Opinion
3 JD 2019
05-21-2021
IN RE: Judge Scott DiClaudio Court of Common Pleas First Judicial District Philadelphia County
JUDICIAL CONDUCT BOARD'S SANCTION MEMORANDUM
I. Procedural History
On December 20, 2019, the Judicial Conduct Board (the Board) filed a complaint in the Court of Judicial Discipline against Judge Scott DiClaudio (Respondent) alleging two distinct areas of misconduct. The first area of misconduct pertained to a civil suit filed against Respondent in Montgomery County in which Respondent ignored five court orders, resulting in findings of contempt on three occasions. The second set of facts pertained to his failure to properly complete four annual statements of financial interest (SOFIs). This Court presided over a pre-trial conference on October 1, 2020. The parties filed Joint Stipulations of Fact in Lieu of Trial and Amended Joint Stipulations of Fact in Lieu of Trial, on October 9 and 15, 2020, respectively.
On December 1, 2020, this Court issued its Opinion and Order concluding that Respondent had violated Rules 1.1 and 1.2 of the Code of Judicial Conduct as well as Article V, § 17(b) and Article V, § 18(d)(1) of the Constitution of the Commonwealth of Pennsylvania. On December 9, 2020, Respondent filed Objections and Exceptions pertaining to the finding that Respondent had violated the Disrepute Clause, Article V, § 18(d)(1) of the Constitution. By order dated December 21, 2020, this Court denied Respondent's Objections and Exceptions. A Sanction Hearing is scheduled for June 2, 2021.
II. Discussion
When determining the sanction for misconduct, offending judges can expect that "such factors as the seriousness of the violation, the intent of the judge, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the judicial system" will be analyzed by this court. (Code of Judicial Conduct, Preamble.) In In re Toczydlowski, 853 A.2d 24 (Pa.Ct.Jud.Disc. 2004) this Court provided further guidance regarding factors it will review when considering the appropriate sanction for misconduct by referencing and adopting the ten nonexclusive factors utilized in In re Deming, 736 P.2d 639 (Wash. 1987). Where relevant to the facts of the case now before this Court, the factors first adopted in Toczydlowski, are discussed below.
1. Whether the misconduct is an isolated instance or evidenced a pattern of conduct.
Respondent's misconduct evidenced a pattern of conduct. Over a period in excess of four years, from August 2015 to October of 2019, Respondent repeatedly refused to obey court orders pertaining to a civil suit against him. As a result, he was held in contempt of court on three separate occasions. Respondent's failure to properly complete his annual SOFIs spanned a period of four consecutive years.
2. The nature, extent and frequency of occurrence of the acts of misconduct.
The nature of Respondent's misconduct regarding the civil suit is particularly offensive in that it evidenced complete disrespect for the Court of
Common Pleas of Montgomery County and was so extreme that it brought the judicial office itself into disrepute.
Respondent's failure to list a federal tax lien in the amount of $287,500 and state tax liens totaling more than $34,000 may have been the result of his failure to understand the meaning of "creditors" as used in the SOFI form. However, considering who the creditors were, the size of the debts, Respondent's background as an attorney and the fact that completion of the SOFI form is a requirement imposed by the Pennsylvania Supreme Court, Respondent's casual approach to the requirement evidenced disrespect for that court. As such, the nature of this misconduct is also particularly offensive.
3. Whether the conduct occurred in or out of the courtroom.
The majority of Respondent's misconduct in the civil suit remained outside of the courtroom for the simple reason that he refused to comply with court orders requiring him to appear in court. For this reason, the Board suggests that insofar as this Court views in-court misconduct as meriting a more severe sanction than out-of-court misconduct, Respondent's conduct is deserving of the more severe sanction.
4. Whether the misconduct occurred in the judge's official capacity or in his private life.
Respondent's failure to file accurate SOFIs occurred in his official capacity. The misconduct is evidence of his failure to view the requirements of his position seriously.
