Judge rebuked for contempt finding

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The state Superior Court has some choice words for a Washington County judge.

Court of Common Pleas Judge John F. DiSalle's finding of contempt against two Pennsylvania attorneys triggered the Superior Court rebuke,

The Superior Court was reviewing a custody case in which the father requested one of his attorneys be fired, out of fear the judge would rule against him to spite that attorney.

The majority of the panel, in an unpublished memorandum released this month, vacated Judge DiSalle's finding of contempt against both of the father's attorneys -- lead attorney Dennis M. Makel and Mr. Makel's office suite mate, Charles E. Kurowski.

The record indicates the fracas may have been avoided if Mr. Makel hadn't asked Mr. Kurowski to handle a routine motions hearing because of a scheduling conflict.

According to the opinion, Judge DiSalle found both attorneys in civil contempt and fined them each $500 because Mr. Kurowski, after being fired by the father, did not sign the custody settlement agreement after the motions hearing, despite that Judge DiSalle directed all attorneys to sign it.

Mr. Kurowski was taken off the matter days before the order, however, because the father, in his own words, thought "the court would go against my case if I used [Mr. 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 Judge DiSalle and Mr. Kurowski as "impossible to ignore," questioning whether the animosity was tied to Mr. 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, Judge 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 Judge DiSalle needlessly amplified the conflict, created unnecessary costs and stresses and inconvenienced lawyers and litigants before improperly finding the attorneys in contempt.

Judge DiSalle employed his leverage from the bench simply to "pick a fight," Judge Wecht said. "Indeed, the authority of the state is at his beck and call. For the trial judge to employ that power in a spirit of rancor amounts to bullying."

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.

Sometime between the April 21, 2011, pretrial conference and the June 8 meeting between the attorneys to sign off on the settlement, the father, concerned about an "acrimonious relationship" between the judge and Mr. Kurowski, told Mr. Makel he didn't want Mr. Kurowski on the case anymore.

As a result, Mr. Kurowski did not sign the settlement agreement.

A week later, Judge DiSalle ordered Mr. Makel and Mr. Kurowski to show the court why they should not be held in contempt for violating a court order because Mr. Kurowski did not sign the settlement.

At a hearing on the issue, Mr. Makel explained that his client did not want Mr. Kurowski handling the case, apologized, and said he had no intention of violating a court order.

Regardless, Mr. DiSalle found both attorneys 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.

Mr. Kurowski and Mr. Makel appealed the issue out of principle, according to Mr. Makel, who said in a telephone interview he has never seen an appellate quite like this one.

"People in this community shouldn't see those types of actions from the bench," Mr. Makel said. "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."

Judge Wecht's opinion contained noticeably harsher words.

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 Judge DiSalle's action were "far from vindicating the court's authority" but "served only to undermine it."

Judge DiSalle declined to comment.

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Ben Present: bpresent@alm.com or 215-557-2315. To read more articles like this, visit www.thelegalintelligencer.com.


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