By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- A judge has refused to throw out a taxpayer's lawsuit against former Mahoning County Prosecutor James A. Philomena.
The suit was filed in October 2000 by Samuel Moffie of Boardman. It seeks recovery of Philomena's salary and the cash equivalent of health-care benefits he received as prosecutor, as well as all bribes he accepted.
Philomena, 54, pleaded guilty in 1999 to accepting bribes from attorneys to fix cases while he was in office. He is serving a four-year sentence at a federal prison in Alabama. He also faces state charges related to case-fixing and is awaiting trial.
Atty. Stephen R. Garea, who represents Philomena, had filed a motion in November 2000 asking that Moffie's suit be dismissed.
He argued that before a taxpayer's suit can be filed, the county prosecutor must first have been asked to file a suit against the public official and either refused or neglected to do so.
Moffie said in court documents that he did ask Prosecutor Paul Gains to file the suit but was denied. Gains has said that filing such a suit would hinder federal authorities' investigation into the case, and that he'll proceed once the feds are finished.
Ruling: In his written ruling, Visiting Judge Stephen Yarbrough said there is nothing in the law to prevent Moffie from going forward with the suit, even though Gains' suggestion to wait may be the better course of action.
For that reason, he denied Garea's motion to dismiss the suit. Garea said a trial date has not been set.