5. Whether the judge has acknowledged or recognized that the acts occurred.
Respondent eventually acknowledged his misconduct by appearing at the final hearing in his civil case. However, he attempted to place the blame
for his misconduct on others and offered absurd explanations. During the October 24, 2019 hearing, he told the presiding judge that; (1) the plaintiff should not have expected him to pay his dues because he did not use the facility after his daughter fractured her spine, (2) he was never served with the civil complaint, (3) for two years there was "no notice," (4) the plaintiff sent lawsuit documents to his "old law firm," (5) the plaintiff failed to include his suite number in his address, (6) for about 12 months, the plaintiff "just dropped" the matter, (7) for approximately 15 months the plaintiff's attorneys "didn't even contact" him, (8) he did not "think [he] owed anything" to the plaintiff, (9) the judgment was "sent to somewhere else other than me," (10) his judicial secretary "was suppose (sic) to continue the case," and (11) he thought the proceedings had been stayed by bankruptcy. (Joint Exhibit 45, Transcript of October 24, 2019 hearing at 23:24 to 37:4.)
6. Whether the judge has evidenced an effort to change or modify his conduct.
Respondent has not evidenced a genuine effort to change or modify his conduct. Furthermore, his conduct following the filing of the complaint now before this Court reveals that he has not changed or modified his conduct.
On October 19, 2019, Respondent was deposed by Board counsel regarding his conduct in the civil suit and his failure to file accurate SOFIs. (Board Exhibit A.) Thereafter, on October 22, 2019, Respondent filed
corrected SOFIs. (Board Exhibits B through E.) On October 24, 2019, for the first time in the civil suit against him, Respondent obeyed a court order by appearing before the Montgomery Court of Common Pleas. Respondent's efforts to change or modify his conduct occurred only after he was deposed about the conduct and less than two months before the Board filed the complaint against him in the Court of Judicial Discipline. Respondent's decision to obey the court order and appear in court on October 24, 2019, as well as his decision to correct his SOFIs does not evidence an effort to change or modify his conduct, rather, his decisions evidence an effort to prevent what ultimately happened: the filing of a complaint before this Court.
When Respondent was unable to prevent the filing of the complaint before this Court, he conducted himself in a manner disturbingly similar to his misconduct in the Montgomery County civil suit.
• By letter to this Court dated January 2, 2020, Respondent requested an extension of 30 days to file a response. (Board Exhibit F.) No response was ever filed.
• On February 11, 2020, Joseph Metz, counsel for this Court, sent a letter to Respondent inquiring if he was going to be represented by counsel. (Board Exhibit G.) Respondent did not reply to the letter.
• On February 20, 2020, Respondent's judicial secretary sent an email to Attorney Metz stating that the facsimile machine in Respondent's office was malfunctioning and that very day, when she "was able to pull a few emails that were stuck in its memory," she found a communication from
Attorney Metz. Respondent's secretary stated, "the judge will be calling you shortly. He is currently on the bench addressing sentencings." (Board Exhibit H.) Board counsel is unaware if Respondent called Attorney Metz; however, given the following action by Attorney Metz, it is reasonable to conclude that he did not.
• After receiving no written reply to his February 11, 2020 letter from Respondent, Attorney Metz sent an email to Respondent on April 29, 2020, requesting that he have his counsel contact Attorney Metz. (Board Exhibit I.) Respondent did not reply to the email.
• After receiving no response to his April 29, 2020 email, Attorney Metz sent a letter to Respondent dated May 4, 2020, attempting to schedule a pre-trial conference, asking if he had counsel and, if so, requesting that he have the lawyer contact Attorney Metz. (Board Exhibit J.) Respondent did not reply to the letter.
• After receiving no response to his May 4, 2020 letter, Attorney Metz sent another letter to Respondent identical to the letter sent to Respondent on May 4, 2020. (Board Exhibit K.) Respondent did not reply to the letter.
• After receiving no response to his May 18, 2020 letter, Attorney Metz sent a letter to Respondent dated May 28, 2020, regarding availability for a pre-trial conference in July 2020. (Board Exhibit L.)
• By email dated June 4, 2020, Attorney Metz inquired of the Board and Respondent if a pre-trial conference could be scheduled for July 29. (Board Exhibit M.)
