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COMMONWEALTH PENNSYLVANIA v. JOSEPH V. RESTIFO (02/21/85)

filed: February 21, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JOSEPH V. RESTIFO, APPELLANT



No. 2762 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. MC 8209-1598.

COUNSEL

Joseph V. Restifo, Philadelphia, appellant, in propria persona.

Paul Gelman, Philadelphia, for Commonwealth, appellee.

Wieand, Olszewski and Popovich, JJ.

Author: Wieand

[ 339 Pa. Super. Page 226]

Joseph Restifo, Esquire, was summarily found guilty of direct criminal contempt because of unspecified conduct occurring after a non-jury trial had been adjourned for the day and while the trial judge was leaving the bench. Our review of the record fails to disclose evidence sufficient to sustain a conviction for contempt. Therefore, we reverse.

Joseph Restifo, Esquire, was counsel of record for the plaintiff in a civil action being tried non-jury in the Court of Common Pleas of Philadelphia. The tone of the trial was set early when Restifo asked the trial judge if the judge had asked that the case be assigned to him. After a short recess called by the trial judge so that he could have "an opportunity to calm down," the trial judge directed a tirade against counsel which accused counsel of suffering from a longstanding problem and suggesting that his "insulting and outrageously inflammatory question" may have been

[ 339 Pa. Super. Page 227]

    the result of "some deep-seated need . . . for attention from your clients." The trial court suggested also that counsel's question may "have been a deliberate attempt to cause a disruption of the trial and . . . some form of judge-shopping since you were unsuccessful, and clearly so, in your last matter that was before this Court." Finally, the trial judge told counsel that he had come "within a hair's breath of ending up in the Sheriff's cell" that the judge would refer the question asked by counsel to the Disciplinary Committee, and that "any further actions on your part along those lines would definitely be considered by me as a deliberate and intentional intent on your part to disrupt the orderly proceedings." Counsel responded: "Your Honor, in view of your comments I really must ask you to excuse yourself from further proceeding with this case." The motion for recusal was denied.*fn1

After the trial had been adjourned at 5:15 p.m. and the trial judge was about to leave the courtroom, defense counsel inquired about the effect of a Jewish holiday upon the next day's proceedings. As a part of the trial judge's answer, he impliedly blamed Restifo for prolonging the trial and said, as the judge concedes, that Restifo "could care less about the entire schedule of anyone involved."*fn2 What happened next is not clear. Because court had been adjourned for the day, no record of the succeeding interchange was made, and the versions of the trial judge and Restifo vary widely. The version placed on the record by the trial judge was that Restifo had become upset and had jumped up and begun shouting that he wanted to put something on the record. When told to be seated and to stop shouting and screaming, according to the trial judge, Restifo refused. This was denied by Restifo, who said that

[ 339 Pa. Super. Page 228]

    he had risen out of respect for the court and had spoken in a normal voice to make a request that the stenographer record the trial judge's remark that counsel could care less about other persons involved in the trial. We cannot know counsel's tone of voice in addressing the court. It is significant, however, that neither the version of the trial judge nor that of counsel contains any remarks by Restifo that were substantively contemptuous of the court. The record given to this Court for review suggests that counsel was courteous to the trial judge even in disagreement.*fn3 Nevertheless, after the two versions had been placed on the record, the trial judge summarily found Restifo in contempt of court and sentenced him to pay a fine of $500.00 and undergo imprisonment for a period of five days.

The inherent power of a court to inflict summary punishment for contempt of court is restricted by 42 Pa.C.S. ยง 4131. The provision pertinent to a decision in this case is contained in Subsection ...


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