Commonwealth v. Hoffman

• Decision Date: 02 July 1959
• Citation: 152 A.2d 726,396 Pa. 491
• Parties: COMMONWEALTH of Pennsylvania v. Maurice HOFFMAN and Mary Hoffman.
• Court: Pennsylvania Supreme Court

152 A.2d 726

396 Pa. 491

COMMONWEALTH of Pennsylvania v. Maurice HOFFMAN and Mary Hoffman.

Supreme Court of Pennsylvania.

July 2, 1959.

Leon H. Kline and Joseph H. Foster, Philadelphia, for petitioners.

Carl A. Niehoff, Dist. Atty., of Jim Thorpe, Thomas D. Caldwell Sr., Caldwell, Fox & Stoner, of Harrisburg, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN, BOK, and McBRIDE, JJ.

CHARLES ALVIN JONES, Chief Justice.

This matter is here on special certiorari. We issued the writ on petition of Maurice Hoffman and Martin H. Philip, Esquire. The petition sets forth that President Judge McCready of the Court of Common Pleas of Carbon County, sitting as a committing magistrate, had issued warrants for the arrest of the petitioners for an alleged indirect contempt, had required bail of each of them in the sum of $500 to be posted forthwith on pain of immediate incarceration and had ordered the District Attorney to submit to the convening grand jury bills of indictment for the offense charged--all without a preliminary hearing which the accused demanded and were denied.

The background of the above related circumstance lay in prior court proceedings taken in connection with the Commonwealth's condemnation of a portion of a tract of land in Carbon County owned by Maurice Hoffman and his wife for the improvement of Highway Route No. 29. To obtain possession of the condemned property the Commonwealth filed a petition in the court below for a writ of possession. At a hearing before Judge McCready, on the Commonwealth's petition, the Hoffmans were represented by Martin H. Philip Esquire. After argument, Judge McCready issued a writ of habere facias possessionem on December 30, 1958, ordering the Sheriff of Carbon County to deliver to the Commonwealth possession of the condemned property of the Hoffmans. On the following day (December 31st), Mr. Philip, as attorney for the Hoffmans, took an appeal to this court from the order of the court below awarding the writ of possession.

On Friday, January 2, 1959, the Commonwealth attempted to remove from the condemned right of way the junk automobiles and other scrap which were the property of the Hoffmans. The words and actions of Maurice Hoffman and his attorney, Martin Philip, on that occasion, constitute the basis of the alleged contempt. In an affidavit taken and filed three months later (April 3, 1959), when the contempt proceeding was instituted on the petition of the Commonwealth, Fred j. Gossler, a right of way agent of the Department of Highways, deposed that he had asked Maurice Hoffman where he wanted the cars placed; that Hoffman, after displaying some legal papers, produced a rifle which he proceeded to load and then shouted to Gossler, 'that he was in the service and had been taught how to use a rifle and if [Gossler] removed his cars he [Hoffman] would be arrested for murder before nighe time' adding that 'whichever one of you men who gives the order to move the cars, I will shoot on the spot'; that the sheriff subsequently came to the premises and told Gossler to continue with the moving; that Philip, Hoffman's attorney, then appeared and said that he had a two o'clock p. m. appointment with Judge McCready; that he would institute proceedings for the arrest of Gossler if he moved any cars during his absence; that he 'was having a warrant served for the sheriff's arrest and that anybody else who interfered would get the same treatment'; and that Gossler was then ordered by his superiors to leave the property and not attempt to clear the premises that day.

At two o'clock p. m. on the same day, Friday, January 2nd, Judge McCready denied Hoffman's application for a supersedeas sur his appeal to this court from the order of possession. At approximately ten o'clock p. m. that evening Mr. Justice B. R. Jones, at Wilkes-Barre, granted a temporary stay of the possession order pending further order of this court after convening in regular session on the following Monday, January 5, 1959, when Hoffman's petition for a supersedeas could be considered. On January 7, 1959, we entered an order denying Hoffman's application for a supersedeas. Thereafter, the condemned right of way was promptly cleared with the assistance of Hoffman, who also discontinued his appeal to this court.

Three months later, viz., on April 3, 1959, the Commonwealth filed a petition in the court below praying that Hoffman and Philip be adjudged in contempt of court for what had occurred on January 2nd, as outlined in Gossler's affidavit, which was attached to the Commonwealth's petition as an exhibit. The court granted a rule on the petition, returnable April 15, 1959, which called upon the respondents, Hoffman and Philip, to show cause why they should not be adjudged in contempt in accordance with the prayer of the Commonwealth's petition. Philip and Hoffman, represented by separate counsel, filed preliminary objections to the petition questioning the jurisdiction of the court of common pleas on the ground that the contempt, as alleged in the petition, was indirect and criminal and that the respondents were accordingly entitled to a trial by jury on the charge. Counsel for Philip and Hoffman were informed by Judge McCready that, if they desired to file an answer, they would have to do so before oral argument on the preliminary objections, which was scheduled for April 22, 1959. Counsel complied by filing an answer to the merits on April 21, 1959, and were informed by Judge McCready that he would hear argument on the preliminary objections to the jurisdiction and, without first disposing of them, would immediately enter upon a hearing on the merits. It was then that counsel for Philip and Hoffman first petitioned this court for a writ of certiorari. On the same day (April 21st), on our order, all proceedings in the case were stayed pending our consideration of the petition for certiorari. We denied the writ on April 25, 1959, in the belief and with the understanding that Judge McCready would first hear argument on the preliminary objections to the jurisdiction and, if they were overruled, would then set a day for a hearing on the merits at some reasonable period in the future to give counsel ...