Carper

ELKINS – The judge has denied the defendant’s request to set aside the verdict in the highest medical malpractice award ever in Randolph County.

Randolph Circuit Judge John Henning issued the order Aug. 3 in response to a request that the $1.85 million verdict given to Melvin Heckel in January 2006 be tossed aside because he had tried to defraud the court by faking blindness.

Dr. Kenneth D’Amato, through attorney D.C. Offutt Jr., sought that relief in February after sending Henning a videotape apparently showing working seven days at a construction site.

D’Amato operated on Heckel’s spine in 2002 at Davis Memorial Hospital. After leaving the recovery room Heckel began to complain of sight loss, and he sued the doctor and the hospital. The hospital settled for $350,000.

Heckel apparently took out an Elkins city permit for a commercial building on Martin Street. According to Offutt, private investigator Bill Pauer videotaped Heckel at the site for 50 hours on seven days from Dec. 11 to Dec. 19.

“He is seen reading, supervising, measuring, lifting, hammering, shoveling, raking, using a wheelbarrow, operating dangerous power equipment, operating heavy equipment, operating a motor vehicle, and guiding truck drivers as they deliver loads of gravel and pipe,” Offutt wrote in his motion. “Melvin Heckel, a man 69 years of age, is in outstanding physical condition. For seven consecutive business days, Melvin Heckel was seen arriving at the construction site early in the morning and staying into the evening. …

“Time after time, Melvin Heckel can be observed doing the exact activities he consistently testified under oath that he could no longer perform,” Offutt wrote in his motion.

Henning apparently didn’t see it that way.

“The Court cannot agree with the defendant’s current assertions that the plaintiff represented he was totally blind,” the judge wrote. “The plaintiff’s actual testimony clearly demonstrates that the defendant was forthcoming about his limited visual abilities and did not discuss total blindness.”

Henning then wrote that D’Amato’s team apparently didn’t supply all of the videotaped footage of Heckel it could have.

“The defendant failed to include footage of the plaintiff struggling to exit and walk down steps from a public building in Elkins with the assistance of his wife. This footage again supports the contention that the plaintiff Melvin Heckel has severe visual impairment as a result of the surgery conducted by the defendant, Dr. Kenneth D’Amato. …

“Under the level of proof required to mandate a finding of fraud … the defendant has not approached the necessary ‘clear and distinct proof’ standard, nor has the defendant been able to present an argument that would rise to the lesser standard of ‘preponderance of the evidence’ which is required in most civil cases in West Virginia.”

Henning goes on to describe some of the problems he had with the videotape, comparing it to testimony from the case.

He writes that the videotape shows Heckel measuring distances on lumber. Heckel had testified that he had purchased a special tape measure with large numbers for people who are visually impaired.

The tape also shows Heckel looking at his watch to check the time. Heckel had testified that he has a special watch that audibly gives the time when a button is pushed.

Noting that he worked construction during college, Henning wrote that Heckel seemed to be doing tasks expected of a man who had been in the profession for nearly 50 years.

“Heckel’s functioning at the job site is of a very minor nature and is more of a presence than an actual contributor and is not in any way inconsistent with the plaintiff’s testimony and the other evidence offered at trial.”

Going on to describe Heckel’s slower and deliberate movement on the video, Henning says he recognizes that people “tend to try and remain active and to do those things that they did for their working life.”

“This Court cannot force an individual to remain cloistered in his house after suffering a catastrophic visual injury simply to prove he was injured,” Henning wrote. “There has never been an allegation that the plaintiff was totally without vision …”

Henning then takes D’Amato’s team to task over the word “blind” and defines total blindness and legal blindness.

“Plaintiff also correctly points out that the defendant’s trial counsel never challenged the plaintiff’s vision during trial,” the judge wrote.

Henning says he also considered the testimony of several expert medical witnesses, noting that the defendant’s own expert corroborated the vision loss. Court records from last year’s trial show that Heckel’s treating physician referred him to the Cleveland Clinic, West Virginia University and Johns Hopkins.

“The plaintiff is legally blind, but as this Court has repeated ad nauseum in this order, that does not equate to total blindness,” Henning wrote.

Charleston attorney Kent Carper and Elkins attorney David Sims represented Heckel.

Carper said he obviously is pleased with the judge’s order.

“I think it’s very significant, especially in light of who the judge is,” he said. “He’s a long serving, well-respected conservative judge.”

D’Amato had petitioned the state Supreme Court of Appeals for a new trial. The Supreme Court had stayed the proceedings until Henning made this decision. Carper said he already has filed a motion to lift that stay. So that petition for a new trial should go before the Court this fall.

Nov. 1
Teresa L. Topping and Richard E. Topping vs. Teresa S. Main
PA – Jefferson Triplett; J – Wilfong
* The plaintiffs claim the defendant owes at least $53,719.89 plus interest after violating a lease agreement from July 21, 2010, and causing property damage to a two-story home, including painting without permission and causing damages to fixtures and new carpet.
Case number: 11-C-168

Nov. 7
Henkels & McCoy Inc. vs. AES Laurel Mountain LLC, KR Wind Inc. and Tennessee Valley Infrastructure Group Inc.
PA – Shawn Romano; J – Wilfong
* The plaintiff claims the defendants have defaulted on the terms of a contract and now owe at least $562,243.00 plus interest for labor and materials, which were provided by the plaintiff.
Case number: 11-C-175

Nov. 8
Center Designs LLC vs. Tuscan Sun Spa LLC
PA – Gregory Sproles; J – Wilfong
* The plaintiff claims the defendant owes at least $52,157.00 plus interest after defaulting on the terms of a lease agreement from Nov. 23, 2008.
Case number: 11-C-176

Nov. 29
Joyce Shaffer vs. Armstrong World Industries Inc., Greg Nealis and John Longbon
PA – Lori Gray; J – Wilfong
* The plaintiff claims the defendants made an “adverse employment decision” regarding the plaintiff, based on her gender, after she applied for a supervisor position, which is a violation of the West Virginia Human Rights Act. She is seeking an undetermined amount of relief.
Case number: 11-C-190

Dec. 12
Naurhaan M. Alidinar, a minor, by her father, Mousa Alidinar, vs. Chelsea Renee Branson, Daniel Sigley and Kathryn Sigley
PA – Paul Cranston; J – Wilfong
* The plaintiff claims Branson, the daughter of the Sigleys, was negligent and caused a vehicle accident Nov. 5, 2011, in Garrett County, Md., causing severe and permanent injuries to Naurhaan Alidinar, who was a passenger in the backseat. She suffered a right femur fracture, left elbow dislocation, head injury and other injuries and had to be flown via helicopter to Ruby Memorial Hospital. The plaintiff is seeking an undetermined amount of relief.
Case number: 11-C-198