• By email dated June 5, 2020, Respondent told Attorney Metz, that a July pre-trial conference "seems acceptable. I'm back to work on Monday and I will confirm there are no emergent issues that require a different date." (Board Exhibit M.) Respondent failed to confirm his availability for the pre-trial conference.
• Thereafter, this Court issued an order scheduling the pre-trial conference for September 22, 2020, with pre-trial memos due on September 15, 2020. On September 15, 2020, Attorney Stretton entered his appearance on behalf of Respondent and requested additional time in which to file his pre-trial memorandum. This court granted the request and rescheduled the pre-trial conference for October 1, 2020.
• During the pre-trial conference, Respondent sought to excuse his failure to respond to Attorney Metz's communications stating, "I've spoken to [counsel for the Board] and Mr. Metz over the last six months or so." (Board Exhibit N, Transcript of October 1, 2020 pre-trial conference at 8:25-9:1-7)
By ignoring and delaying his responses to this Court, Respondent managed to delay the proceedings before this court by over nine months and provided persuasive evidence to this Court that he has made no lasting effort to change or modify his conduct.
7. The length of service on the bench.
Respondent has been on the bench since January 2016. It can be argued that having been a judge for such a limited period of time, he is deserving of leniency in terms of a sanction pertaining to his failure to properly complete his SOFIs. However, his short period of time as a jurist does not support leniency relative to his blatant disrespect for the authority of the Montgomery County Court of Common Pleas. Although Respondent was a judicial candidate and/or new to the bench when much of his misconduct pertaining to the civil suit in Montgomery County was committed, this Court should consider the fact that Respondent has been a licensed, practicing lawyer in Pennsylvania since 1990. As a lawyer in this Commonwealth, Respondent is required to "demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials." Lawyers have a "duty to uphold the legal process." (See Rules of Prof. Conduct, Preamble ¶5.) When his misconduct is viewed in light of his many years as an experienced attorney and now jurist, this factor weighs heavily against a lenient sanction for Respondent.
8. Whether there have been prior complaints about this judge.
In his short tenure on the bench, Respondent has already received private discipline from the Board. By letter dated March 7, 2019, and received by Respondent on March 25, 2019, the Board explained that Respondent had failed to be patient, dignified, and courteous when dealing with his court staff. Furthermore, the Board determined that Respondent had failed to require his staff to act in a manner consistent with his obligations under the Code of
Judicial Conduct. While the conduct which was the subject of the Letter of Counsel is different in many ways from the conduct now before this Court, it is similar in that it involved Respondent's failure to learn and respect the rules which are applicable to him as a jurist.
9. The effect the misconduct has upon the integrity of and respect for the judiciary.
Respondent's misconduct pertaining to the civil suit negatively impacts the integrity of and respect for the judiciary. His pattern of ignoring multiple court orders "is exactly the type of conduct which causes an ordinary citizen to believe that judges - i.e., all judges - consider themselves to be 'above the law' - a privileged class." In re Harrington, 877 A.2d 570 (Pa.Ct.J.Disc. 2005) (Judge avoided paying for parking and getting parking tickets by placing parking tickets issued to someone else on her windshield.)
10. The extent to which the judge exploited his position to satisfy his personal desires.
The evidence suggested that Respondent ignored the court orders pertaining to the civil suit because he did not have the means to pay the judgment and additional fees that continued to increase each time he failed to appear in court. (Joint Exhibit 45 at 57:22-58:6.) By ignoring the court orders requiring him to appear and respond to the civil suit, Respondent avoided being ordered to pay the plaintiff.
