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Borough wants to prosecute men on 1995 logging charge

June 14, 1999|By DON AINES

CHAMBERSBURG, Pa. - The Borough of Shippensburg, Pa., on Monday asked a judge to force District Attorney John F. Nelson to prosecute two men charged in 1995 will illegally removing timber from borough land.

In March 1995, Pennsylvania State Police filed charges against former Shippensburg Water Department Supervisor Richard C. Kelley Sr. and logger Donald Johnson, both of Orrstown, Pa., alleging $177,400 worth of timber was illegally harvested from lands around the borough reservoir in Gunter Valley.

The theft charges were based on a criminal complaint filed by the borough, according to court records. State police withdrew the charges in September 1995 after consulting with the District Attorney's Office.

Police records at the time alleged that Johnson paid Kelley $40,000 to $50,000 for the timber, which was removed between January 1990 and April 1993.

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Later, Shippensburg petitioned the court to review Nelson's decision. In April 1998, Nelson wrote in answer to the court that his office had "a long-standing policy" not to prosecute cases that are contractual in nature and for which "adequate civil remedies exist."

Nelson wrote there was evidence of an informal agreement in 1990 for Johnson to remove timber from around the dam and Johnson "made no attempt to hide his activities from the borough employees."

Private investigator Paul Weachter, who was later hired by the borough, testified during Monday's hearing that he interviewed witnesses who claimed they saw timber being removed after dark. Charles E. Shields III, an attorney for the borough, said there was evidence timber was removed before and after the time stated in the original criminal complaint.

Nelson objected when Shields and co-counsel J. McDowell Sharpe tried to introduce evidence not available when he made the decision not to prosecute. Shields said he wanted to show evidence that the harvesting was being "covered up."

Nelson said he would be willing to review another criminal complaint based on any new evidence the borough uncovered.

"The cutting of any live trees ... is something that we would have had to bid," former Borough Manager John Mausert-Mooney testified Monday.

"(Kelly) didn't have the authority to make any kind of agreement," testified W. Edward Goodhart, who was a borough councilman and member of the water authority when the timber was taken.

Herman denied a request by Shippensburg's lawyers to offer examples of similar cases that Nelson's office had prosecuted. "It would be difficult at best to determine whether these cases fell into the same category," he said.

"There's a good potential this case could end up in higher courts," Herman said.

Shields said a civil case is pending against Kelley and Johnson.

"Even if there's a civil remedy, the civil remedy is subject to discharge at bankruptcy," Shields said.

A criminal conviction could allow the borough to seek restitution through forfeiture of Kelley's pension, he said.

The original hearing on the case had been recessed in June 1998. During that time, Nelson said the state declined to review the case.

Herman gave Shields and Sharpe a month to submit additional written arguments and Nelson two more weeks to respond.

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