Petition — Orloski v. Mellenberg

$190T) oo

82 F _

APR 18 1985

SUPREME COURT OF THE UNITED STATE ot)

NO.

; RICHARD J. ORLOSKI,

Petitioner

vs.

HONORABLE DAVID E. MELLENBERG,

Judge, Court of Common Pleas,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

Thomas J. Calnan, Jr.

a Counsel for Petitioner

CALNAN & ORLOSKI, P.C.

é 446 Linden Street

: Allentown, PA 18102

(215) 435-2727

,

bee

ae

#0

I. WHETHER OR NOT THE FINDING

WITHOUT A HEARING OF DIRECT

CRIMINAL CONTEMPT OF COURT

FOR FAILURE TO APPEAR TIMELY

AT A PRE-TRIAL CONFERENCE IS

A DENIAL OF DUE PROCESS OF

LAW GUARANTEED BY THE FOUR-

TEENTH AMENDMENT WHERE THE

TARDINESS RESULTED FROM

OVERSIGHT CAUSED BY INVOLVE-

MENT IN OTHER COURT BUSINESS?

INDEX

PAGE

(a) Questions Presented For Review..... .

Oy ee Oe Pe. Ce ik eke ck kk ce 1

(a) eis Of Aporities. ................ 2

(d) Official & Unofficial Reports........ a

(oe) Statement cf Jurisdiction............ 3

(£) Constitutional and Statutory

i Sek oh oc oc ccc 3,5

(oe) Statement GF The Case................ 4

(h) Raising Federal Issue Below.......... 16

(i) Arpubent........ ee 17

I. WHETHER OR NOT THE FINDING WITHOUT

HEARING OF DIRECT CRIMINAL CONTEMPT

OF COURT FOR FAILURE TO APPEAR

TIMELY AT A PRE-TRIAL CONFERENCE IS

A DENIAL OF DUE PROCESS OF LAW

GUARANTEED BY THE FOURTEENTH AMEND-

MENT WHERE THE TARDINESS RESULTED

FROM OVERSIGHT CAUSED BY INVOLVE-

MENT IN OTHER COURT BUSINESS?

Oy oe he eek cc ek. 25

ee ee ee ee 26

Pre-Trial Settlement Conference

ee 27

Statement In Absence of Transcript... 29

Memorandum Opinion by Court of Common

Pleas of Lehigh County, Pennsylvania

OE BB nk vac cece wes ba ees sun 41

Judgment & Opinion of the Superior

Court of Pennsylvania of

UN 0 BFE 6 eb ee hes tidecan ccdns 50

Order of Supreme Court of Pennsylvania

Oe Peprrmery FF, ESCs... coc ccc wee acc 61

(a) QUESTION PRESENTED FOR REVIEW

I. WHETHER OR NOT THE FINDING WITHOUT A

HEARING OF DIRECT CRIMINAL CONTEMPT

OF COURT FOR FAILURE TO APPEAR

TIMELY AT A PRE-TRIAL CONFERENCE IS

A DENIAL OF DUE PROCESS OF LAW

GUARANTEED BY THE FOURTEENTH

AMENDMENT WHERE THE TARDINESS RE-

SULTED FROM OVERSIGHT CAUSED BY

INVOLVEMENT IN OTHER COURT

BUSINESS?

(b) LIST OF PARTIES

Petitioner:

Richard J. Orloski, represented by

Thomas J. Calnan, Jr. of Calnan & Orloski,

P.C.

Respondents:

Honorable David E. Mellenberg, represented

by Howland W. Abramson

Kevin J. Walakovits, represented by

William G. Ross, of Sigmon & Ross.

(c) TABLE OF AUTHORITIES

PAGE

Cooke v. U.S. 267 U.S. 517, 45 S.Ct.

390, 69 L.Ed. 767 (1922)... eeeeeees 20

Ex Parte Bradley 7 Wall. 364, 19 L.Ed.

ZLS ChPOO cc cccocvecceececes (veukeae aes 19

Ex Paste Terry 128 U.S. 289, 9 S.Ct.

77, 32 LeEd 405 (1888)... eee eeeeeees 21

Groppi v. Leslie 404 U.S. 496, 92 S.Ct.

Say, 40 4.60420 632 CL9T1L) woccewecess 20

Harris v. U.S. 382 U.S. 162, 86 S.Ct.

352, LD L.bd.2d 240 (1965)... eeeeeee y |

Holt v. Virginia 381 U.S. 131, 136

35 5.0t. £375 14 L.Ed.2d 290 (1965)...19

In Bo Oliver 333 U.S. 257, 273S.ceccevees 19

Johnson v. Mississippi 403 U.S. 212, 19

Sr oc ce. fire, 29 u.bd.2d 423 €1972)..

Taylor v. Hayes 418 U.S. 488, 94

Scr. 2601. 61 L.Ed.2d 897 (1976)..... 20

(d) OFFICIAL & UNOFFICIAL REPORTS

Medve v. Walakovits (Appeal of Orloski),

39 Leh.L.J. 281, affirmed Pa.Sup. :

A.2d (1982).

(e) STATEMENT OF JURISDICTION

The final judgment of the Supreme Court

of Pennsylvania denying leave to appeal was

rendered and then entered on February i/7,

1983, and the Petition For Writ Of Certiorari

is timely filed within ninety (90) days

thereof. The jurisdiction of this Court

rests upon Rule 20.4 of the Rules of the

Supreme Court, and 28 U.S.C. §2101(c).

(£) CONSTITUTIONAL & STATUTORY PROVISIONS

" ..nor shall any State deprive

any person of life, liberty or

property, without due process of

La. ss”

Fourteenth Amendment to the

U.S. Constitution

"CLASSIFICATION OF PENAL CONTEMPT

The power of the several courts of this

Commonwealth to issue attachments and to

inflict summary punishments for contempt

of court shall be restricted to the fol-

lowing cases.

kk *

\ (2) Disobedience or neglect by officers,

parties, jurors or witnesses of or to the

lawful process of the ccurt."

42 Pa. C.S.A. §4131(2)

(g) STATEMENT OF THE CASE

The Petitioner, Richard J. Orloski, was

counsel of record for Plaintiff in Medve v.

Walakovits No. 80-C-1431. He is a graduate of

King's College, Wilkes-Barre, Pennsylvania and

Cornell Law School, Ithaca, New York. Peti-

tioner is admitted to the practice of law in

? Pennsylvania and Michigan. Additionally, he is

a member of the Bar of this Honorable Court,

United States Court of Appeals, Third Circuit,

and the United States District Court for the

Eastern and Middle Districts. Specifically, it

is the case Black v. Stevens No. 77-1934 in the

United States District Court for the Eastern

District of Pennsylvania, the Honorable Daniel

J. Huyett found that Richard J. Orloski is

she

TT <<<

"an active practioner in Federal Court..." and

the Judge found that Richard J. Orloski's

work was consistently "excellent and of high

quality." He further noted that his work was

" .of a high quality, responsive, timely and

accurate, and oft times, persuasive."

