*1 A.2d Pennsylvania COMMONWEALTH MARCONE, Appellant. Frank J. Pennsylvania. Supreme Court of 10, 1979. Argued Oct. 1, 1980.
Decided Feb.
Frank Marcone, Media, J. Pa. for appellant. D. Michael Asst. Emuryan, Celia, Dist. Jean Marie Atty., Delaware Co. for appellee. O’BRIEN, ROBERTS, NIX, EAGEN, J., C. and
Before FLAHERTY, JJ. LARSEN
OPINION NIX, Justice. Marcone, a of the bar J. member Frank
Appellant, Media, offices in Delaware Court, professional maintains of his failure to meet a court commit- As a result County. to 28,1977, contempt he was found be November ment on fine ($400.00). Dollars The has fined Four Hundred imprisonment. under threat paid, allegedly been was invoked jurisdiction pursuant Appel- this Court II, Act of P.L. No. art. late Jurisdiction Court See 42 211.202(5)(Supp.1978-79). 17 P.S. Pa.C.S.A. § § 722(1) (1979 Pamphlet). Appellant’s objections § under two may below be classified of the court ruling was contumacious. First, that the conduct headings. We find Second, improper. that followed was procedure judg- be and affirm the without merit objections these ment of sentence. that was scheduled attend appellant
The court found for Trial list which was set call of Criminal weekly m., 28, 1977. Appellant a. November Monday, 9:00 for in two cases on the list as counsel of record listed obligation present promptly to be and was aware date appointed did not at the Appellant appear at 9:00 a. m. 12:00 noon. at the courthouse at time but rather arrived failing been disciplined had Appellant previously found that of the list. The court further the call appear judge no effort to contact presiding made appellant noon, although his offices were 9:00 a. m. and 12:00 between In a street from the courthouse. located across the directly 28, 1977, appellant dated November letter the court order of reconsideration requested granted request, The court entered that date. had been appropriate file an appellant to the condition that subject 19,1977. failed to Appellant on December petition or before
577 file the petition and did not offer an explanation this omission.1
Although appellant, brief, has failed to crystallize the issues he seeks to raise in of his claim support relief, it is apparent that he has attempted to set forth alternative First, positions. he urges that his conduct was not contemp- and, therefore, tuous the sanction imposed undeserved. Second, he if suggests we with his disagree first argu- ment and find that his actions did constitute misbehavior, the use of summary punishment such a case was inappro- priate. Since these arguments interrelated, are we will discuss them together, rather than treating them separately.
Contempt may be of a civil or criminal character
and criminal
are
contempts
further divided into direct and
indirect contempts.
Brocker,
Brocker v.
513,
429 Pa.
241
denied,
cert
A.2d
(1968)
336
1081,
393
857,
U.S.
89 S.Ct.
21
773;
Commonwealth v. Harris,
L.Ed.2d
163, 185
409 Pa.
A.2d
586 (1962); Phila. Marine Trade Assoc. et al. v. International
Longshoremen’s Assoc. Local Union No. 1291 et
(Phila.
al.
Marine),
500,
392 Pa.
1. In his brief and asserts that at the party, nights Bar Association’s Christmas a few before the December deadline, orally 19th judge, he secured an extension from the which subsequently recognized. critical, was not Since this fact is not we need not be concerned with its resolution. in a act or refusal contemptuous inherent is nothing There “civil”. the act as “criminal” or classifies to act which *6 contempt criminal and civil is between The distinction re- permissible judicial two rather distinction between behavior to contumacious sponses to the according are classified responses These judicial purpose court. If the dominant of the dominant purpose with an to comply the contemnor is to coerce prospectively is civil. court, contempt of adjudication of the the order the con- punish is If, however, purpose the dominant some other of the court’s order or for disobedience temnor is crimi- act, of adjudication contempt the contemptuous omitted). (Footnotes nal. 22, Martorano, 464 Pa. 66, 77-78, 346 A.2d 27-28
In re
(1975).
Charlett,
v.
22,
481
391 A.2d
also Commonwealth
Pa.
B,
In re
471,
In re
(1978);
Pa.
1296
482
Investigating
Jury
Grand
(Opinion
Special
November 1975
J.,
Nix, J.,
C.
Reversal,
joined by Eagen,
of
Support
v.
Barrett
Manderino,
123,
(1977);
Pa.
In with of a keeping criminal gravity contempt, *7 the law has the need to long recognized provide the courts with the to power impose for such summary punishment conduct in appropriate Davis, situations. v. Commonwealth 224, 258 Pa.Super. (1978); Commonwealth v. Garrison, Stevenson, 76, supra; Commonwealth v. 393 A.2d (1978); Wilson, 309, 386 U. v. 421 S. U.S. 95 S.Ct. 1802, 44 L.Ed.2d 186 v. 418 Codispoti Pennsylvania, 506, 2687, U.S. 94 41 S.Ct. L.Ed.2d 912 v. Mayberry Pennsylvania, 400 U.S. 91 S.Ct. 532 L.Ed.2d (1971). action the Summary permits court to eliminate the traditional steps adjudication, involved in an g., e. “the of answer, issuance service of process, complaint and holding evidence, of hearings, taking listening arguments, await briefs, submission of ing and all that with findings, goes conventional court trial.” States, v. United Sacher 343 U.S. 1, 9, S.Ct. 724 (1952). L.Ed. Although this is a drastic from our departure traditional view of due process, its in justification the of criminal con- punishment tempts was well stated Mr. by Chief Justice Taft in Cooke States, 517, 536, 390, 394, United U.S. S.Ct. 69 L.Ed. (1925): We think the distinction finds its reason in more any the to see and hear ability judge happens what such an that, unless danger court than
the open the court and such procedure the orderly threat open and the person defiance of a flagrant hallowed “very place public before judge it, instantly suppressed is not Blackstone has as justice,” will authority of the court’s demoralization punished, contrary issue or trial was so without follow. Punishment before hearing indispensable ordinarily to the usual and assumption that due constituting process judgment open went on everything the court saw but the need justify exception; required the court dignity vindication of immediate penal it. created notions to the traditional
Thus,
regard
with due
thát an ordered
recognized
it is nevertheless
due process,
.
summary dealing
such a
“require[s]
of justice
system
law, in its active
vindicating
majesty
a mode of
[as]
it,].
outrage
manifestation,
obstruction
against
[to
States,
11, 14,
75 S.Ct.
348 U.S.
Offutt
...”
also Cooke v. United
11, 13, 99 L.Ed.
77, 32
289, 9
States,
parte Terry,
Ex
128 U.S.
S.Ct.
supra;
includ
contempt,
punish
power
L.Ed. 405
is not derived
punishment,
inflict summary
ing
power
and is
inherent
in courts
is a right
statute but rather
by
5 of
under Article
judicial power
grant
incidental
Stevenson,
supra;
Commonwealth
our
Constitution.
rel.
Per
ex
Brocker, supra; Commonwealth
Brocker v.
*8
re Attachment of
In
kins, 36,
2. substantially identical form at Pa.C.S.A. [Repealed and codified Pamphlet) (1979 June 1978.] effective §§ contempts of penal Classification this courts of commonwealth of the several power The punishments and to inflict summary attachments issue following be restricted to the for of court shall contempts cases, to-wit: of of the officers such misconduct To the official
I. respectively; courts officers, parties, jur- neglect by To or
II. disobedience court; or the lawful process of ors or witnesses presence of person To misbehavior any III. of the administration court, obstructing of thereby justice. construed as of the Act of 1836 has been
Section
sentence under the
prison
a
power
impose
limiting
23)
contempts
requir
to direct
(section
section
previous
by fine
“punished
shall be
contempts
indirect
ing
1836is read
Marine,
the Act of
Phila.
When
only.”3
supra.
1931,4
apparent
of
it
with the Act
becomes
conjunction
Act of 1836
in section 23 of the
that the conduct described
contempts.
as well as direct
was intended to cover indirect
509, 521, 142 A.2d
Pa.Super.
Rosenberg
Appeal,
of
Act
in section 24
The limitations
provided
of the sanction
imposition
of 1836
restricts the
merely
punish
where
contempts
summary
to direct
imprisonment
in this case
imposed
the sanction
ment is
Since
employed.
fine,
is
critical to our determination
it
only
having
is
as
whether the conduct
to be construed
ascertain
occurred within the actual or constructive
falls within the
long
perimeters
court as
as it otherwise
In
e.g.
Act of 1836. See
the Matter
section 23
provides:
Act of
3. Section 24 of the
contempt
for
Punishment
punishment
imprisonment
as aforesaid shall
court,
open
only
contempts
as shall be committed
extend
to such
only.
contempts
punished by
be
fine
and all other
shall
1, 2,
2048.
P.S.
§§
§§
4.
of June
P.L.
Act
Act,
Assembly
criminal
has set forth indirect
the General
Under
imprisonment may
imposed
be
contempts
a sentence
which
procedure
a sanction
intended.
to be followed where such
and the
*9
Johnson,
(conduct
With the turn to the foregoing found of the evidence in this record. The court cy a ap had scheduled court deliberately neglected appellant notice, legiti of which had sufficient without a he pearance, A mate excuse.6 deliberate absence from a scheduled court established, fall if would within the proceeding, purview set II of section 23 the forth under subsection prohibition 1836.7 the Act of note, however, authority finding
5. We
that there is
a deliberate
appear-
by
from a
and unexcused
counsel
scheduled court
absence
gravamen
type
contempt.
ance to be a direct
The
of this
of miscon-
event,
by
any
In
duct is the absence which is witnessed
would be misbehavior which has the
ceeding
the court.
it
affecting
pro-
capacity
progress
justifying finding
in
then
and thus
a
constructive
Galloway,
presence. In re
480 Pa.
Common-
Gates,
Gaston,
333 A.2d
In re
wealth v.
Niblack,
(D.C.
1973);
U.S.App.D.C.
U.S.App.D.C.
F.2d 998
Cir.
In re
(D.C.
1973).
While there
his
on
acting in the role of an advocate
while
attorney,
of
officer
the court
behalf, should be considered an
client’s
v.
compare
Commonwealth
I,
of subsection
purposes
389;
Common
82, 393
Stevenson, supra
482 Pa. at
A.2d at
977; In
Garrison,
supra,
wealth v.
367,
Accepting
intent” neces-
“wrongful
reflected
fied that
the conduct
Com-
upon
relies
Appellant
II.
subsection
satisfy
sary
(1976)
A.2d 806
Washington,
monwealth
*11
in this case
the conduct
of his
support
position
every
we noted that
In Washington,
not contemptuous.
con-
not constitute
a
lateness would
or
appear
failure
for estab-
necessity
we stressed the
In that decision
tempt.
or ne-
disobedience
of an intentional
the existence
lishing
be sustained for
would
finding
contempt
a
before
glect
time.
appointed
at the
the failure to appear
argument,
any per-
accept
prosecution’s
Were we to
late can be
a courtroom
, who comes into
son,
.
.
.
court,
of the reason
regardless
guilty
contempt
held
a conclusion.
cannot
such
accept
the lateness. We
disobedience
an intentional
the evidence establishes
Unless
court,
no
lawful process
intentional
neglect
or an
proven.
has been
Id.,
807.
ROBERTS, J., dissenting filed a ROBERTS, Justice, dissenting. crimi- summary demonstrates
The record clearly was a wholly in this case judge by nal contempt imposed I dissent. action. impermissible unnecessary and has criminal convicted of stands Appellant missing, apparently fine for pay been required $400.00 trial list day’s call of the minutes, the routine some few by County. Regret- of Delaware of Common Pleas in the Court judge trial as the unwilling is as majority tably, Ma- missed the call. having reasons for appellant’s consider however, unfortunate, Most at 764 n.5. Ante jority Opinion, the funda- even appellant to allow refusal majority’s is the for a hearing an opportunity safeguard mental procedural for appel- create a record evidence present which penalty criminal summary condoning late review. By required clearly protections abandons majority this case the process. of due principles fundamental by are procedures summary contempt acknowledge I functioning orderly maintain the necessary sometimes process. dignity judicial and to preserve our courts 91 S.Ct. 400 U.S. Mayberry Pennsylvania, States, (1971); see also Sacher L.Ed.2d 532 *13 believe, I refuse to L.Ed. 717 U.S. S.Ct. warranted circumstances however, are they this case: criminal is summary contempt impose power
available only an threat to the open orderly “such conduct as created defiance of the flagrant the court and such procedure that, public before the judge person presence demoralization suppressed punished, if not instantly of the court’s will follow.” authority 1068,1071 Clark, (3rd 1973)(quota- 490 F.2d Cir. Jessup States, accord, omitted); tion marks Cooke 390, 394-95, 69 L.Ed. 517, 536, 45 U.S. S.Ct. Marra, 1196,] F.2d at supra, United States [482 may in such circumstances 1973)]. 1201 Cir. Only [2 a contemner to without subject punishment the criminally otherwise accorded procedural protections accused. Garrison, 356, 366-67, 386 A.2d
Commonwealth v. failure to (1978) opinion). appear (plurality Surely, open the call of list is neither “an threat” to day’s Nothing in this judge. court nor defiance” of the “flagrant judgment case the need to of sentence impose demonstrates on him a or an appellant affording hearing opportu- without a defense. nity prepare has been contempt criminal limited summary
Traditionally occurred within to situations where the conduct challenged Illinois, 391 of the court. Bloom v. U.S. presence 202-205, 1477, 1428-84, 522, 529-31 20 L.Ed.2d S.Ct. In criminal contempt the federal courts summary he saw or heard if the “certifies that permitted judge only com the conduct and that it was constituting mitted in of the court.” Fed.R.Crim.P. presence the actual When the conduct occurs 42(a).* challenged * Project on See American Bar Associaton Standards Criminal Draft, Justice, (Approved Judge 7.1 § The Function of The Trial 1972). *14 procedures justified are because judge, summary and evaluate the con- able observe
judge presumably finding. or fact investigation without need for further duct when does occur in But the conduct relevant possessed it is that all likely judge less case, less that facts. In the latter it is also likely In such circum- requires response. conduct an immediate one whose conduct is chal- requires stances fairness major- be basic lenged procedural safeguards. afforded finds its Cooke ity primary support position L.Ed. 767 But as State, 45 S.Ct. U.S. in that Taft, Justice for a unanimous Court speaking Chief case, said: law, therefore, process
“Due prosecution court, re- contempt, open committed except charges be advised of the quires that the accused should by way and have a to meet them opportunity reasonable of defense or We think this includes explanation. counsel, if and the to call right assistance of requested, either issue of witnesses relevant testimony, to give or in extenuation the offense ’complete exculpation to be mitigation imposed.” of the penalty Illinois, 391 in Bloom v. Id. at quoted S.Ct. 194, 205, 20 L.Ed.2d U.S. 88 S.Ct. majority’s summary appellant’s
I dissent from the denial of rights judgment and would reverse established due process of sentence.