The state Superior Court had some choice words for a Washington County judge whose finding of contempt against two Pennsylvania attorneys came in a custody case where the father requested one of his attorneys be fired out of fear the judge would rule against him to spite that attorney.
The record indicates the fracas may have been avoided if the father’s other lawyer hadn’t had a scheduling conflict for a motions hearing as the case was nearing settlement.
The majority of the panel, in an unpublished memorandum released last week, named Court of Common Pleas Judge John F. DiSalle before vacating the judge’s finding of contempt against both of the father’s attorneys — lead attorney Dennis M. Makel and Makel’s office suite mate, Charles E. Kurowski.
Makel asked Kurowski to handle the routine motions hearing because of a scheduling conflict.
According to the opinion, DiSalle found both attorneys in civil contempt and fined them each $500 because Kurowski, after being fired by the father, did not sign the custody settlement agreement between the parties to the case months after the motions hearing, despite that DiSalle directed all attorneys to sign it.
Kurowski was taken off the matter days before, however, because the father, in his own words, thought “the court would go against my case if I used [Kurowski] as counsel.”
The lead opinion, a 14-page memorandum penned by Judge Mary Jane Bowes, pointed to the “undercurrents of suspicion and distrust” between DiSalle and Kurowski as “impossible to ignore,” questioning whether the animosity was tied to Kurowski’s accusations of judicial impropriety and his own aspirations at the bench. That, in turn, was perhaps behind the finding of contempt, the court said.
Regardless, Bowes wrote for the majority, there was no excuse for the “palpable lack of common courtesy” among the attorney and the judge.
In a concurring opinion, which was published on the court’s website last week without the memorandum, Judge David N. Wecht said DiSalle amplified the conflict, created unnecessary costs and stresses and inconvenienced lawyers and litigants before improperly finding the attorneys in contempt.
DiSalle, Wecht said, without identifying the jurist by name, employed his leverage from the bench simply to “pick a fight.”
“Indeed, the authority of the state is at his beck and call,” Wecht said. “For the trial judge to employ that power in a spirit of rancor amounts to bullying.”
In his five-page opinion, Wecht referred to DiSalle as the “trial judge” and the “trial court.”
The underlying custody battle was a contentious one, according to attorneys in the case. But it seemed the bench and bar, in what would become the only impetus for the appeal in Swarrow v. Brasuhn, followed suit.
According to Bowes, the facts related to the appeal dated back to March 3, 2011, when Makel asked Kurowski to fill in for the motions hearing and Kurowski obliged.
According to the opinion, Kurowski was working through some fine points in the hallway with opposing counsel, William H. Knestrick and Jessica S. Roberts, when a court staffer told Roberts to see the president judge about having the case reassigned to another judge.
That’s because Judge Phillippe A. Melograne and Kurowski were candidates for the same judicial seat at the time, and Kurowski had requested that Melograne recuse himself from all matters in which Kurowski appeared.
Roberts, according to the opinion, proceeded to President Judge Debbie O’Dell-Seneca’s courtroom where Kurowski would soon join. (The opinion said Kurowski “went running down” after hearing from Makel that Roberts and O’Dell-Seneca were meeting. In an interview, Kurowski said he questioned the jurist for having an ex parte communication.)
O’Dell-Seneca ordered Kurowski to enter his appearance, which Kurowski called unnecessary when reached for comment.
Nonetheless, Kurowski entered his appearance that day and the case was reassigned to DiSalle.
The next month, at a pretrial conference that Kurowski did not attend, DiSalle asked Makel why his co-counsel was not present, Bowes said. Makel then informed the court of the events leading up to the reassignment of the case.
The parties, nonetheless, had reached a settlement, Makel told the court.
According to the notes of testimony, DiSalle responded: “‘It is a pretrial and I would expect all counsel of record to be here, wouldn’t I? Especially if there is counsel of record accusing the court of having ex parte communications.’”
Makel told the court there were no issues of ex parte communication and both parties to the case had reached a final resolution.
The trial court would not enter the settlement, however, until a formal agreement was drafted and signed by both parties and all of their attorneys, including Kurowski.
Sometime between the April 21, 2011, pretrial conference and the June 8, 2011, meeting between the attorneys to sign off on the settlement, the father, concerned about an “acrimonious relationship” between DiSalle and Kurowski, told Makel he didn’t want Kurowski on the case anymore.
Knestrick, the mother’s co-counsel, drafted a settlement agreement with a signature line for Kurowski, but Makel informed his opponents that Kurowski was off the case. The line was removed and the three remaining attorneys signed it.
A week later, DiSalle issued a rule returnable for Makel and Kurowski to show the court why they should not be held in contempt for violating a court order because Kurowski did not sign the settlement.
At a hearing on the issue, Makel explained that his client did not want Kurowski handling the case, apologized, and said he had no intention of violating a court order.
DiSalle found both Makel and Kurowski in contempt and ordered each to pay $500, which would be used to compensate the wife’s counsel for the hearings they had to attend as a result of the contempt.
Kurowski and Makel appealed the issue out of principle, according to Makel, who said in a telephone interview he has never seen an appellate review like the Superior Court’s body of work in Swarrow.
“The appeal was done based on what was right,” Makel said, adding the attorneys were looking into the “next avenue in terms of compensation.”
“People in this community shouldn’t see those types of actions from the bench,” Makel added. “When a judge does that, it takes away the credence that the public has. When the courts lose credence with the public, then the whole system breaks.”
The Superior Court appeared to agree.
In Bowes’ opinion, most of the court’s legal analysis was devoted to what type of contempt — criminal or civil — should guide the panel’s review. Bowes concluded that “indirect criminal contempt” was the guiding law, instead of the imposition of civil contempt DiSalle had lodged against the attorneys.
While there was an order that the court could have found the attorneys violated — DiSalle’s order from the bench that all parties sign the agreement — there were two reasons why it should not have, Bowes said.
First, there was no evidence that Kurowski willfully violated the order because there was no evidence he knew about it, Bowes said.
Makel, on the other hand, did have notice, but after the father ordered the firing of Kurowski, the “import of the oral directive was not as clear.”
“Since the court had directed all attorneys to sign the consent agreement, including Mr. Kurowski, one might reasonably question whether the directive still extended to Mr. Kurowski if he was no longer co-counsel,” Bowes said. “The law is well settled that any ambiguities or omissions in the order must be construed in favor of the contemnee. If the court so intended, Mr. Makel was faced with a conflict between his responsibility to his client and to the court.”
With that, the court found there was no indication that Makel wrongfully intended to violate a court order in neglecting to get Kurowski’s signature.
Wecht’s opinion contained noticeably harsher words for the judge than did Bowes’.
He started his opinion by noting the case presented an “illustration of what can transpire when a trial judge loses sight of what is important and fails to maintain ‘the impersonal authority of law.’”
He closed by saying DiSalle’s action were “far from vindicating the court’s authority” but “served only to undermine it.”
Roberts, co-counsel for the mother, declined comment.
DiSalle declined to comment.
(Copies of the 19-page opinion in Swarrow v. Brasuhn, PICS No. 12-2192, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)