After telling the presiding judge that he had filed for bankruptcy, Respondent was asked by the judge when he "got discharged." Respondent allowed the court to believe his debts had been discharged by answering, "A few months later." (Joint Exhibit 45, Transcript of October 24, 2019 hearing at 38:3-10) Only when the plaintiff's counsel told the presiding judge that the bankruptcy had been dismissed without discharge of debts did Respondent clear up the confusion saying, "Judge, it wasn't discharged. We resolved the issue." (Id. at 39:17-40:4)
Board counsel is uncertain what communication Respondent's secretary was referring to as the February 11, 2020 letter from Attorney Metz to Respondent does not indicate that it was emailed or faxed to Respondent. --------
This Court has imposed a range of sanctions for misconduct similar to Respondent's misconduct in the civil suit. In In re Nocella, 79 A.3d 766, (Pa.Ct.Jud.Disc. 2013), this Court held that the judge's conduct was so extreme and outside the reasonable expectations of the public that it violated the Disrepute Clause. Id. at 791. Nocella was found to have violated the Disrepute Clause based on conduct which led to him being found in contempt of court for failure to obey two court orders and his failure to provide accurate responses to questions posed by the Philadelphia Bar Association regarding his judicial candidacy. On August 5, 2013, this Court removed Nocella from office and ordered that he be ineligible to hold judicial office in the future. Id. at 794.
In In re Harrington, 877 A.2d 570 (Pa.Ct.J.Disc. 2005), a Pittsburgh Municipal Court magistrate was found to have violated the Disrepute Clause for engaging in conduct designed to help her avoid parking tickets in the city of Pittsburgh. By the time Harrington stood before this Court for sanctioning, she was no longer on the bench because the Pittsburgh Municipal Court had been dissolved. Id. at 572. The sanction imposed on Harrington was to bar her from holding judicial office for a period of five years. Id. at 579.
This Court has never addressed the issue of an appropriate sanction for misconduct pertaining to the judicial Statement of Financial Interest requirement. In In re Horgos, 682 A.2d 447 (Pa.Ct.Jud.Disc. 1996), the only other case in which this Court reviewed conduct related to Statements of Financial Interest, the judge was charged with violations of the constitution and the Code of Judicial Conduct in effect prior to July 1, 2014 for having failed to reveal income he received as an executor for an estate on two SOFIs. In dismissing the complaint against Judge Horgos this court adopted a two pronged approach for determining whether the inaccurate responses constituted misconduct. First, the Horgos court considered whether the judge had been afforded an opportunity to revise his inaccurate response and second it considered the degree to which the inaccuracy "impacts the public trust." Id. at 453.
In the case now before the Court, Respondent has been found to have violated the Code of Judicial Conduct by filing four inaccurate Statements of Financial Interest. Furthermore, the inaccuracies involved significant debts to public taxing entities, - the Internal Revenue Service and the Pennsylvania Department of Revenue. Because the debts were owed to public taxing entities, Respondent has violated the public trust by entirely failing to report his pubic debts. In fashioning a sanction for Respondent's misconduct related to his inaccurate SOFIs, this court should seek to restore the public's trust.
III. CONCLUSION
For the reasons stated above, the Board respectfully requests that this Court sanction Respondent in a manner that is commensurate with the gravity of his misconduct and its effect on the public trust in the judiciary.
Respectfully submitted,
RICHARD W. LONG
Chief Counsel May 21, 2021
By: /s/_________
MELISSA L. NORTON
Deputy Counsel
Pa. Supreme Court ID No. 46684
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911 CERTIFICATE OF COMPLIANCE
I certify that this filing complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania that require filing confidential information and documents differently than non-confidential information and documents.
Submitted by: Judicial Conduct Board of Pennsylvania
Signature: __________
Name: Melissa L. Norton
Deputy Counsel
Attorney No.: 46684 PROOF OF SERVICE
In compliance with Rule 122 of the Court of Judicial Discipline Rules of Procedure, on the date below, a copy of the JUDICIAL CONDUCT BOARD'S SANCTION MEMORANDUM was sent by electronic mail and Frist Class Mail to Samuel C. Stretton, Esquire counsel for Judge Scott DiClaudio, at the following address:
Samuel C. Stretton, Esquire
103 South High Street
P.O. Box 3231
West Chester, PA 19381
Respectfully submitted, DATE: May 21, 2021
By: /s/_________
MELISSA L. NORTON
Deputy Counsel
Pa. Supreme Court ID No. 46684
Judicial Conduct Board
Pennsylvania Judicial Center
601 Commonwealth Avenue, Suite 3500
P.O. Box 62525
Harrisburg, PA 17106
(717) 234-7911
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