No. 182 January Term, 1978, Appeal from Order of the Court of Common Pleas, of Philadelphia, Criminal Contempt, at No. 78-00-4213
Laurence Ring, Philadelphia, in pro per.
O'Brien, C. J., and Roberts, Larsen, Flaherty and Kauffman, JJ. Nix, J., did not participate in the consideration or decision of this case. Flaherty, J., files a dissenting opinion.
This is an appeal from an order entered on April 20, 1978, in the Court of Common Pleas of Philadelphia County. Following an adjudication of direct criminal contempt, the court by its April 20, 1978 order, fined appellant $1,500.00. The facts of the case are as follows.
Appellant, Laurence Ring, is an attorney licensed to practice law both in California and in Pennsylvania. At some time prior to March 9, 1978, appellant had been retained to represent an individual charged with homicide in the Criminal Court of Philadelphia. On March 9, 1978, appellant appeared before the homicide calendar judge, the Honorable Merna Marshall, to schedule a trial date. Appellant advised the court of a prior commitment in California, observed he expected to return to Philadelphia by April 17, 1978, and requested a late April trial date. Judge Marshall set a trial date of April 17, 1978, before the Honorable Robert A. Latrone.
Appellant alleges that at this time he told Judge Marshall he would contact the court one week prior to the date set for trial to inform it of his availability. On April 12, 1978, appellant's associate contacted Judge Latrone to inform him appellant was still occupied before the Federal Court in California and would be unable to appear as scheduled on April 17. On April 13, 1978, Judge Latrone advised appellant's associate to inform Judge Marshall of this development. Appellant was telephoned in California and told what had occurred, and he, on April 14, 1978, telephoned Judge Marshall's office to discuss the situation. On that date Judge Marshall informed appellant's associate that appellant was ordered to appear as scheduled or, in the
alternative, have another appear in his place. The associate then told the court that no one would be available to attend.
Neither appellant nor any other person appeared as ordered on April 17, 1978. On April 20, 1978, appellant appeared before Judge Marshall who conducted a contempt hearing. On that date the court found appellant to have been in direct criminal contempt and imposed a fine of $1,500.00. From that Order the instant appeal is taken.
Appellant advances three issues for our review: because of our disposition of the case we need address only one.*fn1 Appellant contends his conduct did not constitute criminal contempt, direct or otherwise. We agree and, accordingly, reverse.
To establish criminal contempt of a court order "intentional and wilful commissions of the allegedly contemptuous act" must be proven. Mere noncompliance is not enough. In re Mandell, 489 Pa. 522, 414 A.2d 1013 (1980). We have on several occasions considered the elements of criminal contempt in relation to an attorney's failure to make a required appearance. In Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977) an attorney failed to appear at a scheduled trial and at several subsequent scheduled contempt hearings. Observing that "the evidence . . . establishes only noncompliance with certain court orders" which "alone is insufficient to prove contempt," we reversed. We found that the record in Washington, id., lacked any evidence that the attorney had notice of the scheduled hearings. Thus, the trial court's notice to appear "was not intentionally disregarded. On the contrary, the evidence [was] uncontradicted that the Montgomery trial judge was told on that date that appellant was at trial in ...