Petitioner has served as a Law Clerk to

the Michigan Court of Appeals, as a Deputy

Attorney General for the Commonwealth of Penn-

sylvania, and as an Assistant District At-

torney of Lehigh County, Pennsylvania. On

May 19, 1981, he was associated in the private

practice of law with Stamberg, Caplan and

Calnan, but was in the process of joining a

new firm, Calnan & Orloski, a Professional

Corporation.

On May 19, 1981, Petitioner was scheduled

to appear before the Honorable David E.

Mellenberg at 10:15 A.M. for a pre-trial set-

tlement conference in Medve v. Walakovits,

supra. The initiative for placing the matter

on the pre-trial conference list came from

Petitioner by virtue of his Certificate of

-5-

Readiness dated September 5, 1980. The Medve

case involved a claim by Plaintiff for person-

al injuries which resulted from an automobile

accident caused by a drunk driver.

In the professional judgment of Petitioner,

the case was an excellent one for a jury trial

in that he believed that he could prove without

a doubt that the Defendant was intoxicated

while driving, and that this caused Plaintiff's

injuries. Prior to the settlement conference,

the parties were at an impasse of $35,000.00

demand/$7,500.00 offer, and Petitioner was

anxious to attend the pre-trial settlement

conference so that the matter could proceed

to trisi.

According to the diary of Petitioner, he had

only two matters scheduled for May 19, 1981:

1) a juvenile conference in the Courthouse at

9:30 A.M.; and 2) the pre-trial settlement

conference in Medve at 10:15 A.M. Prior to

arriving at the courthouse, Petitioner and his

wife voted, since Tuesday, May 19, 1981 was

primary election day. Thereafter, he proceeded

o>

directly to his office. Petitioner arrived

at his office at approximately 9:15 A.M.

where he met his clients, and proceeded di-

rectly to the courthouse.

Petitioner timely arrived at the juvenile

pre-hearing conference at 9:30 A.M. before

Probation Officer Gary Delong. After the

conference in the Juvenile Probation Office,

Petitioner proceeded with his clients to the

front entrance of the courthouse where he ad-

vised his clients the next steps involved in

the juvenile procedure, and they departed

while he remained inside the courthouse. Al-

though he did not check the time after the

conference, his best estimate is that the

conference concluded, and his clients departed

between 10:00 A.M. and 10:05 A.M.

Immediately thereafter, while Petitioner

was still in the front corridor of the court-

house, he met W. Hamlin Neely, Esquire, who

was representing Plaintiff in the case of

Schwenk v. Oakes & Dierolf No. 80-C-1007, in

which Petitioner was representing the Defen-

ae a

dants. The case of Schwenk v. Oakes & Dierolf

was scheduied for a pre-trial conference on

Friday, May 22, 1981 before the Honorable Max-

well Davison at 10:30 A.M., and there was some

question about whether or not it was properly

on the jury trial list. Petitioner and W.

Hamlin Neely, Esquire, agreed that the case

should be stricken from the jury trial list and

be placed on the arbitration list. Rather than

delay Judge Davison on Schwenk v. Oakes &

Dierolf, Petitioner suggested that he and Mr.

Neely go immediately to the Court Administrator's

office and have it stricken from the list.

Petitioner and Mr. Neely arrived at the Court

Administrator's Office, but when they arrived,

neither the Court Administrator, Daniel Sabetti,

nor the Deputy Court Administrator, Susan

Schellenberg, were present. The secretary in

the Court Administrator's Office indicated that

they would have to wait for the Administrator

or his Deputy, which they did. According to

his recollection, the Deputy Court idministrator

arrived shortly thereafter, and counsel then

ce.

(OPES STRSTR LS DORE T A a EADS OPO ORL OPO CERES See ice ERT RRS ne REE CRAM NA Pe ANY SOM oe NEN MEM RG Re Ne Fem TCR oN CCTM RRR N Ne ah

arranged for the Schwenk v. Oakes & Dierolf

case to be stricken from the list.

The Court Administrator's Office is lo-

cated on the fourth floor of the courthouse.

From there, Petitioner immediately proceeded

down the stairwell in order to pick up his

file at his law office in the Medve case.

While Petitioner was proceeding downstairs

somewhere in the first floor area, he glanced

at his watch and noticed that it was approxi-

mately 10:25 A.M., and that he was running

late for the Medve pre-trial settlement con-

ference. As soon as he noticed that he was

late, Petitioner immediately reversed posi-

tions, and ran--not walked--up five flights of

stairs to the room where Judge Mellenberg

was holding settlement conferences. When

Petitioner arrived at the fifth floor, he

opened the door and saw William Ross, Esquire,

Counsel for the Defendant, outside the con-

ference room talking with another lawyer who

was unknown to him. His subsequent investi-

gation has revealed that this unknown lawyer

-9-

was R. March, Esquire, who was waiting for the

10:45 A.M. settlement conference.

When Petitioner arrived at the fifth floor,

he was out of breath, and he walked past

William Ross, Esquire, without interrupting his

conversation. He immediately proceeded to sit

down on a chair in the corridor where, by hap-

chance, a newspaper was strewn about. He

picked up the newspaper, straightened it out,

and then began reading the financial page. As

he was reading the financial page, he could see

directly in front of him about ten yards away,

William Ross, Esquire, who was still talking to

R. March, Esquire.

At some point, Petitioner noticed that

William Ross, Esquire, counsel for the Defendant,

was heading toward the exit. When he noticed

William Ross, Esquire, Petitioner called to him

and asked if he--or someone else--was going to

be handling the Medve_ pre-trial conference.

It was then that Petitioner learned for the

first time--about 10:35 A.M.--that the Medve

case was stricken.

at@e

When Petitioner called to William Ross,

Esquire, Ross stopped, told him that he had

already missed the settlement conference, and

then Petitioner and Ross proceeded into the

Judge's conference room. When he walked into

the pre-trial conference room, Petitioner

observed William Ross's law partner, Jackson

Sigmon, Esquire, sitting there alone with

the Honorable David E. Mellenberg, and his

court reporter, Nellie Zweifel. When

Petitioner arrived inside, the 10:30 A.M.

pre-trial conference had not yet begun, and

as fate would have it, it would be cancelled

for the failure of Plaintiff's counsel, John

Segata, Jr., Esquire, to appear.

When Petitioner arrived inside, he apolo-

gized to the Court for his tardiness, advised

the Court that he lost track of time because

he was working on another matter in the Court

Administrator's Office, and advised the Court

that he would do whatever the Court wished,

i.e., proceed with the settlement conference

since everyone was there, or proceed to get

wits

it relisted. Judge Mellenberg then told him

that Mr. Sigmon advised him that, in Northampton

County, lawyers are held in contempt for their

absences, that he had planned to hold him in

contempt for not coming, but since he appeared

with an explanation, he would not hold him in

contempt.

