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In Re: Maryesther S. Merlo

September 28, 2012


Appeal from the Order of the Pennsylvania Court of Judicial Discipline dated October 17, 2011 at Nos. 3JD 10 and 1 JD 11 34 A.3d 932 (Pa.Ct.Jud.Disc., 2011)

The opinion of the court was delivered by: Madame Justice Todd



ARGUED: September 11, 2012


In this appeal, we consider whether the Court of Judicial Discipline ("CJD") erred in permanently removing Lehigh County Magisterial District Judge MaryEsther S. Merlo (hereinafter "Appellant") from judicial office. After careful consideration, we find the CJD's sanction is lawful under the circumstances of this case. Accordingly, we affirm.

I. Background

In November 2003, Appellant, a licensed attorney, was elected as a magisterial district judge in Allentown, Pennsylvania. Appellant began serving her term in January 2004, and, at the conclusion of her first six-year term, she successfully campaigned for re-election in 2009. Her second term began in January 2010. On November 4, 2010, the Judicial Conduct Board ("Board") filed a seven-count complaint with the CJD, alleging Appellant violated various Rules Governing Standards of Conduct of Magisterial District Judges (the "MDJ Rules"), including MDJ Rules 2A,*fn1 3A,*fn2 4A,*fn3 4C,*fn4 and 5A.*fn5 The complaint further alleged Appellant violated art. V, § 18(d)(1) of the Pennsylvania Constitution*fn6 by neglecting or failing to perform the duties of her office and by engaging in conduct which brings the judicial office into disrepute. On February 25, 2011, the Board filed a second complaint containing three new sets of factual allegations relating to violations alleged in the first complaint. The complaints were consolidated, and a three-day trial commenced on May 31, 2011. The CJD classified the extensive evidence presented by the Board into four categories: Work Habits; Truancy Cases; Landlord Tenant Cases; and Demeanor and Abuse of Power.

A. Work Habits

At trial before the CJD, the Board introduced evidence of Appellant's chronic absenteeism and habitual lateness in appearing for court. Specifically, the Board introduced a chart detailing the dates Appellant "called off." Between September 12, 2007 and December 15, 2009, Appellant called off on 116 days, and took 49 days of vacation, thereby failing to report to work at all on 30% of the workdays during that period. In addition, it was established that, on the days Appellant did not call off, she was never on time. Rather, her customary arrival time at court was between 10:00 and 10:30 a.m., despite the fact that hearings were always scheduled to begin at 9:30 a.m., and lawyers and litigants therefore were kept waiting. One witness, a police officer, testified that, in light of the number of times he appeared at a scheduled hearing before Appellant, only to learn after he arrived that Appellant had called off, he made it a practice to call Appellant's courtroom prior to leaving his home. Despite this practice, he recounted at least one occasion when he was told Appellant would be there, but, upon arriving at the courthouse, learned she had called off.

The Board also presented testimony regarding the detrimental impact of Appellant's conduct on her staff, who often spent most of the morning making telephone calls to attorneys, litigants, and witnesses to advise them that their hearings were continued; preparing and mailing notices of new hearing dates; and attempting to placate angry litigants and witnesses. These activities interfered with the staff's ability to handle the regular, day-to-day business of the court. Deborah Stringer, Appellant's former office manager, testified that Appellant's excessive absenteeism caused a backlog of paperwork in the office, such that often cases were not closed in a timely manner; and criminal defendants were not promptly given credit for time served. N.T., 5/31/11, at 164-65.

B. Truancy Cases

The Board next presented evidence regarding Appellant's handling of truancy matters which came before her. William Allen High School, which is part of the Allentown School District, is located in Appellant's jurisdiction. The high school had a serious truancy problem, and, as a result, Suzette Arcelay, the home school visitor for the district, was required to appear before Appellant two days a week for truancy hearings,*fn7 where she would present documentation of illegal absences. Arcelay testified that she customarily arrived at court between 8:00 and 9:00 a.m. for hearings scheduled for 9:30 a.m., but that Appellant typically did not arrive until between 10:00 and 10:30 a.m. N.T., 6/1/11, at 367. Arcelay further testified that Appellant sometimes would call off on the day of the truancy hearings, calling in as late as 10:30 or 11:00 a.m., and the hearings would need to be continued, after the families were already present. Id. at 369. In fact, the school district received numerous complaints from parents who missed work in order to attend a child's truancy hearing, which ultimately was continued because Appellant failed to appear. As a result of receiving so many complaints regarding Appellant's absences and tardiness, Patricia Welle-Feldman, the student services coordinator for the Allentown School District, ultimately spoke with her supervisor, and they contacted the Lehigh County Court Administration Office, requesting reassignment of truancy cases to a different judge. Id. at 441.

