Potential Civil Lawsuit At Issue In Teacher Trial

November 2, 2018 GMT

WILKES-BARRE — Attorneys litigating the case of a Solomon-Plains Elementary/Junior High School teacher accused of choking a student are sparring over whether the defense can mention a potential civil lawsuit by the student’s family. Brian Jay Fischer, 58, of Mountain Top, is set to stand trial in January on a single misdemeanor count of strangulation alleging he put his hands around a 12-year-old boy’s neck during a confrontation Feb. 9 in the school’s cafeteria. Prosecutors said surveillance video footage shows Fischer’s hands wrapped around the neck of the boy, who then dropped the items he was carrying. But Fischer’s defense has argued he merely put his hands behind the boy’s neck and was not choking him. In a motion filed earlier this week, prosecutors indicated the boy’s family has consulted an attorney about the confrontation and asked Luzerne County Judge Joseph F. Sklarosky Jr. to keep that information out of the trial on grounds that it is irrelevant, prejudicial and would confuse the jury. A response defense attorney Frank W. Nocito filed in court Thursday said the motion, which cited no case law, “must clearly be denied” based upon a Pennsylvania Supreme Court ruling that held such testimony is admissible. The state high court ruled in 1992 that a victim in a shooting case “should have been subjected to cross-examination regarding bias arising from his civil claim” because a criminal conviction would have bolstered a civil lawsuit. “The same motives for testifying in the criminal case as set forth in (the Supreme Court case) are present in this case, and given these same motives, as in (that case) the minor complainant and/or his mother, who would bring suit on his behalf, should be subject to cross-examination in the criminal case regarding bias as to the civil claim,” Nocito wrote. Sklarosky did not immediately rule on the motion, which notes the boy’s family has not yet filed a civil complaint. Fischer, who is suspended without pay, remains free on his own recognizance pending trial. Contact the writer: jhalpin@citizensvoice.com 570-821-2058