Judge Mellenberg further advised Petitioner

that he would not hold the settlement confer-

ence because of his tardiness, and that he was

striking the case from the trial list commencing

Tuesday, May 26, 1981.

Petitioner accepted Judge Mellenberg's deci-

sion to strike the case from the list without

complaint, and then proceeded back down to the

Court Administrator's Office to get the case

relisted. Petitioner then proceeded back to

his office where he confirmed, in writing, the

fact that the case was stricken, and that the

case had to be re-listed. See, copy of letter

of May 19, 1981 to Daniel Sabetti, Esquire,

with copies to the Honorable David E. Mellen-

berg, William Ross, Esquire, and Peter Medve.

a3.

attached as Exhibit C to Statement In Absence

of Transcript. The reason for the prompt

notice to the Court Administrator was because

Petitioner was anxious to get the case through

the pre-trial settlement conference and then

to trial. Petitioner never intentionally

failed to appear at the pre-trial settiement

conference which he wanted. Instead, because

he was conducting other court business,

Petitioner lost track of time and appeared

late for the pre-trial settlement conference.

His lateness was compounded by the fact that

he mistakenly assumed that the pre-trial list

was running late when he arrived at about

10:25 A.M. and saw William Ross, Esquire, out-

side the conference room conversing with R.

March, Esquire. If Petitioner had realized

that the case was already stricken, he would

not have sat down to wait for his turn, and

instead, he would have immediately proceeded

to the pre-trial conference room.

Sometime in the afternoon on May 20, 1981,

Petitioner received a telephone call from

Be ie

Gary Mantz, a newspaper reporter for the

Allentown Call-Chronicle, who advised him that

the court was holding him in contempt of court

for his tardiness. On Friday, May 22, 1981,

Petitioner met with Judge Mellenberg who

showed him the Order which he had signed

holding Petitioner in contempt of court for

his failure to appear.

Petitioner filed a Notice of Appeal from

the Order of May 19, 1981. Thereafter,

Petitioner filed under oath a Statement In

Absence Of Transcript Pursuant to Rule 1923 of

Pa. R.C.P. Judge Mellenberg filed a Counter-

statement in response to Petitioner's state-

ment.

On October 1, 1982, the Superior Court of

Pennsylvania affirmed the finding of Contempt

without a hearing under the exceptions at 42

Pa.C.S.A. §4131 as one of direct criminal con-

tempt without a hearing. Petitioner then time-

ly sought permission to file an appeal with the

Supreme Court of Pennsylvania... On February l?,

1983, the Supreme Court of Pennsylvania denied

Be

the Petition for Allowance of Appeal. The

matter is now before this Court on

Petitioner's Petition For Writ of Certiorari

to this Honorable Court.

(h) RAISING FEDERAL ISSUE BELOW

In Appellant's Statement Of Issues,

attached to the Notice of Appeal, Petitiouer

wrote as follows:

T. WHETHER OR NOT THE ORDER OF MAY 19,

1981 SUMMARILY HOLDING AN ATTORNEY

IN CONTEMPT OF COURT WITHOUT NOTICE

TO THE ATTORNEY OR WITHOUT ANY OP-

PORTUNITY TO PRESENT A DEFENSE IS

A DENIAL OF DUE PROCESS OF LAW

GUARANTEED BY THE DUE PROCESS

CLAUSE OF THE PENNSYLVANIA AND

UNITED STATES CONSTITUTIONS?

In response to the Statement of Issues,

the trial court wrote a Memorandum Opinion

dated July 10, 1981 that, under 42 Pa.C.S.A.

§4131, supra, the Court has the authority to

summarily impose a penalty for criminal con-

tempt of court. The Superior Court of Penn-

sylvania affirmed the summary punishment for

direct criminal contempt of court relying

again on 42 Pa.C.S.A. §4131. The matter was

never reviewed by the Supreme Court of Penn-

sylvania which refused to grant the Petition

For Allowance Of Appeal.

(i) ARGUMENT

I. WHETHER OR NOT THE FINDING WITHOUT A

HEARING OF DIRECT CRIMINAL CONTEMPT

OF COURT FOR FAILURE TO APPEAR TIMELY

AT A PRE-TRIAL CONFERENCE IS A DENIAL

OF DUE PROCESS OF IAW GUARANTEED BY

THE FOURTEENTH AMENDMENT WHERE THE

TARDINESS RESULTED FROM OVERSIGHT

CAUSED BY INVOLVEMENT IN OLTHEK COUKIL

BUSINESS?

1. The Petitioner is a respected member of

the bar. The Petitioner is a graduate of

Cornell Law School and is admitted to the prac-

tice of law in Pennsylvania and Michigan. He

is a member of the bar of this Court, and the

United States Court of Appeals, Third Circuit,

and the United States District Court for the

Eastern and Middle Districts of Pennsylvania.

In the case of Black v. Stephens, et al., No.

77-1834, in the United States District Court

for the Eastern District of Pennsylvania, the

Honorable Daniel J. Huyett commented on

Petitioner's reputation in the legal community

prior to awarding attorney's fees after a

successful verdict in a civil rights action

where Petitioner was counsel. On January 21,

1982, the Honorable Daniel J. Huyett observed

as follows:

eee

"T have taken into account Mr.

Orloski's reputation in civil

litigation as well as the

quality of his work which in

this case has been consistently

excellent and of high quality...

May I say that I have had Mr.

Orloski in other cases. He is

an active practitioner in the

Federal court and at all times,

I have found his work of a very

high quality, and certainly that

was true in this case.

kk *

The work of Plaintiff's trial

counsel was excellent. Mr.

Orloski's pleadings were of

a high quality, responsive,

timely and accurate, and oft

times, persuasive."

In addition to being an active practi-

tioner, Petitioner is the author of a book

entitled "Criminal Law: An Indictment"

(Nelson-Hall, Chicago, 1976), and two law

review articles: "Religious Discrimination

In Selection Of Trustees: The Nexus Test

Of Coleman Foundation" 36 Un. ef PItt.. be.

325 (1974); and "The Civil War Amendments"

49 St. Jotn's L.R. 493 (1975). Hence, on

the record before this Court, the only ques-

tion is whether or not an attorney who loses

track of time and is accidentally late for a

pre-trial conference because of involvement

«th.

with other court business, can be subjected

to summary punishment for direct criminal

contempt without a hearing or an opportunity

to be heard.

2. Due Process means notice of the charges

and the right to be heard. As early as 1868,

this Honorable Court went on record holding that

an attorney could not, consistent with Due Pro-

cess of Law, be found in criminal contempt of

the court without notice of the charges and an

opportunity to be heard. Ex parte Bradley

7 Wall. 364, 19 L.Ed 214 (1968). Again, in

Holt v. Virginia 381 U.S. 131 136, 85 S.Ct.

