Claiming 'conspiracy,' CBS lawyers ask Supreme Court to delay Alycia Lane lawsuit over email snooping

After eight years of legal maneuvering and appeals, former CBS3 anchor Alycia Lane's negligence lawsuit against CBS for failing to stop former coanchor Larry Mendte from hacking her email and feeding salacious details and photos to gossip columnists was finally set for trial.

Oct. 21 was it, "trial date certain" in court parlance.

Or, maybe not.

Alleging a shadowy conspiracy to replace one judge with another, CBS lawyers have asked the state Supreme Court to put Lane's trial on hold and investigate "unusual and suspicious circumstances" in the Philadelphia court.

CBS lawyer John M. Elliott filed the emergency motion July 15 contending the trial's transfer from Common Pleas Court Judge Mark I. Bernstein to Frederica A. Massiah-Jackson on May 13 was "under a shroud of secrecy" and "by as-yet unknown forces operating within the First Judicial District."

Challenging the integrity of a sitting judge or judges is unusual and drew an equally unusual response from Bernstein.

"Any implication impugning the integrity of judicial assignments in the First Judicial District is grossly misplaced," Bernstein wrote in a six-page opinion filed with the Supreme Court.

"There is nothing mysterious, suspect, questionable or even unusual in this procedure," he added.

Since 2013, Bernstein has overseen pretrial issues in the Lane lawsuit as what the Philadelphia court system calls a "team leader." But when it became apparent that scheduling problems and pending motions would push the trial past October, Bernstein said he transferred it to one of his "team members" - four trial judges he works with.

The reason? Bernstein is retiring in October after 29 years on the bench.

Bernstein wrote that the court has operated this way since 1991, a process that reduced a 27,000-case backlog and six-year delay to trial to a system in which 95 percent of civil cases are resolved within two years.

Elliott could not be reached for comment about Bernstein's opinion.

In a reply brief filed Thursday with the Supreme Court, Lane's attorney, Paul R. Rosen, opposed delaying the trial and asked the court to punish Elliott for what Rosen called "an improper effort to judge shop."

"This trial will not be delayed," Rosen said in a telephone interview Friday.

Rosen said the trial was originally set for April but CBS lawyers insisted they could not try the case because Elliott had a scheduling conflict. What no one knew, Rosen said, was that Bernstein would retire.

"The only conspiracy in this case is in the minds of CBS's counsel and it's a self-inflicted one," Rosen said.

Mendte and Lane coanchored CBS3's 6 and 11 p.m. newscasts until Dec. 14, 2007. Two days later, Lane was arrested in New York City, accused of insulting and hitting a police officer during a traffic stop.

CBS3 fired Lane in January 2008. She entered a diversion program, the charge was dismissed and the case expunged.

Mendte was fired by CBS3 in June, after FBI agents searched his Chestnut Hill home and computer files while investigating him for hacking Lane's emails, copying them and photos, and sending them to newspaper gossip columnists.

In August 2008, Mendte pleaded guilty to a federal felony charge of hacking Lane's emails. Mendte, who is married to 1210 WPHT newscaster Dawn Stensland, said the acts followed the end of a "flirtatious, unprofessional and improper relationship" with Lane.

Mendte was sentenced to six months' house arrest and probation that ended in February 2011.

The scandal derailed both careers. Mendte is now hosting local talk shows on iHeartMedia radio stations in Delaware.

Lane became a morning newscaster at KNBC in Los Angeles, but Rosen said she was terminated in 2013 after a change in station management. Rosen said the station fully bought out the remaining two years of her contract and she lives in Los Angeles with her husband and two children, the younger of whom was born this year.

Lane's original lawsuit against Mendte and CBS has been pared down to a negligence claim against CBS for failing to stop Mendte from hacking Lane's computer and spreading gossip about her. Mendte is representing himself after his lawyer withdrew last year.

CBS lawyers filed the Supreme Court emergency motion after the May 13 hearing when Massiah-Jackson denied their request for a hearing challenging and limiting testimony of forensic computer experts about CBS's in-house data monitoring and security.

CBS lawyers argued that the hearing would result in dismissal of the broadcast giant from the lawsuit and thus avoid trial. Massiah-Jackson said no, citing a civil procedure rule allowing judges to hold such hearings immediately before or during trial.

Massiah-Jackson said she was not bound by Judge Bernstein's pretrial orders, a decision concurred with by Bernstein in his opinion.

CBS lawyers, according to a transcript of the May 13 hearing, never raised with Massiah-Jackson the change of judges or asserted any claims of impropriety in the judicial process.

In arguing for the Supreme Court to dismiss CBS's motion, Rosen said Elliott was obligated to ask Massiah-Jackson to recuse herself on May 13.

"This is to bully, intimidate, defame and harass sitting judges of the Philadelphia Court of Common Pleas into ruling in favor of CBS in a pending pretrial motion," Rosen said.

jslobodzian@phillynews.com 215-854-2985 @joeslobo www.philly.com/crimeandpunishment