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Attorney contends ex-Uniontown fire chief convicted of unemployment theft should get new trial
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By Liz Zemba
Published: Wednesday, February 13, 2013, 12:01 a.m.
Updated: Wednesday, February 13, 2013
A former Uniontown fire chief who was convicted of theft and conspiracy should never have been charged under the crimes code, his attorney argued Tuesday before a panel of Superior Court judges.
A Fayette County jury convicted Myron Nypaver, 47, and his wife, Lisa, 43, of the two criminal counts last March.
Prosecutors said the couple collected $16,990 in unemployment benefits on behalf of Myron Nypaver between March 6 and Oct. 2, 2010, but he was ineligible to receive them because he was working.
Myron Nypaver was sentenced to probation. His wife, who was found guilty of access-device fraud, was sentenced to up to two years in prison.
The couple was ordered to pay back $16,990 to the state Department of Labor and Industry.
On Tuesday, attorney Jerome DeRiso asked three Superior Court judges to grant Myron Nypaver a new trial.
He argued charges should be filed under the state's less stringent Unemployment Compensation Act, which carries penalties of only fines and restitution.
DeRiso argued prosecutors should not have charged Myron Nypaver under the crimes code because courts have found that when a law such as the unemployment act has its own “special penal provisions,” those provisions take precedence.
“So, if you fraudulently obtain $100,000 in unemployment benefits, the worst you are going to get is fines and restitution?” Judge Mary Jane Bowes asked.
DeRiso said those were the only penalties state legislators wanted in place when they created the act.
Assistant District Attorney Gene Grimm argued it was appropriate to file criminal charges because Myron and Lisa Nypaver plotted the theft. “I do believe the commonwealth has the discretion to pick and choose in this case because of the conspiracy,” Grimm argued.
Judge Anne E. Lazarus raised concern over the manner in which Fayette Judge Steve Leskinen questioned Myron Nypaver regarding his initial decision not to testify in his own defense.
Lazarus said the trial transcript indicates Leskinen advised Nypaver he had a right for forgo testifying, but “strongly suggested” he do so.
Myron Nypaver initially told Leskinen he would not testify, even after the judge advised him of his rights. Nypaver then changed his mind and opted to take the stand after a 90-minute lunch break.
Grimm said Leskinen spoke with Nypaver at length regarding his initial decision not to testify because he “had a duty to create a record” showing Nypaver “knowingly waived his right” to do so.
He said Nypaver likely elected to testify after consulting with his attorney over lunch, rather than basing his decision on Leskinen's remarks.
During the trial, Myron Nypaver testified his wife knew the four-digit code he needed to file compensation claims and how to use a state-issued debit card because the two filled out the initial unemployment-compensation claim online together.
He testified he had no reason to suspect she would misuse the information. He told jurors he was unaware Lisa Nypaver had retrieved the card from a trash can and used it until a detective questioned the former chief.
Lisa Nypaver testified her husband had no knowledge she filed the claims and was using the card to obtain cash. Although her husband had bent the card in half when he threw it away, it still worked, she said.
The panel, which included Judge Robert Colville, will issue a ruling later.
Liz Zemba is a reporter for Trib Total Media. She can be reached at 412-601-2166 or lzemba@tribweb.com.
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