1375, 14 L.Ed.2d 290 (1965), this Court re-.

versed and discharged a finding of direct crim-

. inal contempt holding that "...it is settled

that due process and the Sixth Amendment

guarantee a defendant charged with contempt

such as this 'an opportunity to be heard in

his own defense--a right to his day in court~--

_..and to be represented by counsel.' In re

Oliver 333 U.S. 257, 273." See, also, Johnson

vy. Mississippi 403 U.S. 212, 91 S.Ct. 1778-29

«195

L.Ed.2d 423 (1971). Specifically, this Court

has held that summary punishment for contempt

without notice and without an opportunity to

be heard is inconsistent with the constitu-

tional obligation imposed by the Due Process

Clause of the Fourteenth Amenciment to the

United States Constitution. Taylor v. Hayes

418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897

(1974); Groppi v. Leslie 404 U.S. 496, 92 S.

pe. $62, 30 L.Bd.2d 632 (i971).

3. Summary punishment in contempt is

only permissible where contempt occurs in the

court's presence, and involves "exceptional

circumstances". As observed by this Court

in Harris v. United States 382 U.S. 162, 86 S.

Ct. 352, 15 L.Ed.2d 240 (1965), the power to

punish summarily even direct contemptuous

behavior is reserved for exceptional circum-

stances, such as, threatening the judge or

disrupting a hearing, where speedy punishment

may be necessary to achieve vindication of

the court's dignity and authority. See,

Cooke v. United States 267 U.S. 517, 45 S.Ct.

-20-

Ce. 390, 69-L.&d 767 (1922), and Ex parte

terry, i26 U.S. 269, 9 S.Ct. 77, 32 L.Ed 405

(1888). Absent such exceptional circumstances

and the need for swiftness, even contemptuous

behavior in the actual presence of the court

cannot be punished summarily. Harris v.

United States, supra.

4. <A summary finding of contempt without

notice of the charges and the opportunity to be

heard was constitutionally infirm. On May 19,

1981, the Honorable David Mellenberg found the

Petitioner in contempt of court. After Peti-

tioner filed an appeal to the Superior Court of

Pennsylvania that he was challenging the find-

ing made in absentia, the trial court attempted

to justify the imposition of summary punishment

without notice of the charges and without an

opportunity to be heard as justified for

"> .smooth administration of a sophisticated and

crowded court calendar...'"' In order to give

the appellate tribunals an insight into the

reason for his tardiness, Petitioner filed a

Statement In Absence Of Transcript Pursuant To

OT

Rule 1923 of Pa. R.A.P. wherein he detailed

the fact that he was involved in other court

business at the time of the pre-trial con-

ference, and that he inadvertently lost

track of time. Given the benefit of these

facts, the Superior Court of Pennsylvania

noted that "...Orloski also lacks the deli-

berate, conscious decision to be late..."

Despite this finding, the Superior Court of

Pennsylvania affirmed the procedure--and the

finding of contempt--as a necessary ingredi-

ent to the "...efficient operation of their

court calendar."

It is not contested that the court's have

inherent powers to establish rules of pro-

cedure governing the administration of this

case book, and may adopt procedures involving

fines for non-appearance, or tardiness. That,

however, was not done here.

The lower court labeled as "contemptuous"

Petitioner's failure to appear on time, and

justified its finding by branding it "direct

criminal contempt.'' The Superior Court of

Re i

Pennsylvania found the element of intentional

disobedience lacking, but affirmed the finding

of direct criminal contempt by noting that in-

volvement in other court business can be

characterized as recklessness for the purpose

of inferring the necessary element of conscious

to justify a finding of intentional misbehavior.

Yet the procedure used in reaching this result

remains constitutionally inform. The Petitioner

was never given notice of the charges, nor an

opportunity to be heard. His tardiness, though

now explained, has been labeled contemptuous,

and rationalized as direct criminal contempt.

The trial judge notes that he imposed a "nomi-

nal fine". That, however, is not the issue.

If not reversed, the Petitioner must bear the

weight of a finding of direct criminal contempt

of court for the remainder of his professional

career. For a lawyer who has dedicated his

life to litigation, and respect for the orderly

process of law, the finding of direct criminal

contempt is a stigma in an otherwise unblemished

professional career. A father who is behind

on his child support payments is given notice

22.

~ -

of the charges, and an opportunity to defend.

If the court finds disobedience to the court

ordered support, the man is given the op-

portunity to purge himself of contempt by

making a payment towards the arrearages. The

Petitioner in the case at bar has not been

given the niceties of procedural due process.

Payment of the "nominal fine" will not purge

the Petitioner of the finding of contempt,

ubut is merely acceptance of the "punishment"

imposed by the court. The stigma of in-

tentionally--or recklessly--violating an order

of court because of explained tardiness will

survive the payment of the fine. Hence,

the imposition of this sentence must be

carefully scrutinized. When such a review

is made, it is obvious that the requirements

of notice of the charges and an opportunity

to be heard were wholly wanting. As such,

the procedures employed were in violation

of the Due Process requirements of the

Fourteenth Amendment.

Pie

(j}) CONCLUSION

For the foregoing reasons, the Petition

For Writ Of Certiorari ought to be granted.

CALNAN & ORLOSKI, P.C.

a gi

Pn

_—

Oe:

_— omas J. UCainan, Jr.

ttorney for Appellant

-25-

IN THE COURT OF COMMON PLEAS OF LEHIGH CO.,PA.

CIVIL DIVISION

PETER J. MEDVE,

Plaintiff

)

) NO. 80-C-1431

vs. )

)

)

KEVIN J. WALAKOVITS,

Defendant.

PRE-TRIAL SETTLEMENT CONFERENCE

ORDER

At a settlement conference scheduled May

19, 1981 at 10:15 A.M. at which Richard

Orloski, Esquire, counsel for plaintiff failed

to appear, and at which William G. Ross, Es-

quire, counsel for defendant appeared as

scheduled, the Court having determined that

such non-appearance is in contempt of Court,

IT IS ORDERED that Richard Orloski shall

pay the sum of $50.00 to William G. Ross,

Esquire, counsel for the defendant who ap-

peared as scheduled. That the Court shall be

notified of compliance with this order im-

mediately.

IT IS FURTHER ORDERED that the within

matter be stricken from the trial list and

nt 3

Ee men

shall not be rescheduled for trial until

such time as an effective settlement

conference can be held.

BY THE COURT:

/S/ DAVID E. MELLENBERG

DAVID E. MELLENBERG, JUDGE

IN THE COURT OF COMMON PLEAS OF LEHIGH CO.,PA.

PETER J. MEDVE,

Plaintiff > MD. 80-0-143)

Vs. :

KEVIN J. WALAKOVITS,

Defendant : SUPERIOR COURT

(APPEAL OF RICHARD J. ORLOSKI } “9:

Counsel for Plaintiff from : 1383, Phila.