Dec. 13
Richard Friel vs. Kenton Meadows Co. Inc.
PA – Roger Foreman; J – Wilfong
* The plaintiff, who worked for the defendant at its Randolph County quarry as a rock crusher operator, was severely injured Jan. 19, 2011, when equipment became jammed and Friel attempted to dislodge rocks from the crusher’s feeder. He was struck by a boulder and became pinned in the crusher. He claims the defendant’s management officials had prior knowledge that the equipment was broken and posed a high risk to workers, and they fabricated a story about how he was injured when they learned of the incident. He claims they told Friel he would be fired if he didn’t go along with the false story of him slipping, and he went along with it because he feared losing his job. However, the company wrongfully terminated his employment Oct. 31, 2011. He is seeking an undetermined amount of relief.
Case number: 11-C-199

EKLINS – At least one person seeking to fill the vacancy of former Randolph County Prosecutor Richard Busch received some opposition to his candidacy.

Among the attorneys vying to become Randolph’s interim prosecutor for the next year was Dwight R. Hall. Along with Frank P. Bush Jr., Kurt W. Hall, Christina Harper, Phillip Isner, Earl W. Maxwell and Michael W. Parker, Hall — who ran unsuccessfully in the 2008 Democratic primary for prosecutor — submitted his name to the Randolph County Commission for consideration to fill Busch’s unexpired term.

On Dec. 5, Busch abruptly resigned as prosecutor following multiple allegations of misconduct, including making misrepresentations to the court – for which he was held in contempt by Randolph Circuit Judge Jaymie Godwin Wilfong – and how he managed his office.

After interviewing all the candidates over two days, the Commission on Dec. 23 selected Parker, who previously worked as an assistant prosecutor before leaving for McNeer, Highland and McMunn & Varner’s Elkins office in 2008. He was sworn-in as prosecutor on Jan. 3.

In a letter dated Dec. 16, Jerry L. Burkhammer, a salvage yard owner in Weston, wrote Commission President Mike Taylor encouraging he, and the other commissioners to pass over Hall as Busch’s replacement. In his letter, Burkhammer said if past performance is any indication, Hall would be just as bad, if not worse, than Busch.

As he did in his ethics complaint to the Office of Disciplinary Counsel, Burkhammer detailed to the Commission how Hall failed to provide him little, if any, legal assistance in his 2007 criminal case in Tucker County. At the time, Burkhammer was charged with one count each of violation of a protective order, and attempt to commit conspiracy, both misdemeanors.

The sum total of Hall’s representation, Burkhammer said, was a brief meeting they had at the Kentucky Fried Chicken in Elkins after Burkhammer made a surprise visit to his office when Hall failed to return his repeated telephone calls. That day, he said he found Hall not at his office, but at magistrate court where his wife works.

Also, despite his requests, Burkhammer says Hall failed to make a motion to have Magistrate Carol Irons recused from presiding at his July 2008 trial. Though Burkhammer explained to him how Irons might have a conflict of interest due to her not only serving as a bailiff during his abuse and neglect case that led to the termination of his parental rights, but also later confiding to her how he believed his ex-girlfriend, Sheryl Connor-Kines, used the proceeding to gain control of their daughter, Lindsay Brooke, from him, he said Hall failed to take heed.

In his letter, Burkhammer gave Hall credit for not only appealing his conviction on the violation of a protective order to circuit court, but also moving to have Judge Philip Jordan recused from the case. Hall made the motion on the grounds that Jordan, who presided in the abuse and neglect proceeding, referred to Burkhammer as a pedophile despite the fact Burkhammer has never been arrested or convicted of any sexual-related crime.

Nevertheless, Burkhammer said Jordan upheld his conviction and affirmed Irons’ ruling that he serve the maximum sentence of six months in jail. Following Jordan’s ruling, Hall resigned from Burkhammer’s case, and another attorney was appointed to help in his appeal.

The failure of that attorney, Chad Cissel, to adequately help him with his appeal led Burkhammer to file a complaint against both he, and Hall with ODC in Oct. 2010. Shortly after he filed it, ODC dismissed his complaint against Hall saying he missed the deadline to file it.

In his letter, Burkhammer detailed how Hall had a problem in providing legal assistance to other court-appointed clients. He recounted the admonishment ODC gave him in 2002 for not helping Michael Williams the year before file a writ of habeas corpus, and how Jack Hinchman in Tucker County, and William J. Clark in Gilmer County separately in 2005 accused Hall of not only “incompetent representation, but coming to court either drunk or smelling of alcohol.”

Burkhammer disclosed that ODC dismissed Hinchman’s and Clark’s complaints.

Nevertheless, he said all the complaints, including his, taken together show “how inept of an attorney Mr. Hall is.” Despite being a resident of Lewis County, Burkhammer said he felt he would be remiss if he didn’t bring accounts of Hall’s ineptitude to the Commission’s attention.

“I believe the people of Randolph County would be done a disservice if Mr. Hall was allowed to serve one minute, let alone one year, as prosecutor,” Burkhammer said.

The West Virginia Record attempted to get a comment from Commission President Mike Taylor about Burkhammer’s letter, and what effect, if any, it had on their decision. He was unavailable for comment, and did not return repeated calls by presstime.

The Record also sought a comment from Hall. He, too, was unavailable for comment and did not return repeated telephone calls.

Parker

EKLINS – A familiar face returns to the Randolph County Prosecutor’s Office to lead it for at least the next year.

The Randolph County Commission on Dec. 23 appointed Michael W. Parker, an associate at the Elkins office of McNeer, Highland, McMunn & Varner, to fill the unexpired term of former prosecutor Richard Busch.

Parker, 32, who worked as an assistant prosecutor from 2005 until 2008 before taking a job at McNeer, Highland, McMunn and Varner, was sworn into office Jan. 3.

Parker, a native of White Sulphur Springs, joined fellow Randolph County attorneys Frank P. Bush, Dwight R. Hall, Christina Harper, Philip S. Isner and Earl W. Maxwell as well as Kurt W. Hall, an assistant Harrison County prosecutor, to be Busch’s replacement. The Commission interviewed all the candidates over a two-day period before finally choosing Parker.

