Carluccio's authority to

charge David Peifer and prosecute Peifer, a thirty-seven year law enforcement veteran,
 SEALED

was detrimental to Peifer and causes Peifer specific harm. Based on the threats levied

at Peifer by Carluccio on December 19, 2014, and the authority granted Carluccio by

the Judge's Order Appointing him Special Prosecutor, Peifer has standing and has

alleged specific and particular damages and harm.

Conclusion

The Honorable Court should find ttie appointment of Mr. Carluccio null and void

and grant the relief requested in the claim for quo warranto..

Respectfully submitted,

CAPUTO & MARIOTTI, P.C.

Christopher P. Capuio, Esquire
Atty. ID 73446
730 Main Street
Moosic, PA 18507
(570) 342-9999
EXHIIBIT B
 Ina

ATIN G GRAND JURY
STATEWIDE INVESTIG
--
•-------- SUBPOENA ---
PENNSYLVANIA
:SUOREME COURT OF
TO: DAVID PEIFER 176 M.D. MISC. DKT. 2012
COMMON PLEAS
:MONTGOMERY COUNTY
:M.D. 2644-2012

ATEWIDE
ann ear as a wit nes s bef ore the PENNSYLVANIA ST
WO) ORDERED to r and Van Buren
D JU RY , 100 0 Mad iso n Avenue (corner of Troope
INVESTIGATING GR AN 'elock A.M.
n, Pen nsy lva nit i, on Tue sday, July 29, 2014, at 8:00.0
tow the Commonwealth of
Roads), Third Floor, Norris ege d violations of the laws of
evi den ce reg ard ing all
to testify and give
until excused.
Pennsylvania and to remain

D:
2. YOU are further ORDERE

will make you liable
end ma y cau se a war ran t to be issued for your arrest and
FAILURE to att
tempt of Court.
under penalty of law for con
faaam
DATED: July 18, 2014

lion. William R. Carpenter
Supervising Judge

Attorney General
any que sti ons abo ut you r appearance, contact Deputy
If you have
4.674.2899,
Thomas Carluevio, at.48
Subpoena: 1163
EXHIBIT C
 Ott

ATING GRAND JURY
STATEWIDE INVESTIG
SUBPOENA- ----
PENNSYLVANIA
:SUPREME COURT OF
TO: DAVID PE1FER :NO.!176 M.D. MISC. DK
T. 2012
COMMON PLEAS
:MONTGOMERY COUNTY
:M.D. 2644-2012

STATEWIDE
ear as a wit nes s bef ore the PENNSYLVANIA
YOU are ORDERED to app
1. Trooper and Van Buren
JU RY , 100 0 Mad ison Avenue (corner of
INVESTIGATING GR AN D at 8:00 O'clock
tow n, Pen nsy lva nia , on Mon day, September 15, 2014, of
Roads), Third Floor, Norris s of the Commonwealth
giv e evi den ce reg ard ing alleged violations of the law
A.M. to testify and
until excused.
Pennsylvania and to retnain

2. YOU are further ORDERED:

you liable
a war ran t to be iss ued for you r arrest and will make
se
FA I LURE', to attend may cau
con tem pt of Court.
under penalty of law for
fatki Æ avifie"./er
DATED: September 8, 2014

ter
Hon, William R. Carpen
Supervising Judge

ey General
ons about you r app ear anc e, contact Deputy Attorn
If you have any questi
.674.2899.
Thomas Carluccio, at 484
wi hnnena: 1374
EXHIBIT D
 RY
STATEWIDE INVESTIGATING GRAND JU
SUBPOENA

TO: David C. Peifer :SUPREME COURT OF PENNSYLVANIA
:NO. 176 M.D. MISC. DKT. 2012
AS
:MONTGOMERY COUNTY COMMON PLE
:M.D. 2644-2012

re the PENNSYLVANIA STATEWIDE
I. YOU are ORDERED to appear as a witness befo Buren
son Avenue (corner of Trooper and Van
INVESTIGATING GRAND JURY, 1000 Madi ay,
s), Thir d Floo r, Norr isto wn, Penn sylv ania ; on Monday, January 12, 2015 through Frid
Road tions of
fy:and give evidence regarding alleged viola
January 16, 2015, at 8:00 O'clock A.M. to testi
and to remain until excused.
the laws of the Commonwealth of Pennsylvania

Please report on Monday, January 12, 2015
2. YOU are further ORDERED:

liable
issued for your arrest and will make you
FAILURE to attend may cause a warrant to be
t.
under penalty of law for contempt of Cour
,a1,4leetk,
DATED: December 3, 2014

Hon. William R. Carpenter
Supervising Judge

Thomas
any ques tion s abou t your appe arance, contact Special Prosecutor
If you have
Carluccio, at 484.674.2899.

Notice: 123 Subpoena: 1624
 SEALED

UNSEALED PER
IN THE SUPREME COURT OF PENNSYLVANIA ORDER OF THE
MIDDLE DISTRICT COURT DATED
AUGUST 26, 2015

IN RE: SPECIAL PROSECUTOR, : No. 1 MM 2015
THIRTY-FIFTH STATEWIDE :
INVESTIGATING GRAND JURY :
:
:
:

ORDER

PER CURIAM
AND NOW, this 24th day of April, 2015, the Application for Leave to File Original

Process is GRANTED, and the Application for Extraordinary Relief is DENIED. See In

re Thirty-Fifth Statewide Investigating Grand Jury, ___ A.3d ___, 2015 WL 1441830

(Pa. 2015). It is further ordered that the Application for Leave to File a Response is

DISMISSED AS MOOT, and the stay entered on January 9, 2015, is DISSOLVED.