Contempt Of Court Order) : 1981

STATEMENT IN ABSENCE OF TRANSCRIPT

PURSUANT TO RULE 1923 OF PA. R.A.P.

COMMONWEALTH OF PENNSYLVANIA _)

, Se:

COUNTY OF LEHIGH )

I, RICHARD J. ORLOSKI, being duly sworn

according to law, depose and say as follows:

1. I was counsel of record for Plaintiff

in Medve v. Walakovits No. 80-C-1431.

2. I ama graduate of King's College,

Wilkes-Barre, Pennsylvania, and Cornell Law

School, Ithaca, New York.

3. I am admitted to the practice of law

in Pennsylvania and Michigan, and, in addition,

I am a member of the Bar of the Supreme Court

of the United States; United States Court of

Appeals, Third Circuit; and the United States

District Court for the Eastern and Middle

Districts.

4. I have served as a Law Clerk to the

Michigan Court of Appeals, as a Deputy At-

torney General for the Commonwealth of Penn-

sylvania, and as an Assistant District

Attorney of Lehigh County, Pennsylvania.

: 5. On May 19, 1981, I was associated in

the private practice of law with Stamberg,

Caplan and Calnan, but was in the process of

joining a new firm, Calnan & Orloski, A

Professional Corporation.

6. On May 19, 1981, I was scheduled to

appear before the Honorable David E.

Mellenberg at 10:15 A.M. for a pre-trial

settlement conference in Medve v. Walakovits

supra. See, copy of Pre-Trial Settlement

Conference list attached hereto as Exhibit A.

4, Said copy was supplied to me by the Court

Administrator's Office, and the handwritten

notations thereon were made by court person-

nel.

7. The initiative for placing the matter

on the pre-trial conference list came from

«30s

me by virtue of my Certificate of Readiness

dated September 5, 1980 which is attached here-

to as Exhibit B.

8. The Medve case involved a claim by

Plaintiff for personal injuries which resulted

. from an automobile accident caused by a drunk

driver.

9. In my professional judgment, the case

was an excellent one for a jury trial in that

I believed that I could prove without a doubt

that the Defendant was intoxicated while dri-

ving, and this caused Plaintiff's injuries.

10. Prior to the settlement conference,

the parties were at an impasse of $35,000.00

demand/$7,500.00 offer, and I was anxious to

attend the pre-trial settlement conference so

that the matter could proceed to trial.

11. According to my diary, I had only two

matters scheduled for May 19, 1981: 1) a juve-

nile conference in the Courthouse at 9:30 A.M.

and 2) the pre-trial settlement conference in

Medve at 10:15 A.M.

12. Prior to arriving at the Courthouse,

my wife and I voted since Tuesday, May 19,

1981 was primary election day, and then I

went directly to my office.

13. 1 arrived at my office at approxi-

mately 9:15 A.M, where I met my clients, and

proceeded directly to the Courthouse.

14. I timely arrived at the juvenile

pre-hearing conference at 9:30 A.M. before

Probation Officer Gary DeLong.

15. After the conference in the

Juvenile Probation Office, I proceeded with

my clients to the front entrance of the

Courthouse where I advised them the next

steps involved in the juvenile procedure,

and they departed while I remained inside

the Courthouse. Although I did not check

the time after the conference, my best

estimate is that the conference concluded,

and my clients departed between 10:00 A.M.

and 10:05 A.M.

442

16. Immediately thereafter, while I was

still in the front corridor of the Courthouse,

I met W. Hamlin Neely, Esquire, who was repre-

senting Plaintiff in the case of Schwenk v.

Oakes & Dierolf No. 80-C-1007 while I was

representing the Defendants.

17. The case of Schwenk v. Gakes &

Dierolf was scheduled for a pre-trial confer-

ence on Friday, May 22, 1981 before the

Honorable Maxwell Davison at 10:30 A.M., and

there was some question about whether or not

it was properly on the jury trial list.

18. W. Hamlin Neely, Esquire, and lI

agreed that the case should be stricken from

the jury trial list and be placed on the arbi-

tration list.

19. Rather than delay Judge Davison on

Schwenk v. Oakes & Dierolf, I suggested that

Mr. Neely and I go immediately to the Court

Administrator's Office and have it stricken

from the list.

20. Mr. Neely and I arrived at the

Court Administrator's Office, but when we

arrived, neither the Court Administrator

Daniel Sabetti, nor the Deputy Court Ad-

ministrator Susan Schellenberg were present.

21. The secretary in the Court Ad-

ministrator's Office indicated that we would

have to wait for the Administrator or his

Deputy, which we did.

22. According to my recollection, the

Deputy Court Administrator arrived shortly

thereafter, and we then arranged for the

Schwenk v. Oakes & Dierolf case to be

stricken from the list.

23. The Court Administrator's Office

is located on the Fourth Floor, and I then

proceeded down the stairwell in order to

pick up my file at my law office in the

Medve_ case.

24. While I was proceeding downstairs

somewhere in the first floor area, lI

glanced at my watch and noticed that it was

sShn

approximately 10:25 A.M., and that I was run-

ning late for the Medve pre-trial settlement

conference.

25. As soon as I noticed that I was late,

I immediately reversed positions, and ran--

not walked--up five flights of stairs to the

room where Judge Mellenberg was holding settle-

ment conferences.

26. When I arrived at the fifth floor, I

opened the door and saw William Ross, Esquire,

counsel for the Defendant, outside the con-

ference room talking with another lawyer who

was then unknown to me.

27. My subsequent investigation has re-

vealed that this unknown lawyer was R. March,

Esquire, who was waiting for the 10:45 A.M.

settlement conference.

28. When I arrived at the fifth floor,

I was out of breath, and I walked past William

Ross, Esquire, without interrupting his con-

versation.

“3S

29. 1 immediately proceeded to sit down

on a chair in the corridor where, by hap-

chance, a newspaper was strewn about.

30. I picked up the newspaper,

straightened it out, and then began reading

the financial page.

31. As I was reading the financial page,

I could see directly in front of me about

ten yards away, William Ross, Esquire, who

was still talking to R. March, Esquire.

32. At some point, I noticed that

William Ross, Esquire, counsel for the De-

fendant, was heading toward the exit.

33. When I noticed William Ross, Es-

quire, I called to him and asked if he--or

someone else--was going to be handling the

Medve pre-trial conference.

34. It was then that I learned for the

first time--about 10:35 A.M.--that the

Medve case was stricken.

35. When I called to William Ross, Es-

quire, he stopped, told me that I had al-

ready missed the settlement conference, and

ey a

then he and I proceeded into the judge's

conference room.

36. When I walked into the pre-trial

conference room, I observed William Ross's

;aw partner, Jackson Sigmon, Esquire sitting

there alone with the Honorable David E.

Mellenberg, and his court reporter, Nellie

Zweifel.

37. When I arrived inside, the 10:30 A.M.

pre-trial conference had not yet begun, and as

fate would have it, it would be cancelled for

the failure of Plaintiff's counsel, John

Segata, Jr., Esquire, to appear.

