In re DiClaudio

• Decision Date: 21 May 2021
• Docket Number: 3 JD 2019
• Parties: IN RE: Judge Scott DiClaudio Court of Common Pleas First Judicial District Philadelphia County
• Court: Pennsylvania Court of Judicial Discipline

IN RE: Judge Scott DiClaudio Court of Common Pleas First Judicial District Philadelphia County

3 JD 2019

COMMONWEALTH OF PENNSYLVANIA COURT OF JUDICIAL DISCIPLINE

May 21, 2021

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 ofCommon 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 blamefor 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.¹ (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 filedcorrected 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 fromAttorney Metz.² 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,

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