Busch, who was first elected prosecutor in 2008, abruptly resigned on Dec. 5 as the Commission was preparing to accept a report from Charleston attorney Jim Lees they hired to conduct an inquiry into personnel problems at the prosecutor’s office. Because of Busch’s resignation, the Commission agreed not to accept Lees’ report or make it public.

During the last year, Busch was accused of multiple acts of misconduct, including making material misrepresentations in the case of Autumn Faulkner, a former Elkins Middle School teacher accused of having sex with one of her former students. An indictment brought against Faulkner in February was dismissed in June when Busch failed to provide a videotaped interview between police, and the alleged victim to Faulkner’s attorney.

Initially, Busch blamed the investigating officer, West Virginia State Trooper First Class A.S. Loudin for losing the tape. However, he later took responsibility for losing it.

Because he not only lost the tape, but also initially blamed Loudin for the loss, Randolph Circuit Judge Jaymie Godwin Wilfong found Busch in contempt. In lieu of sanctioning him, Wilfong referred the matter to the Office of Disciplinary Counsel, the arm of the state Supreme Court that investigates attorney misconduct.

At his contempt hearing, it was revealed Wilfong filed a prior complaint against Busch with ODC. The first came after she dismissed the first indictment against Faulkner in January after it was learned the indictment returned in October 2010 was tainted due to an unsolicited comment made by one of the jurors.

Following dismissal of the second indictment, Wilfong in September appointed Parker’s now former law partner, Steve Jory, as a special prosecutor in Faulkner’s case. He has yet to make a decision on whether to re-indict Faulkner or dismiss the case.

According to the Randolph County Clerk’s Office, Parker’s salary will be $92,200. If he wishes to remain as prosecutor, he will have to run for a full term in this year’s election.

Dec. 15
Judy Welch vs. Gary Ransbottom and Glady Fork Cabins Co.
PA – Erika Kolenich; J – Wilfong
* The plaintiff, who was formerly engaged in a romantic relationship with Ransbottom, claims the defendant has failed to return personal property to her and has failed to fully compensate her for work, contributions and assistance to his business that she provided before their relationship ended. She is seeking an undetermined amount of relief.
Case number: 11-C-202

Dec. 16
FIA Card Services NA vs. Adam J. D’Angelo
PA – Edna Coulter; J – Wilfong
* The plaintiff claims the defendant owes at least $38,874.93 plus interest for a past-due credit account.
Case number: 11-C-204

Dec. 22
Stevens Engineers and Constructors Inc., formerly Stevens Painton Corp., vs. Tennessee Valley Infrastructure Group Inc.; AES Laurel Mountain LLC; AES Wind LLC; AES PJM Wind LLC; AES Corp.; Thomas L. Ferguson; Linda Kay Ferguson; E&K Properties LP; Pamela S. Gobert; Wilson H. Van Meter; C. Sterling Van Meter; David P. Van Meter IV; Charles A. Van Meter; Tall Trees and Land LLC; Harry Smith, trustee; Polino Enterprises Inc.; Davis Trust; Coastal Forest Resources Co., d/b/a Coastal Timberlands Co.; Carol Molnar; Daniel Molnar; Matthew Molnar; Geneva Molnar; Myles Family Foundation; June Myles; John M. Mosesso, trustee of the John A. Mosesso Testamentary Trust; Victor Mosesso; Gene Allen Andrews, secured party; Inga Andrews, secured party; Metlife Insurance Co. of Connecticut; Metropolitan Life Insurance Co.; and Douglas C. McElwee, trustee
PA – Robert Bays; J – Wilfong
* The plaintiff is seeking at least $2,146,722.19 plus interest from Tennessee Valley after it breached a contract from July 22, 2010, by failing to pay for construction services related to building a wind-powered, electric generation facility in Randolph County. The plaintiff named additional defendants who have property- or lien-related interests in the project.
Case number: 11-C-210

Jan. 3
Franklin McCauley vs. Bethany Shipley
PA – Lori Gray; J – Good
* The plaintiff claims the defendant was negligent and caused an accident on Aug. 31, 2010, when she was operating a 2005 Ford Escape on Ward Road in Elkins and struck the plaintiff, who was on foot. The plaintiff claims the defendant was preoccupied and distracted by using her cellphone to read and/or send text messages while driving. The plaintiff suffered serious injuries and is seeking an undetermined amount of relief.
Case number: 12-C-3

Jan. 25
Rismawaty “Dewi” Helmick vs. Jack Jr., administrator and sheriff of Randolph County; Charles M. Helmick, son; Pamela A. Navari, daughter; Timothy L. Helmick, son; and Western Surety Co.
PA – George Triplett; J – Wilfong
* The plaintiff is the widow of Charles Cecil Helmick Jr., who died Oct. 26, 2006. She claims defendant Pamela Navari, as administratrix of the estate, allowed more than $197,000 in cash advances to be taken from the estate for her personal benefit and also mishandled other estate affairs, including a real estate sale. The plaintiff is seeking an undetermined amount of relief.
Case number: 12-C-24

Feb. 1
Woodford Oil Co. vs. Davis & Burton Contractors Inc. and Stephen C. Davis
PA – Rebecca Judy; J – Wilfong
* The plaintiff was awarded a total judgment of $112,757.89 plus any post-judgment interest and costs for overdue payments. The judgment was issued July 18, 2008, in Boyd Circuit Court in Kentucky, and the foreign judgment notice was filed in Randolph County Circuit Court.
Case number: 12-C-29

Feb. 3
Wilma D. Miller, individually and as administratrix of Melanie Nicole Miller’s estate, vs. County Commission of Randolph County d/b/a Office of Emergency Management of Randolph County, Elkins-Randolph County Emergency Squad Inc., Randolph County EMS Volunteers Elkins Unit Inc. d/b/a EMS Volunteers and city of Elkins
PA – C. Richard Wilson; J – Wilfong
* The plaintiff claims the defendants were negligent and caused her daughter’s wrongful death because they failed to respond in a timely manner to her home after she called 911 for her daughter on Feb. 6, 2010. She claims the first EMS unit called to respond failed to do so because it was heading to a gas station, and the second unit called to respond wasn’t able to find her home because of the city’s inadequate 911 addressing and mapping system. This delay of several minutes led the plaintiff to take her daughter to the hospital herself, where her daughter died of cardiac arrest. The plaintiff is seeking an undetermined amount of relief.
Case number: 12-C-31

ELKINS -– A Randolph County woman is alleging a series of snafus committed by EMS personnel contributed to the death of her daughter.