The Board also introduced evidence of Appellant's procedure for handling truancy cases when she was in court. Prior to 2009, when a truant student and his or her parents did not appear for a scheduled hearing, Appellant would meet with Arcelay after the completion of the hearings, identify the "no-shows," and either continue the hearing or impose a fine in absentia. Beginning in 2009, Appellant changed her procedure, and no longer disposed of the "no-shows" at the end of the day. Rather, Appellant would tell Arcelay that she was tired, and that she would give Arcelay the information "the next day or whenever she got a chance to do them." Id. at 392.

The Board introduced evidence that, in 2009, Appellant delayed the adjudications of 30 truancy cases after the child did not report for the hearing as follows:

6-day delay 4 cases 13-day delay 6 cases 27-day delay 5 cases 34-day delay 3 cases 116-day delay 12 cases Id. at 394-95. Welle-Feldman explained that these delays caused serious problems for the school district because the students who were involved already had truancy problems, but suffered no immediate consequences when they chose not to report for their hearing, and the student would continue to be truant until sentence was imposed. Id. at 446-48. ("When a case is continued, that student now has an opportunity for another four to six weeks of school absence. By the time anyone actually addresses something, that student could be out of school for 40-60 or more days."). Thus, a student's record of truancy often was extended due to Appellant's failure to adjudicate the matters in a timely fashion. Moreover, unsurprisingly, Welle-Feldman testified that it set a poor example for students charged with truancy or tardiness to be summoned to court where the judge herself failed to appear, or appeared late, for the hearing. Id. at 440.

C. Landlord/Tenant Cases

The Board next presented evidence of Appellant's practice for handling landlord/tenant cases. In an action to recover possession of real property, Rule 512 of the Rules of Civil Procedure for Magisterial District Judges*fn8 requires that the plaintiff, which may be either the landlord or the tenant, appear at a hearing and present testimony. The Board presented evidence that, notwithstanding Rule 512, Appellant gave her staff standing instructions on how they were to handle landlord/tenant cases when she was absent from court. First, in cases where the landlord was present and the tenant was not, or in cases where both the landlord and tenant were present and they agreed on the relief plaintiff was seeking, Appellant's staff was instructed to enter judgment on a Notice of Judgment form and mail it to the parties immediately, or by the next day. The Notice of Judgment was not signed by Appellant. In cases where both the landlord and tenant were present, but disagreed as to the relief plaintiff was seeking, Appellant's staff was instructed to reschedule the hearings for another date. See N.T., 5/31/11, at 160-63 (Deborah Stringer testimony); at 94-104 (Rebecca Wenhold testimony).

D. Demeanor and Abuse of Power

Finally, the Board presented evidence of Appellant's conduct during ten separate hearings in her court, which, according to the Board, violated six separate rules and constitutional provisions. In one case, Commonwealth v. Krauss,*fn9 the defendant was a high school senior charged with speeding. The arresting officer agreed to lower the charged speeding level, and the defendant agreed to plead guilty. After Appellant was informed of the arrangement, she told the defendant's mother, who had accompanied him to court, that she (Appellant) would need to speak with the defendant before she agreed to the disposition. Appellant addressed the teenaged defendant as follows:

She began telling him he was "a dog and a dog needs to be retrained." She then entered into a lengthy vocal exercise covering such topics of being away from his mother, drinking and other likely temptations he could expect to confront in college, women keeping men waiting while they put on their jewelry, and how she likes to wear rings on all her fingers, etc.