38. When I arrived inside, I apologized to

the court for my tardiness, advised the court

that I lost track of time because I was work-

ing on another matter in the Court Adminis-

trator's Office, and advised the court that lL

would do whatever the court wished, i.e.,

proceed with the settlement conference since

everyone was there, or proceed to get it re-

listed.

Ray Ft

39. The judge then told me that Mr.

Sigmon advised him that, in Northampton County,

lawyers are held in contempt for their ab-

sences, that he had planned to hold me in

contempt for not coming, but since I appeared

with an explanation, he would not hold me in

contempt.

40. Judge Mellenberg further advised me

that he would not hold the settlement con-

ference because I was late, and that he was

striking it from the trial list commencing

Tuesday, May 26, 1981.

41. I accepted Judge Mellenberg's de-

cision to strike the case from the list with-

out complaint, and then proceeded back down

to the Court Administrator's Office to get

the case re-listed.

42. 1 proceeded back to my office where

I confirmed, in writing, the fact that the

case was stricken, and that the case had to be

re-listed. See, copy of letter of May 19,

1981 to Daniel Sabetti, Esquire, with copies

to the Honorable David Mellenberg, William

= 98%

Ross and Peter Medve, attached hereto as

Exhibit C.

43. The reason for my prompt notice to

the Court Administrator was because I was anx-

ious to get the case through the pre-trial

settlement conference and then to trial.

44. I never intentionally failed to appear

at the pre-trial settlement conference which I

wanted, but rather because I was conducting

other court business, I lost track of time and

appeared late for the pre-trial settlement con-

ference,

45. My lateness was compounded by the fact

that I mistakenly assumed that the pre-trial

list was running late when I arrived at about

10:25 A.M. and saw William Ross, Esquire out-

side the conference room conversing with R.

March, Esquire. If I had realized that the

case was already stricken, I would not have sat

down to wait for my turn, and I would have inm-

imediately proceeded to the pre-trial confer-

ence room.

46. Somet ime in the afternoon on May 20,

30.

1981, I received a telephone call from

Gary Mantz, a newspaper reporter for the

Allentown Call-Chronicle, who advised me that

the court was holding me in contempt of

court for my tardiness.

47. On Friday, May 22, 1981, I met with

Judge Mellenberg who showed me the Order which

he had signed holding me in contempt of court

for my failure to appear.

/S/ Richard J. Orloski

RICHARD J. ORLOSKI

SWORN TO and Subscribed

before me this 5th day

if August, 1981.

/S/ Loretta Johnson

Notary Public

Notary Seal

-40-

COURT OF COMMON PLEAS OF LEHIGH COUNTY

CIVIL ACTION - LAW

PETER J. MEDVE, )

Plaintiff )

vs. )

KEVIN J. WALAKOVITS, )

) JUL 10, 2:47 PM’Sl

Defendant

CLERK OF COURTS

APPEAL OF RICHARD J. ORLOSKI, CIVIL, LEHIGH

Counsel for Plaintiff from COUNTY

Contempt Of Court Order)

kok *

NO. 81-C-1431

FILED

APPEARANCES:

Stuart T. Shmookler, Esquire, on Behalf

of Appellant, Richard J. Orloski

kk *

DAVID E. MELLENBERG, Judge.

This Court held Appellant, Richard J. Or-

loski, Esquire, on May 19, 1981, in contempt,

and imposed a nominal fine for failing to ap-

pear at a pre-trial settlement conference

scheduled in the above-captioned matter in

which he is counsel of record for the plaintiff.

Appellant is an officer of this court with of-

fices in Allentown, Lehigh County, Pennsylvania.

Appellant's appeal to the Superior Court from

the contempt order necessitates this

Sess

Memorandum Opinion}.

Appellant was scheduled to attend a pre-

trial settlement conference at 10:15 A.M. on

May 19, 1981; one of 18 such conferences

scheduled at fifteen minute intervals.

tthe Court is aware that when the summary con-

tempt power is exercised, a summary opportun-

ity to adduce evidence is customary, Common-

wealth v. Stevenson 482 Pa.Super.Ct. 76, 393

A.2d 386 (1978), and that the Court may re-

consider a contempt order upon petition by the

appellant, Pa.R.A.P. 1701(c); however,

appellant chose to directly appeal to the

Superior Court citing certain facts in his

statement of the issues. The Rules of

Appellant Procedure do not provide for the

court to sua sponte grant a reconsideration

hearing.

Opposing counsel, William Ross, Esquire, was

in attendance at the appointed time. Appellant

failed to arrive at the scheduled time and had

not informed the Court beforehand of any diffi-

culty that would affect his attendance at the

scheduled conference. The Court held the

appellant in contempt and ordered that he pay

a Fifty-Dollar ($50.00) fine to opposing coun-

sel.

With Attorney Jackson Sigmon present for

the next scheduled conference at 10:30 A.M.,

the appellant appeared, and indicated to the

Court that he had been in the Court Administra-

tor's Office arranging with counsel in another

case to have that case stricken from the pre-

trial list. In response, the Court indicated

that it might vacate the contempt order already

issued after having an opportunity to consider

appellant's explanation. Upon reflection of the

explanation submitted by appellant, the Court

ch ye

refused to vacate the order.

Appellant argues in support of his appeal

that his conduct was not contemptuous and that

in any case, summary imposition of a fine by

the court is improper as a violation of due

process. Appellant's due process argument

assumes that the nature of appellant's con-

tempt is civil; however, there is nothing in-

herent in a contemptuous act or refusal to act

which classifies that act as "criminal" or

"civil". Commonwealth v. Strickler 481 Pa.

579, 393 A.2d 313 (1978). The distinguishing

characteristic between contempts is the domi-

nant purpose for which the court holds the

individual in contempt. Commonwealth v.

Charlette, 481 Pa.Super.Ct. 22, 391 A.2d 1296

(1978); Commonwealth Acting by Kane v. Flick,

33 Pa. Commw. Ct. 553, 382 A.2d 762 (1978).

“The pre-trial settlement conference at 10:30

A.M. which followed appellant's scheduled con-

ference, resulted in a similar contempt order

being issued to another attorney for failing

to appear as scheduled.

whkhs

When the dominant purpose of the court is

to punish the individual for disobedience

which is an affront to the dignity and author-

ity of the court, the contempt is criminal.

Cahalin v. Goodman, Pa.Super.Ct. 421

A.2d 696 (1980). Where the conduct occurs in

the presence of the court, the criminal con-

tempt is direct; where the misconduct may have

a more remote impact on the dignity of the

court, the criminal contempt is indirect.

Commonwealth f. Fladger 250 Pa.Super.Ct. 36,

378 A.2d 440 (1978).

The law has long recognized the need to pro-

vide the courts with power to impose summary

punishment for such conduct in appropriate

situations. Commonwealth v. Stevenson 482 Pa.

