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COMMONWEALTH PENNSYLVANIA v. FRANK J. MARCONE (02/01/80)

decided: February 1, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK J. MARCONE, APPELLANT



No. 803 January Term, 1977 In Support of Appeal from an Order of Contempt imposed on November 28, 1977 by the Honorable Joseph T. Labrum, Jr., Judge, Court of Common Pleas of Delaware County, Pennsylvania, Criminal Division, Misc. Docket No. A 34, page 18 of 1977

COUNSEL

Frank J. Marcone, Media, Pennsylvania, for appellant.

D. Michael Emuryan, Asst. Dist. Atty., Jean Marie Cella, Delaware Co. for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Manderino, J., did not participate in the consideration or decision of this case. Roberts, J., filed a dissenting opinion.

Author: Nix

[ 487 Pa. Page 576]

OPINION

Appellant, Frank J. Marcone, a member of the bar of this Court, maintains professional offices in Media, Delaware County. As a result of his failure to meet a court commitment on November 28, 1977, he was found to be in contempt and fined Four Hundred Dollars ($400.00). The fine has been paid, allegedly under threat of imprisonment. The jurisdiction of this Court was invoked pursuant to the Appellate Court Jurisdiction Act of 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(5) (Supp.1978-79). See 42 Pa.C.S.A. § 722(1) (1979 Pamphlet). Appellant's objections to the ruling of the court below may be classified under two headings. First, that the conduct was not contumacious. Second, that the procedure followed was improper. We find these objections to be without merit and affirm the judgment of sentence.

The court found that appellant was scheduled to attend the weekly call of the Criminal Trial list which was set for 9:00 a. m., Monday, November 28, 1977. Appellant was listed as counsel of record in two cases on the list for that date and was aware of his obligation to be present promptly at 9:00 a. m. Appellant did not appear at the appointed time but rather arrived at the courthouse at 12:00 noon. Appellant had previously been disciplined for failing to appear for the call of the list. The court further found that appellant made no effort to contact the presiding judge between 9:00 a. m. and 12:00 noon, although his offices were located directly across the street from the courthouse. In a letter to the court dated November 28, 1977, appellant requested a reconsideration of the order of contempt that had been entered that date. The court granted the request, subject to the condition that appellant file an appropriate petition on or before December 19, 1977. Appellant failed to

[ 487 Pa. Page 577]

    file the petition and did not offer an explanation for this omission.*fn1

Although appellant, in his brief, has failed to crystallize the issues he seeks to raise in support of his claim for relief, it is apparent that he has attempted to set forth alternative positions. First, he urges that his conduct was not contemptuous and, therefore, the sanction imposed was undeserved. Second, he suggests that if we disagree with his first argument and find that his actions did constitute misbehavior, the use of summary punishment in such a case was inappropriate. Since these arguments are interrelated, we will discuss them together, rather than treating them separately.

Contempt may be of a civil or criminal character and criminal contempts are further divided into direct and indirect contempts. Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968) cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773; Commonwealth v. Harris, 409 Pa. 163, 185 A.2d 586 (1962); Phila. Marine Trade Assoc. et al. v. International Longshoremen's Assoc. Local Union No. 1291 et al. (Phila. Marine), 392 Pa. 500, 140 A.2d 814 (1958); Commonwealth ex rel. Cox v. Cox, 391 Pa. 572, 137 A.2d 779 (1958); Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956); Simmons v. Simmons, 232 Pa. Super. 365, 335 A.2d 764 (1975). The distinguishing characteristic between contempts which are classified as criminal and those labeled civil is that the latter has as its dominant purpose to enforce compliance with an order of court for the benefit of the party in whose favor the order runs. Criminal contempts, on the other hand, have as a dominant purpose the vindication of the dignity and authority of the court and to protect the interests of the general public. See United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Gompers v. Back's Stove and Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911).

[ 487 Pa. Page 578]

There is nothing inherent in a contemptuous act or refusal to act which classifies the act as "criminal" or "civil". The distinction between criminal and civil contempt is rather a distinction between two permissible judicial responses to contumacious behavior

These judicial responses are classified according to the dominant purpose of the court. If the dominant purpose is to prospectively coerce the contemnor to comply with an order of the court, the adjudication of contempt is civil. If, however, the dominant purpose is to punish the contemnor for disobedience of the court's order or some other contemptuous act, the adjudication of contempt is criminal. (Footnotes omitted).

In re Martorano, 464 Pa. 66, 77-78, 346 A.2d 22, 27-28 (1975).

See also Commonwealth v. Charlett, 481 Pa. 22, 391 A.2d 1296 (1978); In re B, 482 Pa. 471, 394 A.2d 419 (1978); In re November 1975 Special Investigating Grand Jury (Opinion in Support of Reversal, Nix, J., joined by Eagen, C. J., and Manderino, J.) 475 Pa. 123, 379 A.2d 1313 (1977); Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Woods v. Dunlop, 461 Pa. 35, n.2 at 40, 334 A.2d 619, n.2 at 622 (1975); Beghian v. Beghian, 408 Pa. 408, 184 A.2d 270 (1962).

In this case it is undisputed that the court intended to make and did make an adjudication of criminal contempt. Thus the legitimacy of the order before us will be dependent upon a determination as to whether appellant's actions constituted a criminal contempt. As previously noted, criminal contempts are further divided into direct and indirect contempts. A direct criminal contempt consists of misconduct of a person in the presence of the court, or disobedience to or neglect of the lawful process of the court, or to misbehavior so near thereto as to interfere with the immediate business of the court. Phila. Marine, supra; Commonwealth v. Garrison, 478 Pa. ...


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