In re McFalls

• Decision Date: 12 April 2002
• Citation: 568 Pa. 228,795 A.2d 367
• Parties: In re Assignment of Judge H. Patrick McFALLS, Jr.
• Court: Pennsylvania Supreme Court

795 A.2d 367

568 Pa. 228

In re Assignment of Judge H. Patrick McFALLS, Jr.

Supreme Court of Pennsylvania.

Argued April 9, 2002.

Decided April 12, 2002.

Robert O. Lampl, Pittsburgh, for H. Patrick McFalls.

Howard M. Holmes, Philadelphia, for Judge Kelly and Judge James, et al.

Before ZAPPALA, C.J., CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

ORDER

PER CURIAM.

AND NOW, this 12th day of April, 2002, upon consideration of the Petition for Review, the Answer to Rule to Show Cause, the Brief on behalf of Judge H. Patrick McFalls in regard to Rule to Show Cause dated February 22, 2002, the Brief in Support of Rule to Show Cause on behalf of Petitioners, and the admissions of record, and after hearing on the matter, it is hereby ordered that the Respondent is suspended without pay for a period of thirty (30) days. The suspension is effective as of the date of this Order. It is further ordered that the medical benefits of the Respondent are not to be suspended during the thirty (30) day period.

In the exercise of this Court's discretion, it is further directed that the matter is referred to the Judicial Conduct Board pursuant to Pa. Const. Art. V, § 18.

Opinion to follow.

OPINION

Chief Justice ZAPPALA.

This opinion is filed in support of the per curiam order of this Court dated April 12, 2002. In our order, we directed that Respondent, the Honorable Judge H. Patrick McFalls, be suspended, without pay, for a period of thirty (30) days.¹ Further, we referred the matter to the Judicial Conduct Board pursuant to the Pennsylvania Constitution, Article V, Section 18.²

This matter was commenced before our Court on February 12, 2002, by the filing of an Emergency Petition for Issuance of Rule to Show Cause, filed by Petitioners, the Honorable Robert A. Kelly, President Judge of the Court of Common Pleas of Allegheny County, and the Honorable Joseph M. James, Administrative Judge of the Civil Division of the Court of Common Pleas of Allegheny County. Specifically, in the petition, Petitioners sought issuance of a rule to show cause why a judge of a court of common pleas has repeatedly failed to comply with directives of his President Judge and Administrative Judge to meet with them to effect his return to judicial duties and to begin his judicial assignment, and is therefore a matter subject to the original and plenary jurisdiction of this Supreme Court of Pennsylvania pursuant to Article V, Sections 1, 2, and 10 of the Pennsylvania Constitution and 42 Pa. C.S. § 721 and § 726.

Petitioner's Emergency Petition for Issuance of Rule to Show Cause at 1, ¶ 1.³

By order dated February 22, 2002, this Court entered a per curiam order issuing a rule upon Respondent "to show cause for his alleged failure to comply with his judicial assignment, as well as why he should not be subject to interim suspension from his judicial duties." The rule was returnable on February 27, 2002, and, on that day, Respondent filed his Answer to Emergency Petition for Issuance of Rule to Show Cause. Thereafter, this Court, by order dated March 8, 2002, directed the parties to appear before the Court during its April argument session to consider "whether sanctions, i.e., no further action by the Court, private or public reprimand, suspension with or without pay, or removal from office, should be imposed upon the Respondent."

The relevant factual averments relating to this matter, as set forth in the parties' petition and answer, are as follows. Respondent, a duly-commissioned Judge of the Court of Common Pleas of Allegheny County, first elected in November 1985, and subsequently retained in November 1995, was assigned to "general assignment" in the civil division, hearing jury, non-jury and equity cases. Id. ¶ ¶ 3 & 4. On November 14, 2001, Respondent fired his tipstaff, secretary and law clerk, and, thereafter, on or about December 5, 2001, Respondent's employees filed federal lawsuits against him alleging that they were fired because they had reported that Respondent abused alcohol and exhibited behavior that they believed affected his ability to perform his duties. Id. ¶ 5.⁴

Respondent went on administrative leave with pay on December 6, 2001, and has remained on paid administrative leave since that date. Petition at 2, ¶ 6. At Petitioners' request, Respondent was evaluated by Dr. Todd Marion, including several hours of face to face interviews and telephone interviews, beginning on December 7, 2001. Petition at 2, ¶ 7; answer at 2, ¶ 7. Based on the result of the evaluation conducted by Dr. Marion, Respondent requested that he resume judicial duties. Petitioners then attempted to meet with Respondent to discuss his judicial assignment and, in light of recent events, for them to provide him with necessary conditions under which he would return to judicial duties. Petition at 2, ¶ 8. In paragraph 9 of the petition, Petitioners set forth, in detail, the factual scenario that is at the root of the controversy pending before our Court. In this paragraph, Petitioners state the following:

