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COMMONWEALTH PENNSYLVANIA v. NICHOLAS C. GIORDANO. APPEAL NINO V. TINARI (04/28/78)

decided: April 28, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
NICHOLAS C. GIORDANO. APPEAL OF NINO V. TINARI, ESQ.



COUNSEL

Henry J. Lunardi and James F. McBride, Philadelphia, for appellant.

Roger B. Reynolds, Norristown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Van der Voort, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision in this case.

Author: Price

[ 254 Pa. Super. Page 544]

This is an appeal from an order of the lower court holding appellant in criminal contempt and fining him $1,000.00. For the reasons stated herein, we reverse the lower court's order.*fn1 The following facts were recounted by Judge Joseph

[ 254 Pa. Super. Page 545]

H. Stanziani at the contempt hearing on October 22, 1974, and were not contested by appellant. Appellant entered an appearance for Nicholas Giordano, charged with operating a motor vehicle while under the influence of intoxicating liquor, on May 20, 1974. On Monday, September 16, 1974, appellant failed to appear for trial in Giordano's case, necessitating a continuance, and Judge Stanziani issued a rule to show cause why appellant should not be cited for contempt. The rule was returnable and a hearing was set for October 10, 1974. On September 19, appellant sent a letter to the lower court, informing the court of appellant's involvement in a homicide trial in Philadelphia on September 16, requesting the court to forego the hearing and asserting that verification of the Philadelphia case could be obtained from Judge Stanley Greenberg. The court replied that it intended to proceed with the scheduled October 10th hearing.

No further communication occurred until October 10 when Judge Stanziani received a telephone call from a Wilmington, Delaware judge informing the lower court that appellant was then involved in a trial in Wilmington. Judge Stanziani requested that the judge notify appellant that he was expected to report to the contempt hearing as soon as his Delaware business was concluded. Judge Stanziani was informed by the Delaware court that appellant was released from business there on October 15, 1974. He called appellant's office to leave word that a 1:30 p. m. hearing was scheduled for the next day. Mr. James McBride, appellant's associate, reported to Judge Stanziani that appellant was due in federal court in Washington, D. C., on the 16th and 17th. Mr. McBride called the judge later in the day and was told that if appellant failed to appear, a sheriff would be sent for him.

On October 16, at 12:50 a. m., Mr. McBride telephoned the lower court judge to say that Judge Braman would get in touch with the court. At 1:00 p. m., just one half hour

[ 254 Pa. Super. Page 546]

    before the scheduled hearing, Judge Braman called to say that appellant was working with local counsel on the Washington case, that a suppression hearing was then underway, but that appellant's presence at the hearing was not essential. Judge Braman agreed to inform appellant to report to the Montgomery County Court as soon as he was finished in Washington. Although appellant's Washington business was concluded late on the 17th, he did not appear in Montgomery County, and Judge Conroy*fn2 telephoned to excuse appellant. A 9:30 a. m. hearing for October 21 was scheduled. At 9:28 a. m. on October 21, Judge Bonavitacola*fn3 called to explain that appellant was occupied in his courtroom. Judge Stanziani set a hearing for 9:30 a. m. on the following day. At long last, appellant appeared.

Judge Stanziani referred to appellant's conduct as "a flagrant abuse of your right to practice as an attorney before these courts. I can only state to you that not only your client, Mr. Giordano . . . has been seriously affected, but everybody in this courtroom has been affected by your conduct." (C.H. 7) The lower court judge, not satisfied with appellant's explanation that "[t]he volume of [his] trial work ha[d] been overwhelming," (C.H. 8) held appellant in contempt and set the $1,000.00 fine.

Appellant raises two issues for our consideration. First, appellant asserts that mens rea is a necessary element to establish criminal contempt. Appellant contends that he did not have the necessary intent and that lack of it precludes the finding against him. Appellant's second contention is that the fine of $1,000.00 levied by the lower court was excessive. ...


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