The Randolph County Commission, the city of Elkins and two ambulance squads are named as co-defendants in a six-count wrongful death suit filed by Wilma D. Miller. In her complaint filed Feb. 3 in Randolph Circuit Court, Miller, 65, of Elkins, alleges the failure of ambulances to timely respond to multiple calls she made seeking medical assistance for her daughter, Melanie Nicole, ultimately led to Melanie’s death.

According to the suit, Melanie on Feb. 6, 2010, suddenly “became very ill” at the home Wilma shares with her husband, Robert, on Westview Drive. About 9:52 a.m., Wilma called 911, which is operated locally by the Commission via its Office of Emergency Management.

Two minutes later, an operator at the 911 center dispatched a crew from the Randolph County Emergency Services to the Miller’s address. A minute later, an unidentified person from RCES called the 911 center back suggesting they dispatch a crew from the Elkins unit of the Randolph County EMS Volunteers as the RCES crew was “‘at the [gas] pumps ready to go to Morgantown.’”

According to the suit, the RCES crew “had no patient in the ambulance … was not en route to an emergency call,” but instead “was fueling up to make an inter-facility transport.” Also, the RCES crew “failed to request any more information to determine which call might be of a higher priority.”

At 9:56 a.m. the 911 center sent a dispatch to RCEMSV. Nobody from RCEMSV immediately responded.

Two minutes later, Wilma called the 911 center again saying Melanie was fading into unconsciousness, and she “‘was going to die.’” Instead of remaining on the line to comfort Wilma, and obtain additional information, the suit alleges the operator hung-up on her.

At 10 a.m., the 911 center sent a second dispatch to RCEMSV. Ninety seconds later, Unit 787 responded saying they were en route to the Miller’s address, and anticipated arrival in 40 seconds.

Shortly after the second dispatch, Robert called the 911 center “in a state of panic, to report … Melanie was ‘dying.’” Though he reported Melanie had “‘all kinds of [health] problems,’” the suit alleges the operator failed to inquire as to what they were or provide Mr. Miller with any pre-arrival instructions.

According to the suit, Melanie was first diagnosed with a mixed connective tissue disease in 1993 when she was a student at Davis and Elkins College. In January 2010, she was also diagnosed with hypertension.

At 10:02 a.m. the 911 center sent out a broadcast that Unit 787 was handling the call. Two minutes later, they put out a second broadcast that “‘Melanie had fallen.’”

At 10:09 a.m. Unit 787 contacted the 911 center saying “they were lost and unable to locate the Miller family residence.” According to the suit, the 911 center gave directions to Unit 787 for the next 90 seconds as the crew “either did not have available or did not utilize a G[lobal] P[ositioning] S[ystem], navigational aids or standard maps.”

Shortly after 10:16 a.m., RCEMSV Unit 787 reported to the 911 center they arrived at the Miller’s home, “but that the family had left for the hospital.” A minute later the crew “left the Miller home with an empty ambulance.”

According to the suit, at that very moment Melanie was being wheeled in the emergency room at Davis Memorial Hospital in Elkins. The ER staff attempted to stabilize her for the next three hours until a continual drop in her blood pressure sent her into cardiac arrest at 1:45 p.m., and resuscitation efforts were halted six minutes later.

She was 37.

According to her death certificate, Melanie’s primary cause of death was a mydocardial infarction with gastroenteritis listed as a contributing factor. Dr. Eric Anger determined she died of natural causes.

In the suit, Wilma, who two months after Melanie’s death qualified to be the administratrix of her estate, alleges the Commission, the city, RCES and RCEMSV all bear responsibility for Melanie’s death. If Melanie had been transported to DMH in “timely” fashion, she maintains Melanie “would have had a greater than twenty-five percent chance of surviving the cardiac arrest that ended her life.”

According to the suit, city officials as late as 2008-09 were aware of deficiencies with their 911 mapping system which would “prevent or thwart emergency responders to locate and find homes and businesses quickly.” On an unspecified date, the city council voted against accepting the recommended improvements to addressing and numbering system which existed.”

In the suit, Miller makes claims wrongful death, and negligence against the Commission, the city and RCES/RCEMSV. As a result of their negligence, Miller maintains she’s incurred “medical, funeral and burial expenses” for Melanie as well as sorrow and mental anguish.

Miller seeks unspecified damages, interest court costs and attorneys fees. She is represented by Moundsville attorney C. Richard Wilson.

The case is assigned to Judge Jaymie Godwin Wilfong.

Randolph Circuit Court case number 12-C-31

Feb. 15
Robert Drain vs. Davis Memorial Hospital
PA – Paul Harris; J – Wilfong
* The plaintiff claims the defendant was negligent and failed to properly care for him, monitor and treat his medical condition on Feb. 16 and 17 when he was admitted to the Intensive Care Unit after a fall at home. He claims he was given Phenergan, which should be used with caution for patients like himself who are at risk for seizures, and he later fell from his hospital bed and remained unresponsive and nonverbal for several hours. He claims his changes in condition were not reported to the attending physician, and he later had to be transported to Ruby Memorial Hospital in Morgantown because of an intracranial hemorrhage. He is seeking an undetermined amount of relief.
Case number: 12-C-36

Feb. 16
Citizens Bank of West Virginia, as successor in interest to The Citizens National Bank of Elkins, vs. Gold Resources LLC, United Coals Inc., Gold Diggers Inc., Jeffrey A. Goldizen and Debra D. Goldizen
PA – Gordon Copland; J – Wilfong
* The plaintiff claims the defendants owe at least $212,454.10 plus interest after failing to meet the terms of a loan agreement from Dec. 13, 2007.
Case number: 12-C-37

Feb. 17
Woodford Oil Co. vs. Jay Michael LLC and Marsha West
PA – Rebecca Judy; J – Wilfong
* The plaintiff claims the defendants owe at least $35,964.31 plus interest, as well as liquidated damages, on a past-due account.
Case number: 12-C-42

Feb. 28
Movin’ and Smoothin’ Inc. vs. Novus Operating LLC, Zachary Pitzer and Tenaska Resources LLC
PA – Hunter Mullens; J – Wilfong
* The plaintiff claims the defendants breached a contract from Oct. 1, 2011, for work related to construction of a gas well on the defendants’ property in Randolph County. The plaintiff claims the defendants delayed work by failing to make all necessary arrangements for the work site, including right-of-way agreements for road construction and state permits. The plaintiff also claims the defendants have failed to pay for all the work that was completed, and now owe at least $154,775.31 for unpaid invoices. The plaintiff is seeking that amount plus other damages.
Case number: 12-C-48