16, 393 A.2d 386 (1978). This recognition is

based on the need for immediate penal vindica-

tion of the dignity of the court. Cooke v.

United States 267 J.S. 517, 45 S.Ct. 390, 69

L.Ed 767 (1925). The power to,punish for con-

tempt is not derived from statute but inherent

in the court, Stevenson, supra. However, the

cas

legislature has sought to regulate the manner

of the exercise of the power of summary con-

tempt. Section 4131 of the Judicial Code?

states that the power of the court to inflict

summary punishments for contempt is restricted

to the following cases:

(2) to disobedience or neglect by

officers of such courts

respectively.

Sub-section II permits a court to summarily

punish disobedience or neglect of its lawful

process. In the matter of Johnson 467 Pa. 552

369 A.2d 739 (1976).

The Court recognizes that every failure

to appear does not constitute contempt, and

that intentional disobedience or neglect must

be shown. Commonwealth v. Washington 466 Pa.

506, 353 A.2d 806 (1976). In Washington, an

attorney who was late for trial on account of

53976, July 9, P.L. 586, No. 142, §2, eff.

June 27, 1978, 42 Pa. C.S.A. 4131

=h6«

oversleeping was found not to be in contempt

because the necessary element of intent could

not be shown. Unlike the factual situation in

Washington, appellant here made a deliberate

choice not to be present as ordered. Appellant

asserts certain facts in his appeal which he

argues provide a justification for his failure

to appear. These facts are not pertinent even

if true because appellant's failure to appear

was intentional. Appellant was aware that he

was scheduled for a conference at 10:15 A.M.,

and for reasons of his own, chose to conduct

other court business which interfered with his

attendance at the conference. It is not rele-

vant that appellant was twelve to fifteen min-

utes late; it is relevant that as a result of

his tardiness he missed the entire conference.

Appellant argues that his conduct does not

come up to a level of behaviour that would

constitute contempt. We disagree. In

Commonwealth v. Marcone, 487 Pa. 572, 410

A.2d 759 (1980), the Pennsylvania Supreme Court

wih Fan

held that an attorney's failure to attend

the call of the Criminal Trial List con-

stituted contemptuous behavior which justi-

fied the court's:use of summary punishment.

The court's decision was based on the conclu-

sion that calendar control of modern criminal

court dockets is a sophisticated operation,

dependent on diverse factors for which the

court must have the autherity to regulate.

Conduct on the part of an attorney which dis-

rupts the efficient administration of the

criminal court calendar is an affront to the

dignity of the court, and therefore, con-

temptuous.

The same is true of the Civil Court

Calendar which is equally dependent on di-

verse factors which the court must have auth-

ority to regulate. Smooth administration of

a sophisticated and crowded court calendar

depends on each attorney's personal sense of

responsibility to be where he is expected.

In the instant case, appellant's deliberate

«(2

choice to conduct other non-mediate court

related business” at the same time he was

scheduled for a pre-trial settlement confer-

ence resulted in a waste of court time as well

as the time of opposing counsel and his client,

with potential further delay of the progress

' of the case which was the subject of the con-

ference. Such conduct cannot be condoned.

The Court therefore held the appellant in con-

tempt and for the purpose of penalizing his

intentional disobedience summarily imposed a

penalty pursuant to 42 Pa.C.S.A. 4131, supra.

By the Court:

iS/ David E. Mellenberg

DAVID E. MELLENBERG %

DATED: July 10, 1981

“whe court, in Marcone, supra, categorily re-

jects the excuse of a heavy work schedule as

an excuse for failing to make a scheduled

appearance, as does the Court in the instant

case.

-49-

J. 451/82

PETER J. MEDVE -IN THE SUPERIOR COURT OF

vs. PENNSYLVANIA

KEVIN J. WALAKOVITS : Philadelphia Office

Appeal of Richard J.’

Sr loakt oe ee Philadelphia,

Appeal from the Order of the

Court of Common Pleas of Lehigh County,

Civil Division, at No. 80-C-1431

BEFORE: SPAETH, BROSKY and BECK, JJ.

OPINION BY BROSKY, J. PILED GGT. 1, 1962

This is an appeal from an order holding

an attorney in contempt of court. The event

which precipitated the contempt order was

counsel's late appearance at a pre-trial set-

tlement conference. A novel issue of law is

presented here: whether the element of intent

necessary for a finding of contempt can be met

by proof of recklessness. The trial court, in

the person of Judge Mellenberg, did not ad-

dress the case in precisely these terms.

Nonetheless, we affirm the contempt order.

Appellant contends that his tardiness was

the product of an oversight, rather than an in-

tentional act; and that, therefore, he cannot

«$0<

be properly held in contempt. In particular,

he states that he "lost track of time". Such

inadvertence is not, he argues, the equivalent

of intent. Were these the only relevant facts

in the case, we would agree. However, there

are other elements in the chain of events which

complicate the case for appellant.

Richard Orloski, plaintiff's counsel in

Medve v. Walakovits, was scheduled to appear at

10:15 A.M. for a pre-trial settlement confer-

ence with Judge Mellenberg. According to

Orloski's own sworn statement, he was in the

front entrance of the courthouse "between 10:00

A.M. and 10:05 A.M."' He relates that immediate-

ly after this he met another attorney in the

*. corridor and that the decided to go up to the

fourth floor to strike another case from the

trial list. When they arrived, neither the

Court Administrator nor his deputy were present.

"The Secretary in the Court Administrator's

office indicated that we would have to wait for

the Administrator or his Deputy, which we did."

(Statement in absence of transcript, Orloski,

p, 4).

| : a

EERE NO ET SG ae EE cS SE Re I AR: CSPI RR RTs ne Cae IER

After the administrator returned and he

completed his business, Orloski went down

four flights of stairs to get his papers for

the pre-trial conference. At this point, he

discovered that the time was about 10:25.

Mr. Orloski states that he then ran up

five flights of stairs to the floor where the

conference was to be held. Having arrived on

the fifth floor, he saw counsel for the de-

fendant, Walakovits, in conversation in the

hallway, assumed that the conference was run-

ning late and sat down to read a newspaper.

When opposing counsel started to leave, at

"about 10:35 A.M.,'' Orloski asked and found

out that the pre-trial conference in his case

had been called in his absence and that the

case was stricken. Orloski then proceeded

to the conference room where he tendered his

evologies and explanation to the court.

A $50 fine, payable to opposing counsel,

was imposed on appellant as a summary punish-

ment for contempt of court. The power of a

court to take such an action is limited to

certain circumstances. In relevant part, they

a

are: (2) Disobedience or neglect by officers,

parties...to the lawful process of the court.”

42 Pa.C.S.A. §4131.

Statutory phrases as general as this one

must be given definitional parameters by the

decision of the courts. This is especially

appropriate when, as here, the area is within

the inherent powers of the courts. Decisions

in recent years have added greatly to the in-

terpretive gloss in this particular category--

that of summarily holding attorneys in contempt

for non-appearance or tardiness at court pro-

ceedings. Noting the factual contexts of these

cases will put Orloski's conduct in its legal

perspective.