9. Judge McFalls failed to schedule the required meeting and failed to attend meetings scheduled by President Judge Kelly on five occasions, as follows:

a. By telephone conversation on Thursday, January 10, 2002, Robert O. Lampl, counsel for Judge McFalls, advised AOPC counsel that Judge McFalls would return to judicial duties on Monday, January 14, 2002, and agreed that Judge McFalls would telephone President Judge Kelly prior to that date to arrange the required meeting with President Judge Kelly and Judge James to discuss Judge McFall's judicial assignment and the aforementioned guidelines to facilitate his return to judicial duties. Judge McFalls did not telephone President Judge Kelly, and did nothing to further his return from administrative leave to judicial duties. Nothing further was heard from Judge McFalls until Wednesday, January 16, 2002, six days later.

b. Thereafter, on Wednesday, January 16, 2002, Robert O. Lampl, counsel for Judge McFalls, telephoned AOPC counsel, with Judge McFalls also conferenced in to the telephone conversation from another telephone. Judge McFalls and his counsel told AOPC counsel at that time that Judge McFalls would return to judicial duties on Friday, January 18, 2002, and would contact President Judge Kelly prior to that time to schedule the required meeting. Judge McFalls never arranged a meeting with President Judge Kelly and did nothing to further his return from administrative leave to judicial duties.

c. After regular chambers hours on Thursday, January 17, Judge McFalls left a message on President Judge Kelly's chambers message machine, stating that Judge McFalls would be returning on Monday, January 21, 2002, a court holiday. Judge McFalls never scheduled a meeting, and did not appear on Monday, January 21, 2002 d. Because of Judge McFalls' repeated failure to contact President Judge Kelly to schedule a meeting with himself and Judge James, President Judge Kelly scheduled a required meeting for Thursday, January, 31, 2002, at 2:30 p.m., giving Judge McFalls more than ten days notice by letter to his home and chambers. (See letter dated January 18, 2002, from President Judge Kelly to Judge McFalls, attached at Exhibit D).

e. Judge McFalls did not attend the scheduled meeting. During the time the meeting was to be held, at 2:30 p.m., Robert O. Lampl, counsel for Judge McFalls, telephoned President Judge Kelly and left a message that Judge McFalls had been attempting, since early morning, to fly back to Pittsburgh from Florida, but could not get onto an airplane because he had no photo identification. Mr. Lampl requested another meeting. President Judge Kelly made a record setting forth the fact that Judge McFalls did not attend the meeting. (See Transcript dated 1/31/02, attached as Exhibit E).

f. In response to the request of counsel for Judge McFalls to reschedule the meeting, President Judge Kelly and Judge James once again rescheduled the administrative meeting to give Judge McFalls his judicial assignment and set forth guidelines for his return to judicial duties. The meeting was rescheduled for 9:00 a.m. on Monday, February 4, 2002. Judge McFalls was notified (1) through his counsel (by telephone conversation with AOPC counsel, and by letter from AOPC counsel to Robert O. Lampl, counsel to Judge McFalls, attached as Exhibit F); and (2) personally advised by telephone call to Judge McFalls via his cell phone, in a conversation with Eileen Morrow, secretary to President Judge Kelly, of the rescheduled meeting. Judge McFalls was further advised that his attendance at the rescheduled meeting was mandatory, and that no further excuses would be accepted. Judge McFalls and his counsel both indicated that Judge McFalls understood and would attend the meeting.

g. Judge McFalls did not attend the rescheduled meeting, and at 9:29 a.m., nearly one-half hour following the time the meeting was to begin, President Judge Kelly made a record setting forth the fact that Judge McFalls did not attend the meeting. (See Transcript dated 2/4/2002, attached as Exhibit G).

h. Nothing further was heard from Judge McFalls until Tuesday, February 5, at approximately 3:45 p.m., when Judge McFalls physically appeared in Judge Kelly's chambers. Judge Kelly was not in his chambers at that time, and Judge McFalls was so informed by Judge Kelly's secretary.

i. Judge McFalls, without meeting with Judge Kelly and Judge James, as required, required the calendar control clerk to provide him with argument files and requested the court administrator of Allegheny County to approve hiring of two personnel employees (tipstaff and law clerk).

j. On February 8, 2002, Judge Kelly sent a letter to Judge McFalls, advising Judge McFalls that his taking of calendar control files is interpreted "as an attempt to resume judicial duties without complying with the terms, conditions and steps outlined in previous correspondence." (See letter

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