Feb. 29
Teresa Gotinsky Brusak and James Anthony Brusak vs. James Bazzle and Highland Farms
PA – Angela Blythe; J – Wilfong
* The plaintiffs claim the defendants were negligent and made false statements to the plaintiffs in order to convince them to purchase a horse named Eagle. The plaintiffs claim the defendants said the horse was trained for riding, exceedingly gentle and even safe for small children to ride, even though the defendants “actually had done very little or nothing to train, ‘break,’ or otherwise make Eagle safe for riding.” A week after purchasing the horse and letting it get used to its new surroundings, Teresa Brusak attempted to ride Eagle but was violently thrown off. She suffered five fractured pelvic bones, bruised ribs, back injuries and other medical problems as a result. The plaintiffs are seeking at least $300,000 for compensatory damages and other relief.
Case number: 12-C-49

Randolph County Courthouse

May 6
Hayward J. Godfrey Jr. vs. Anna M. Perry-Landis
PA- James Villanova; J– Wilfong
* The plaintiff claims he suffered permanent injuries as a result of a vehicle accident on June 14, 2011, when Godfrey was a passenger in the defendant’s vehicle. He claims she was negligent and caused her car to travel at a high rate of speed and strike a parked vehicle. The plaintiff is seeking an amount of relief to be determined.
Case number: 13-C-68

May 8
Richard Alan Huffman vs. Penny Sue Vandevender
PA– Rebecca Judy; J– Wilfong
* The petitioner is seeking the sale of a property that he and the respondent purchased when they were engaged. They made extensive repairs and remodeled portions of the house, and the petitioner invested more than $9,000 into the home, above monthly mortgage payments. He claims he has offered to sell his share of the property to Vandevender for $24,000, but she has refused.
Case number: 13-C-70

June 5
Shelia Hagans vs. Robert T. Penic and Circle D Enterprises Inc.
PA– Erica Kolenich; J- Wilfong
* The plaintiff claims she suffered severe injuries, medical expenses, pain, suffering and other damages on April 5, 2012, when Penic, as an employee of Circle D, operated his tractor-trailer in a reckless manner and failed to stop at a traffic light, causing a collision with the rental vehicle she was driving. Hagans is seeking an undetermined amount of compensation.
Case number: 13-C-81

June 6
Shawn Perry vs. Robert T. Penic and Circle D Enterprises Inc.
PA– Erica Kolenich; J– Wilfong
* The plaintiff claims he suffered severe injuries, medical expenses, pain, suffering and other damages on April 5, 2012, when Penic, as an employee of Circle D, operated his tractor-trailer in a reckless manner and failed to stop at a traffic light, causing a collision with a vehicle in which the plaintiff was a passenger. Perry is seeking an undetermined amount of compensation.
Case number: 13-C-82

June 13
First National Bank vs. Steven J. Day and Debra S. Day
PA– Philip Hereford; J– Wilfong
* The bank is seeking at least $946,012.20 plus interest in accordance with the terms of two separate loans made by FNB to Tygart Valley Industries LLC, which the Days each individually guaranteed.
Case number: 13-C-84

June 14
Linda Davis, as parent of Amanda R. Burns, a minor over the age of 14, vs. Amanda R. Burns
PA– Robert Chenoweth; J– Wilfong
* The petitioner is seeking authorization to make a $50,000 cash settlement on behalf of her daughter, Amanda Burns, to cover damages and expenses from a car accident the teenager was involved in on Aug. 27, 2012. She was an unrestrained passenger at the time of the single-car accident, and she was 27 weeks pregnant. She has since fully recovered from her injuries and has given birth to a healthy infant.
Case number: 13-C-85

June 17
Robert G. Bohon vs. Jeffrey R. Webb, Thelma L. Asbury and Citizens Bank of West Virginia Inc.
PA– W. Tyler Nestor; J– Wilfong
* The plaintiff claims the defendants were negligent on Aug. 17, 2012, when Webb and Asbury endorsed a draft for $4,456.00 for repair to a mobile home on a parcel of property that belongs to Bohon. The draft was payable to Webb and Bohon, however, Citizens Bank accepted and negotiated the draft without all the signatures as required by law. The bank then permitted Webb and Asbury to access all but approximately $800 of the funds. The plaintiff, who is elderly and has lung cancer, claims to have suffered inconvenience and anguish in this matter, and he is seeking an amount of relief to be determined at trial.
Case number: 13-C-86

June 17
The estate of Marie Lynn Merchant, Robbie Merchant, Vinson A. Russell and Darius O. Merchant, a minor child by his father, next friend and guardian, Robbie Merchant, vs. Elkins Regional Convalescent Center Inc.
PA– John Wallace; J– Wilfong
* The plaintiffs claim the defendant caused Marie Lynn Merchant’s wrongful death from a heart attack on Oct. 24, 2012, by refusing to allow her to seek medical treatment for chest pains while she was working the night shift as a certified nurse’s assistant. They claim the defendant threatened to terminate Merchant’s employment and have her license revoked if she left during her shift, and they claim the defendant has a history and pattern of these threats. After her shift concluded at 8 a.m., she returned home and died within minutes from a massive heart attack. The plaintiffs are seeking an undetermined amount of relief.
Case number: 13-C-87

June 17
West Virginia National Guard Federal Credit Union vs. Ian C. McDougal
PA– Arie Spitz; J– Wilfong
* The plaintiff is seeking at least $54,424.24 plus interest following the defendant’s breaches and unjust enrichment relating to seven separate notes.
Case number: 13-C-88

Justices of the state Supreme Court

CHARLESTON – The state Supreme Court has upheld a Randolph County judge’s decision dismissing a couple’s lawsuit against the county commission, its dog warden, the local humane society and a national pet store retail chain that they allege conspired to steal and sell their dog.

The court affirmed an order entered last year by Judge Jaymie Godwin Wilfong not only dismissing the Randolph County Commission, PetSmart and PetSmart Charities, Inc., but also granting summary judgment to Jim Cain, the county dog warden, and the Randolph County Humane Shelter and its president Maria Kostankos and manager Kelly Scheidegger in a suit filed by Verda B. and Charles E. Wiseman.

In a memorandum opinion issued Oct. 18, a unanimous court agreed Wilfong was correct in finding that the Wisemans failed to prove any of the defendants acted unlawfully or inappropriately in how their Boxer-mix Nikki was seized and later adopted.

Memorandum opinions are issued by the court in cases that present no new issues of law, and would not be aided by oral arguments.

According to court records, Cain on Feb. 3, 2012 received a call from an unidentified elderly man that two dogs were running at large in his neighborhood. The man claimed after jumping on he and his wife, Nikki defecated in his yard.

If Cain did not seize Nikki, the man said he “would take care of the issue with his rifle.” At an unspecified time, Cain found Nikki at the home of one of Wiseman’s neighbors and impounded her over the neighbor’s objections.

According to the Wisemans, Nikki would visit the neighbor, who is not identified in court records, on a daily basis and would receive treats.

After Nikki’s impoundment, the Wisemans began in earnest to get her released. Upon arriving at the shelter, they claim Cain gave them a hostile reception in which he told them they faced three misdemeanor charges of failing to pay a dog tax, failing to obtain a rabies vaccine and allowing a dog to run at large.

They could leave without Nikki and not be arrested, Cain said, or pay a $600 fine, and take her home.

Over the next several days, the Wisemans attempted to have either their daughter or the neighbor adopt Nikki. However, they claim the shelter staff and Cain lied about either the adoption policies or Nikki’s availability.

According to court records, when Nikki was not claimed after five days she was legally adopted. In their suit, the Wisemans claim the adoption process in Randolph County was part of conspiracy by the commission, RCHS and PetSmart to take animals from the state “to geographical areas of greater economic prosperity, and then sold under the guise of rescuing an animal.”

In their suit, the Wisemans admitted to having Nikki vaccinated for rabies, but failing to pay the dog tax. Also, they aver she had a monetary value of $500.

Following a hearing on Aug. 24, 2012, Wilfong on Oct. 1 granted motions made by the commission and PetSmart and its related charitable organizations to dismiss them from the suit on the grounds the Wisemans failed to make a valid claim against them. Also, Wilfong granted Cain’s motion for summary judgment on the grounds he was immune from liability since he acted within the scope of his authority.

Three weeks later, Wilfong dismissed RCHS, Kostankos, and Scheidegger after the Wisemans conceded they were entitled to summary judgment as a matter of law.

In affirming Wilfong’s decision, the court said the Wisemans failed to make a convincing case why they should overturn her rulings particularly against Cain. Regardless if his attitude was less than professional and he was less than honest, state law is clear that dog wardens are empowered to seize and impound any dog six months or older not wearing a valid registration tag.

“[Nikki] was not wearing a registration tag when the dog warden seized her and she was nine years old,” the court said. “Further the dog warden impounded the dog at the Humane Society and gave [the Wisemans] actual notice when he met with them on the day the dog was seized.”

“Finally,” the court added, “[the Wisemans] did not claim their dog within the five day holding period. Hence, the circuit court did not err in find the dog warden complied with his statutory duties in seizing and impounding [the Wisemans'] dog.”

West Virginia Supreme Court of Appeals, case number 12-1312
Randolph Circuit Court, case number 12-C-61

CHARLESTON — The state Supreme Court has suspended the law license of a former Randolph County prosecuting attorney for three years.

Busch

The court said Richard T. Busch was guilty of misconduct during his tenure in office from early 2009 to late 2011.

The order, issued Wednesday, says Busch ignored a defense request for documents in one case and obstructed defense access to a victim’s recorded statements in the other case. He also gave false statements to the circuit court in both cases about the location of evidence.

“There is simply no justification for permitting Mr. Busch’s ability to practice law to go unimpeded after he engaged in such egregious conduct as a public official,” the court wrote.

Busch had sought a lesser suspension. He contended that his conduct was negligible but not intentional.

“If Mr. Busch’s actions were truly negligent and not intentional, he had numerous opportunities to make amends. He made a conscious choice, however, to maintain his misrepresentations to the lower court,” the order stated. “We find that Mr. Busch’s pattern of misconduct, coupled with his habit of continuing his dishonest behavior even when provided opportunities to remedy the same, was a detriment to the public office, to the State of West Virginia as his client, to the public who deserved efficiency and protection from the public office, to the legal system, and to the legal profession.”

Busch must have a mental health evaluation before he seeking reinstatement, and he must undergo 12 hours of continuing legal education focusing on ethics. If he is reinstated, he will be on probation for two years under the supervision of a practicing attorney.

The sanctions stemmed from two cases, one involving alleged embezzlement by a fiduciary and another involving alleged sexual abuse charges.

The first count stemmed from Bush’s prosecution of Judy Mae Blake. According to the statement, Blake was arrested on December 7, 2009, and charged with embezzlement by a fiduciary.

Along with her husband, J. Ronald Jr., Blake operated the Community Response Foundation, a non-profit organization that provided payee services for Social Security representatives. Following Ronald’s death on Nov. 29, 2009, Judy continued as CRF’s director.

The same day she was arrested, the Randolph County Sheriff’s Department obtained a warrant to search all of her and CRF’s computers. Deputy A.G. Vanscoy signed a receipt for four computers, and 13 miscellaneous papers.

On a motion made by Appalachian Benefits Assistance Corp., CRF’s court-appointed conservator, Circuit Judge Jaymie Wilfong on April 8, 2010, ordered all the computers seized “be turned over, FORTHWITH, to the State Police Crime Lab and that a complete archival record for each computer be made and forwarded to Appalachian Benefits on an EXPEDITED basis.” Three weeks later, Vanscoy wrote Busch, and told him what would be necessary for the Lab to comply with Wilfong’s order.

When the records where not forthcoming, Wilfong ordered Busch on July 21 to appear, and explain why. According to the statement, Bush said Sgt. Casto in Morgantown had possession of the computers, and he was still awaiting his response on the status of duplicating the materials.

However, an unidentified person from the prosecutor’s office the next day inquired about the computers, and was told they were still in the Sheriff’s Department’s evidence locker. A week later, Wilfong ordered Vanscoy to personally transport them to the State Police Lab in Morgantown.

On Aug. 24, Wilfong ordered that copies of all documents on the computers’ hard drives be duplicated, and a copy provided to ABAC, and Blake’s attorney, Steve Jory. According to the statement, ABAC received copies, but Jory didn’t.

Following an exchange of letters between Jory and Busch for much of September 2010, Wilfong on Oct. 12 sent one to both making it clear Busch at the July 21 hearing was to provide Jory copies of the hard drive files. According to the statement, Busch did not respond to Wilfong’s letter, and later presented a case against Blake to the grand jury which returned an 11-count indictment against her on Oct. 25.

However, in a letter dated Nov. 9 to Jory, Busch said while he considered the “‘filed contained on the hard drives as neither relevant nor germane to the charges against your client’,” he, nevertheless, “‘had directed Deputy A.G. Vanscoy to release the original hard drives that were obtained.’” Despite Busch’s letter, the Sheriff’s Department refused to return the hard drives without a signed court order.

After signing an order compelling the Sheriff’s Department to release the computers, Wilfong on Dec. 22 scheduled a hearing on Jory’s motion to dismiss the indictment based on Busch’s “multiple lies to the Court.” During the hearing, Wilfong found Busch “made false statements to the Court in the July 21, 2010 hearing; attempted to shift the blame to others who were not responsible [and] failed to correct the false statements made to the Court in the July 21, 2010 hearing even after the Court gave him an opportunity to correct the same by the issuance of her Oct. 12, 2010 letter.”

According to the statement, Wilfong granted Jory’s motion, and dismissed the indictment, with prejudice, on Jan. 11, 2011. In her order, Wilfong said her decision was based on Busch “‘clearly demonstrate[ing] a pervasive pattern of prosecutorial misconduct.’”

The same day, Wilfong reported Busch’s alleged misconduct to ODC.

The second count stemmed from Busch’s prosecution of Autumn Rae Faulkner, a former teacher at Elkins Middle School. In February 2011, Faulkner was indicted on three counts each of Sexual Abuse by a Parent, Guardian, Custodian or Person in Position of Trust, and Sexual Abuse in the Third Degree.

The indictment stemmed from allegations Faulkner had a sex with a then-14-year-old male student in 2008 and 2009. It was the third time Busch presented the case to the grand jury.

The first time, the grand jury returned a no true bill, and though it did return an indictment the second time, Wilfong dismissed it based on an unsolicited comment made by one of the jurors.

Following her arraignment on March 9, 2011, Faulkner’s attorney, Rocco Mazzei, on April 15 made a motion to dismiss the indictment or in the alternative suppress evidence. Mazzei’s motion was based on Busch’s failure to provide him with a videotaped interview between the boy and investigators.

During a June 1 hearing, Busch maintained that he had never been in possession of the video. Instead, Trooper First Class A.V. Loudin, who was assigned the case, somehow lost it, but was making a concerted effort to find it.

Since Loudin was not at the hearing, Wilfong rescheduled it for June 7, and ordered both he and Busch to appear. During that hearing, Loudin not only testified the tape was never “lost,” but also he had a copy in his investigative file, and Busch never asked him about it.

Though he attempted to deny he blamed Loudin for losing the tape, Wilfong read a transcript of the June 1 hearing where he said otherwise. After finding he, again, “made a material misrepresentation to the Court,” Wilfong held Busch in contempt.

On June 30, Wilfong held a hearing to consider sanctions against Busch. In lieu of levying any fine, Wilfong announced she lodged a complaint against Busch with ODC on June 14.

Also, Wilfong dismissed the indictment against Faulkner. Later, she appointed Jory as a special prosecutor to determine whether the state should once again present the case to the grand jury.

Records show, the grand jury on Feb. 27 again indicted Faulkner on the same six counts as the year before. After pleading not guilty at her arraignment March 9, Faulkner was released on $1,000 bond.

Due in part to the revelations of Busch’s misconduct, the Commission hired Charleston attorney Jim Lees to conduct an inquiry into personnel problems at the prosecutor’s office. Before Lees could release his report, Busch on Dec. 5 abruptly resigned.

As a result of the resignation, the Commission voted not to accept Lees’ report or make it public. Later that month, they selected Michael W. Parker to fill Busch’s unexpired term.

Parker, who worked as an assistant prosecutor prior to Busch taking office in 2009, defeated Elkins attorney Dwight Hall in the ensuing Democratic primary. He faced no Republican opposition.

For his misconduct, Busch is accused of violating Rules dealing with meritorious claims and contentions, condor toward the tribunal, fairness to opposing party and counsel, misconduct and special responsibilities of a prosecutor. The latter, among other things, directs a prosecutor to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause,” and to “make timely disclosures to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”

West Virginia Supreme Court of Appeals case number: 12-0174

CHARLESTON — The law license of a former Randolph County prosecuting attorney officially has been suspended.

Busch

Last week, the West Virginia Supreme Court of Appeals entered a mandate order taking away Richard Busch’s license for three years.

Busch must have a mental health evaluation before seeking reinstatement, and he must undergo 12 hours of continuing legal education focusing on ethics.

If he is reinstated, he will be on probation for two years under the supervision of a practicing attorney.

He also must reimburse the state Office of Disciplinary Counsel $6,589.80, according to the mandate.

In an opinion filed Feb. 5, the state’s high court said Busch was guilty of misconduct during his tenure in office from early 2009 to late 2011.

In particular, the court said Busch ignored a defense request for documents in one case and obstructed defense access to a victim’s recorded statements in another case. He also gave false statements to the circuit court in both cases about the location of evidence.

“There is simply no justification for permitting Mr. Busch’s ability to practice law to go unimpeded after he engaged in such egregious conduct as a public official,” the court wrote last month.

Busch had sought a lesser suspension. He argued his conduct was negligible but not intentional.

“If Mr. Busch’s actions were truly negligent and not intentional, he had numerous opportunities to make amends. He made a conscious choice, however, to maintain his misrepresentations to the lower court,” the opinion stated.

“We find that Mr. Busch’s pattern of misconduct, coupled with his habit of continuing his dishonest behavior even when provided opportunities to remedy the same, was a detriment to the public office, to the state of West Virginia as his client, to the public who deserved efficiency and protection from the public office, to the legal system, and to the legal profession.”

ELKINS – The parents of a then-7-year-old child who burned himself when he allegedly attempted to use fire starter gel left near a fireplace at their Randolph County home have settled their claims.

The presiding judge in the case had asked the state Supreme Court if negligent parents should take some of the blame for the injuries of their children, to which the court responded in October in the affirmative.

Bailey

The settlement was announced in an April 11 dismissal order signed by U.S. District Judge John Preston Bailey, of the Northern District of West Virginia. Terms were not disclosed.

The settlement came just ahead of a trial that was to be possibly split into two parts. The first would determine liability for compensatory damages, the amount of compensatory damages and whether punitive damages were appropriate. A second would have determined that amount of punitive damages.

The defendants in the case were Hearthmark, Wal-Mart Stores and Packaging Service Company.

On Oct. 17, the state Supreme Court released its answers to four questions certified to it by Bailey.

The fire gel displayed a label that read “keep out of reach of children.”