In 1976, the case of Commonwealth v.

Washington 466 Pa. 506, 353 A.2d 806 (1976),

established that the element of intent was a

necessary adjunct to disobedience or neglect in

order for contempt to be proven. The attorney

in that case failed to appear in court and a

county detective found him asleep at home.

a’ te

"Appellant apologized to the court, and ex-

plained that he had gone to a party the night

before and thought he had set his alarm." 466

Pa. at 507, 353 A.2d at 806-7. Justice

Manderino found that intent could not be

shown under these circumstances.

A year later, another case with the same

name reversed a contempt order for failure to

appear in court because the judge knew that

the attorney was engaged in another court and

because the record did not show that the at-

torney had been notified about that scheduled

appearance. Here again, the lack of requisite

intent decided the case. Commonwealth v.

Washington 470 Pa. 199, 368 A.2d 263 (1977).

Neither of the Washington _ cases was

very radical, once the element of intent was

accepted. One could hardly have the intent

not to appear in court while sleeping or if

one did not even know about his scheduled

appearance. The facts of a 1980 case gave the

Supreme Court of the Commonwealth an opportun-

ity to add depth to the definitional matrix.

Justice Roberts wrote for the court that an

wths

attorney who called and notified the court

when he knew he would be late due to another

court proceeding running longer than expected

was not contemptuous for lack of intent.

In the Matter of Mandell, 489 Pa. 522, at 526,

414 A.2d 1013 at 1015 (1980).

The last contempt reversal we shall refer

to is Weingrad v. Lippy Pa.Super. . €&S

A.2d 1306 (1982). In that case, suggested

points for charge were delivered to the trial

judge 23 minutes late. While the judge had

made it clear that he wanted the points de-

livered to him on time, the Superior Court

found that the attorney had not acted with

"wrongful intent" in that he had asked his

secretary to come in an hour early to type

the points. Pa. Super. at » 445

A.2d at 1308.

In contrast with these four reversed con-

tempt orders is Commonwealth v. Marcone, 487

Pa. 572, 410 A.2d 759 (1980). In that case,

an attorney, informed that opposing counsel

would be late, waited for his arrival instead

of going directly to court. By the time he

-55-

stopped waiting and got to court the proceed-

ing was over. The attorney had been aware of

the time and that he would be late arriving

in court as a consequence of waiting for

opposing counsel.

How can these cases be used in analyzing

Orloski's actions for the presence, vel non,

of intent? Rather than merely reciting, out

of context, the legal rules or formulas

stated in the cases, more guidance can be

gained by looking to the factual calculus in-

volved.

Orloski does not have the benefit of the

exonerating circumstances present in the

cases in which contempt orders were reversed.

Unlike the appellant in the 1976 Washington

case, he was both conscious and, at some

points, aware of the time. He did not notify

the court that he would be late, as did the

attorney in the 1977 Washington case. There

were no necessary time conflicts with other

court proceedings as in the latter case or

Mandell. (The case could have been stricken

a

at any later time in the day.) Nor is there

evidence of a good faith effo-t to comply as

was obvious in Weingrad -- at least not until

after the harm was done and he was already late.

However, on the other side, Orloski also

lacks the deliberate, conscious decision to be

late that figured so significantly in the af-

firmance of Marcone's contempt order.

As the above analysis demonstrates, prior

case law is not dispositive in deciding the

outcome of this appeal. The type of situation

present here did not appear in those cases.

In making our decision here, we make note

of two crucial moments in the chain of events

leading up to Orloski's tardy arrival. The

first occurred when he decided, immediately

after 10:00 to 10:05, to go to the Court Ad-

ministrator's office to strike a case. Con-

sidering his obligation to be in conference at

10:15, this was already "cutting it close.’

lorloski, like Marcone, did miss the entire

proceeding.

ay

The second critical moment occurred when

Orloski decided to wait for the Court Admin-

istrator's return. We cannot hold that at the

moment he decided to wait that he also con-

sciously intended to be late for the pre-

trial conference. Orloski denies any such in-

tent, and, of course, this court cannot as-~-

certain the specific subjective mental state

of any person.

But such an admission or mind-reading is

superfluous because Orloski can be held, as

a matter of law, to have intended the natural

consequences of his acts. The law of inten-

tional torts and of most specific intent

crimes is satisfied with such a method of

proof. We hold that it is equally suitable

. . here e

As previously stated, Orloski met another

attorney just after 10:00 to 10:05 on the

first floor. They proceeded to the fourth

floor, spoke to a secretary and then waited

for an Administrator's return. Even had an

Administrator arrived immediately, it is

-58-

De Ae EI OR OEE? PR Te SEN eke er yas eee ad

highly unlikely that Orloski could have trans~

acted his business and gotten to the conference

on time. At the moment he decided to wait for

the Administrator, his resulting tardiness at

the conference appears to have been substant-

ially certain. At the very least, he acted

with reckless disregard for such tardiness.

Either such substantial certainty or such

reckless disregard will suffice to establish

the intent required for contempt. It is to be

emphasized that there existed here a conscious,

deliberate act which gave rise to a substan-

tial certainty of the forbidden result; and,

alternatively, that act evinced a reckless

disregard for the likely and forbidden result.

Case law in this area does not directly

support this conclusion. The question has

simply not been treated heretofore. We hold

that intent can be proved through either the

substantial certainty or reckless disregard

methods described herein. We adopt this

standard because the consequences of not doing

so are unsatisfactory. By not allowing intent

-59-

to be shown by the implicators of one's

deliberate acts, legitimate interests of

the courts to their dignity and efficient

operation of their court calendar would have

no protection.

Order affirmed.

-60-

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

Marlene F. Lachman, Esq. 468 City Hall

Prothonotary Philadelphia, PA

Patrick Tassos 19107

Deputy Prothonotary (215) 496-4600

February 18, 1983

* Richard P. Abraham, Esquire

ABRAHAM, PRESSMAN & BAUER, P.C.

1530 Chestnut Street

Suite 412

Philadelphia, Pennsylvania 19102

RE: Peter J. Medve v. Kevin J. Walakovits

PETITION OF: Richard J. Orloski

No. 654 E.D. Allocatur Docket 1983

Dear Mr. Abraham:

This is to advise you that the following

Order has been endorsed on the Petition for

Allowance of Appeal, filed in the above

captioned matter:

"February 17, 1983.

Petition Denied.

Per Curian."

Very truly yours,

MARLENE F. LACHMAN, ESQUIRE

Prothonotary

By: /S/ Patrick Tassos

PATRICK TASSOS

/mz Deputy Prothonotary

cc: William G. Ross, Esquire

Howland W. Abramson, Esquire

Honorable David E. Mellenberg

wht: