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SKILTON ET VIR. v. PHILADELPHIA TRANSPORTATION COMPANY. COLLERAN APPEAL (04/03/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 3, 1974.

SKILTON ET VIR.
v.
PHILADELPHIA TRANSPORTATION COMPANY. COLLERAN APPEAL

Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1968, No. 2088, in case of Mary Skilton and Carl Skilton, her husband, v. Philadelphia Transportation Company.

COUNSEL

James E. Beasley, with him Arnold E. Cohen, and Beasley, Hewson, Casey, Kraft & Colleran, for appellant.

Thomas D'Annunzio, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent).

Author: Per Curiam

[ 227 Pa. Super. Page 500]

This is an appeal from the lower court's action in holding appellant, an attorney, in contempt of court and fining him $50. There is no record of the contempt proceedings but it appears from appellant's brief and one of several accompanying affidavits that the action of the court followed appellant's failure to appear on November 3, 1972, for call of a trial list and trial at

[ 227 Pa. Super. Page 5019]

:30 a.m.; in consequence of his absence, a civil trial in which he was counsel apparently had to be postponed.*fn1 It further appears that appellant's explanation that his absence had been occasioned by federal trial proceedings in which he was a counsel was not accepted by the lower court.*fn2

Four affidavits, apparently filed subsequent to the taking of the present appeal, accompany the appellant's brief. The affiants are: the federal judge who presided at the trial which allegedly caused appellant's absence from state court; an attorney who represented the opposing side in the federal trial; an attorney who is associated with appellant in legal practice; and appellant.

The federal judge attested to appellant's participation as counsel in a trial presided over by him, which began on October 26, 1972, and concluded with the dismissal of the jury at about 10:15 a.m. on November 3, 1972, following a meeting in chambers in which counsel reported a settlement agreement. The opposing attorney gave a statement to the same effect, noting that the jury had been dismissed in the presence of counsel. The associate stated that he had notified the lower court on October 31, 1972, of appellant's participation in the federal trial; he was informed, according to his statement, that the state case would be held in its position, and was told to have appellant notify the court of his availability when the federal trial was concluded. Appellant stated, inter alia, that at about 10:45 a.m. on November 3, 1972, having returned to his office following conclusion of the federal trial, he was instructed to appear before the lower court, and upon appearance there was questioned concerning his absence from state

[ 227 Pa. Super. Page 502]

    court. His contempt adjudication and fine resulted, according to his statement.

Although certain questions exist as to whether the present action of the court below should have been appealed directly to the Pennsylvania Supreme Court as one involving direct criminal contempt,*fn3 no objection to this Court's jurisdiction has been raised in the case and we are willing to exercise jurisdiction for the purpose of directing a remand.*fn4

In general, matters not raised in, or considered by, a lower court cannot be invoked on appeal. See Altman v. Ryan, 435 Pa. 401, 257 A.2d 583 (1969); 10A P.L.E. Criminal Law ยง 911 (1970). It would, therefore, be improper for this Court to attempt to give effect to the affidavits accompanying appellant's brief.

We are certain, however, that the lower court would wish to examine the affidavits, which indicate that the penalty imposed upon the appellant may have been the result of a misunderstanding. In view of the seriousness of a contempt adjudication of the present type, of

[ 227 Pa. Super. Page 503]

    the need for general accommodation between state and federal courts in cases involving scheduling conflicts of counsel,*fn5 and of the desirability of an expanded record in the case at bar upon which to predicate appellate review, we believe that the proper course is to remand the case as it pertains to the contempt adjudication and fine for further hearing and disposition.

Case remanded with a procedendo.

Disposition

Case remanded.


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