The court ruled that a negligent parent can be included as a third-party defendant for the allocation of fault, even though the court also ruled that the parental immunity doctrine bars the defendant from asserting a contribution claim against the parents.

“Put in the context of the comparative negligence doctrine in Bradley v. Appalachian Power Co., the plaintiff, A.N., may not recover damages if his own contributory negligence equals or exceeds the combined negligence of the defendants and the third-party defendant’s, A.N.’s parents, in this case,” Justice Menis Ketchum wrote.

The parental immunity doctrine also does not bar a defense of abnormal product use or a defense that the conduct of a parent was an intervening cause of the child’s injuries, the court ruled.

The lawsuit was brought by Kimberly Landis and Alva Nelson, the parents of A.N., in U.S. District Court for the Northern District of West Virginia. Representing the plaintiffs were Dino S. Colombo and Travis T. Mohler of Colombo Law in Morgantown.

The plaintiffs say that on Feb. 28, 2010, A.N. asked his mother if he could roast a marshmallow in the fireplace, which he believed had gone out after burning throughout the day.

While his mother, father and brother were upstairs, A.N. stacked kindling and applied Diamond Fire Starter Gel to the wood.

The bottle was left on a stand next to the fireplace that was within A.N.’s reach. When he sprayed the gel, it allegedly touched a hot ember that was sucked through the bottle cap, igniting the vapors in the bottle.

An explosion gave A.N. severe burns over 65 percent of his body.

The resulting lawsuit was filed against:

-Stull Technologies, the maker of the bottle cap;

-CKS Packaging, the maker of the bottle;

-Packaging Services Company, the producer of the fire starter gel;

-Hearthmark, doing business as Jarden Home Brands, the distributor of the fire starter gel; and

-Wal-Mart stores, where the gel was purchased.

CHARLESTON — Randolph Circuit Judge Jaymie Wilfong has been disqualified from hearing any cases involving the Randolph County Prosecutor’s Office.

Wilfong

State Supreme Court Chief Justice Robin Jean Davis signed the order Thursday and appointed senior status judges Thomas Steptoe and Thomas Keadle to handle the cases on a temporary basis.

The order said Wilfong alerted the court that a notice for her disqualification had been filed. While she told the court she did not want to be disqualified, Davis signed the order because matters “are sufficient to warrant disqualification to avoid even an appearance of impropriety.”

The JIC handed the matter over to the West Virginia Office of Disciplinary Counsel, Lawyer Disciplinary Board, because Wilfong is a sitting member of the Judicial Hearing Board.

In her press release, Wilfong apologized for her actions.

“I have let down my husband, my staff, and everyone who previously looked up to me as a judicial officer,” she wrote. “The local attorneys who filed reports are my friends and colleagues. Their comments caused me to re-evaluate myself, my marriage, and the way that people whom I work with perceive me.

“What I did was morally wrong and it created discomfort among those who surround me. I wish to apologize to each of those individuals and humbly ask for their forgiveness. I thank them for their courage in publicly sharing their insight. Their guidance and direction has saved my life and my marriage.

“I apologize to the people of Randolph County and to the other judges and justices in West Virginia upon whom my immoral affair was a bad reflection. Please be assured that my improper extrajudicial conduct did not ever adversely affect any decision, any litigant, or any hearing over which I presided.

“On a personal note, I publicly thank and again apologize to my husband whom I love more than I can express in words. When other people would have turned and walked away, Matt stood strong, by my side, and taught me the meaning of true love. He is a blessing which I will never take for granted again.”

The Randolph County Commission first suspended Carter in October and hired a Pittsburgh law firm to investigate the matter. Carter resigned his position Dec. 5.

Wilfong has been a judge since 2009, and her term is set to expire in 2016. Before that, she had been a family court judge since 2003.

Wilfong is being represented by Elkins attorney David A. Sims and Charleston attorney Harry Deitzler of the law firm of Hill, Carper, Peterson, Bee & Deitzler.

CHARLESTON — A woman is accusing the state regional jail system of age discrimination after she was passed over for promotion.

Kimberly S. Murphy filed a lawsuit May 6 in Kanawha Circuit Court against the state of West Virginia, the Department of Millitary Affairs and Safety, Regional Jail and Correctional Facility Authority and Tygart Valley Regional Jail, citing age discrimination.

According to the complaint, Murphy has been an employee of Tygart Valley Regional Jail in Randolph County as a clerk since March 2005, after working in several capacities for the state department of corrections since 1979.

On February, 21, 2012, the Regional Jail Authority posted a job vacancy at Tygart, which Murphy applied for, believing that 33 years of experience gave her sufficient qualifications for the newly created human resources position.

However, on April 17, 2012, the position was given to another candidate who had only a year and a half of experience, according to the complaint.

Murphy is accusing the defendants of failing to recognize her qualifications for the position and giving the position to a younger employee deemed “better looking” by members of the hiring committee.

The defendants committed violations of the West Virginia Human Rights Act due to age discrimination against the plaintiff and are accused of creating a hostile work environment, according to the complaint.

Murphy is seeking damages including pre- and post-judgement, compensatory damages and costs.

She is being represented in the case by attorney Bader C. Giggenbach of Brewer & Giggenbach LLC. The case has been assigned to Circuit Judge James C. Stucky.

Kanawha Circuit Court Case No. 14-C-842

CHARLESTON — A Randolph County man is suing after a job offer was allegedly rescinded following a salary investigation.

Carl Campion filed suit May 30 in Kanawha Circuit Court against the West Virginia Department of Education.

The case has been transferred from Randolph Circuit Court. In the original complaint, Campion applied for a position as collision repair instructor at the Huttonsville Correctional Center. He was offered the job over the phone at a pay of $38,010 annually, after originally being told the position paid $42,000 annually.

After investigating the salary discrepancy, Campion learned from the West Virginia Department of Education that in accordance with his age and level of experience he should be paid an annual amount of $48,729.60 for the position, the suit states.

After learning of the pay discrepancy, the WVDE began an investigation into the Huttonsville Correctional Center’s payment policies and discovered several employees were being underpaid. The center blamed Campion for the ensuing investigation, and told him the position he had been given to over the phone was instead being filled by another younger candidate, according to the suit.

The defendant is accused of violation of the Whistle-Blower Law of West Virginia and age discrimination.

Campion is seeking compensatory and punitive damages, plus attorney fees.

He is represented by Morgantown attorneys Kristin B. Taylor and Edward R. Kohout. The case has been assigned to Circuit Judge Tod J. Kaufman.

Kanawha Circuit Court case number 14-C-1002.