In re Merlo, 34 A.3d 932, 967 (Pa. Ct. Jud. Disc. 2011) (footnote omitted) (quoting testimony of defendant's mother, Deborah Krauss, at N.T., 6/2/11, at 771). The CJD noted that the above was "all [Appellant's undisputed] testimony, except that she denied that she liked rings on her fingers and denied making any reference to a dog." 34 A.3d at 967. However, on these points, the CJD credited the testimony of the defendant's mother.

The Board also presented evidence regarding a preliminary hearing held before Appellant in a domestic assault case, Commonwealth v. Parrales. The prosecuting witness had retained David Nicholls as her attorney in the case; during the hearing, Nicholls advised the witness, who required an interpreter, to invoke her Fifth Amendment right and decline to testify. According to Nicholls, at that point, Appellant questioned whether the witness had a right to refuse to testify, and began looking through some papers, stating "I'm looking to see if I can find a way to charge her with perjury." N.T., 6/2/11, at 874. Nicholls stated that he believed his client had the right to assert her Fifth Amendment privilege, and continued to advise his client not to testify, at which time Appellant became angry, ordered Nicholls not to speak to his client, and told him several times to "shut up." Id. at 876. Eventually, Appellant held the witness in contempt, sentenced her to ten days in jail, and directed the sheriff to immediately arrest her. The sheriff refused to arrest the witness. On appeal, a court of common pleas vacated the contempt order.

In another case, Commonwealth v. Renninger, the defendant was confined in the Lehigh County Prison on a summary charge of criminal mischief. In such cases, arraignments for incarcerated defendants are conducted by video through the Central Booking Center, which is located in the prison. However, Michael Rooney, who runs the Central Booking Center, testified that when the defendant was brought into the video room, Appellant announced that she was going to start the summary trial, and proceeded to swear in the police officer and another witness who was present in Appellant's courtroom. N.T., 6/1/11, at 617-620. The defendant became very upset, arguing that it was unfair and that he had a right to present witnesses. Appellant told the defendant to stop talking, and when he continued to talk, she told him that she was going to interrupt him to see how he liked it. Appellant then began to say "Rover has a bone, Rover has a bone" over and over again, while looking at the ceiling and waving her head around. Id. at 622-23. Rooney testified that he had security concerns because the defendant was becoming increasingly upset as a result of Appellant's behavior. Rooney further testified that, at the conclusion of the "trial," he called the magisterial district judge's administrator to report the incident, and prepared a report regarding the same. Id. at 625-26.

The Board next presented evidence regarding a landlord/tenant case, Alcaro v. DeCesare, in which the tenants, who were suing their landlord for the return of their security deposit, had difficulty serving the landlord because she was avoiding service. At the hearing, the tenant stated he had a voicemail of the landlord's office staff indicating the landlord was "dodging service," at which point Appellant asked him to play the voicemail, over the defense's objection. N.T., 6/1/11, at 692. According to the tenant, after he played the voicemail, Appellant went "ape shit" and began to scream at the tenant, telling him he was wasting her time. Id. at 693. Although judgment was entered in his favor, the tenant testified "I have been to court a number of times . . . and I never left a courtroom feeling worse than I did the day I won in Judge Merlo's [c]court." Id. at 699.

In another case, Commonwealth v. Steinbrecher, the incarcerated defendant had a mental health and/or substance abuse problem. The defendant's attorney reached an agreement with the district attorney that his client would waive his preliminary hearing and make a motion for modification of bail so that he could be admitted to an unsecured inpatient treatment facility. According to the defendant's attorney, when he presented the motion to Appellant, she "went off into a tirade" and said to the defendant "you're a low life and now you want bail, and I'm not going to grant you bail unless you tell me that you're a scum bag." N.T., 6/2/11, at 843.

The Board also introduced the testimony of Bethany Zampogna, a chief deputy district attorney, who appeared before Appellant for a preliminary hearing. The prosecuting witness had not been notified and thus failed to appear, and the hearing was continued. The defendant sought a reduction in bail, at which time Zampogna and Appellant began to argue about the amount of bail. Zampogna testified that Appellant told her to "shut up" and then fined her $100 for contempt of court.*fn10 N.T., 6/1/11, at 586. Zampogna immediately reported the incident to her boss; Appellant took no action to enforce any contempt ...

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