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KOCHER COAL CO. v. MARSHALL

March 25, 1980

KOCHER COAL COMPANY, a corporation, and Samuel F. Klinger, Plaintiffs,
v.
Ray MARSHALL, Secretary, U.S. Department of Labor, Robert B. Lagather, Assistant Secretary of Labor of the Mine Safety & Health Administration, John B. Shutack, District Manager, MSHA Coal Mine Safety & Health District 1, Samuel M. Blumberg, Jr., RPR, Charles C. Klinger, Inspector, MSHA Coal Mine Safety & Health District 1, Defendants



The opinion of the court was delivered by: TROUTMAN

 The Plaintiff Kocher Coal Company, a Pennsylvania corporation with its principal place of business in Valley View, Pennsylvania, mines, processes and markets coal for use as fuel.

 Plaintiff Klinger is a general mine foreman for the Kocher Coal Company.

 The Defendant Marshall is the Secretary of Labor; the defendant Lagather, the Assistant Secretary of Labor of the Mine Safety & Health Administration, referred to as MSHA; defendant Shutack is the district manager of MSHA Coal Mine Safety & Health District Number One; and defendant Klinger is an inspector therewith.

 MSHA, a component agency of the Department of Labor established by the Federal Mine Safety and Health Act of 1977, 30 United States Code Section 801 et seq., promulgates mandatory standards to protect the health and safety of miners and requires that operators of mines and all miners comply with such standards.

 On March 1, 1977, part of the coal company's Valley View mine, known as the Porter Tunnel Mine, flooded. As a result, it is alleged that nine miners died, three suffered serious injuries, and one remained trapped in the mine for five days.

 Subsequently, MSHA instituted an administrative investigation of the accident. In June 1977 MSHA held a public hearing in Tower City. The hearing panel included employees of MSHA, the Pennsylvania Department of Environmental Resources, either as a member of the panel or assisting therein, a trial attorney from the Department of the Interior, and an Assistant Attorney General of the Commonwealth of Pennsylvania.

 During the course of the hearing the Interior Department attorney commented that conflicting testimony presented at the hearing indicated to him that perjury had been committed, and, therefore, that he would recommend to the Department of Justice that an investigation be commenced to verify his suspicion.

 It appears at the very threshold to be an unusual, if not an extraordinary, procedure to have an attorney in a civil proceeding threaten perjury charges at such public proceeding, considering the number of civil proceedings in which there is from time to time and most generally a conflict of testimony.

 Consequently, and apparently as a result of his statement, the Department of Justice convened a grand jury, which heard testimony relating to the matter. Apparently the grand jury refused to return a true bill, for the Department of Justice did not prosecute or produce indictments or informations against the plaintiffs.

 In September 1979 MSHA commenced an ex parte proceeding, and obtained an order from Judge Pollak of this District to obtain access to the transcripts of the grand jury proceedings.

 In February 1980 Defendant Shutack, the MSHA district manager, issued citations alleging violations of the Act and exposing plaintiffs to civil penalties.

 Plaintiffs allege that defendants issued these citations on the basis of information contained in the notes of the grand jury proceedings.

 Plaintiffs also allege that the defendants have advised them that MSHA will issue and publish a report pursuant to 30 United States Code Section 813(d) regarding the Porter Tunnel Mine accident, and that the report will contain and make public information contained in the grand jury transcripts.

 Plaintiffs, therefore, urge us to declare that defendants' use of and reliance on information contained in the grand jury transcripts in issuing the citations and orders were unlawful and abusive of the secrecy surrounding the grand jury proceedings, and that, therefore, the citations and orders are void.

 Finally, plaintiffs also asked us to enjoin defendants from viewing, reviewing, disclosing, or publishing the contents ...


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