# Petition — Orloski v. Mellenberg

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 461 U.S. 945

## Text

$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

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. .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:

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0808%3A1. Public record. Not legal advice.