In re Zupsic, No. 1 JD 05.

• Decision Date: 29 December 2005
• Docket Number: No. 1 JD 05.
• Citation: 893 A.2d 875
• Parties: In re Joseph ZUPSIC, Former Magisterial District Judge In and For Magisterial District 36-3-03 Beaver County.
• Court: Pennsylvania Court of Judicial Discipline

Page 875

893 A.2d 875

In re Joseph ZUPSIC, Former Magisterial District Judge In and For Magisterial District 36-3-03 Beaver County.

No. 1 JD 05.

Court of Judicial Discipline of Pennsylvania.

December 29, 2005.

COPYRIGHT MATERIAL OMITTED

Before: SPRAGUE, P.J., HALESEY, CAPOFERRI, PANEPINTO, O'TOOLE, SANDLER and LAMB, JJ.

OPINION BY Judge LAMB.

I. INTRODUCTION

The Judicial Conduct Board (Board) filed a Complaint with this Court on February 9, 2005 against Magisterial District Judge Joseph Zupsic (Respondent) in which the Board charges the Respondent with various violations of the Pennsylvania Constitution and of the Rules Governing Standards of Conduct of Magisterial District Judges. These charges arise out of five separate incidents which are set out separately in five parts in the Complaint. These five incidents are identified as:

Part 1. Commonwealth v. Anthony Martorella, set out in paragraphs 3-6 of the Complaint. The Board charges that Respondent's conduct described in Part 1 is such that:

(a) brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution, and

(b) prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.

Part 2. Commonwealth v. David Presto, set out in paragraphs 7-8.3.5 of the Complaint. The Board charges that Respondent's conduct described in Part 2 is such that:

(a) brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution, and

(b) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.

Part 3. Commonwealth v. William G. Cornell, set out in paragraphs 9-12 of the Complaint. The Board charges that Respondent's conduct described in Part 3 is such that:

(a) brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution,

(b) prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution, and

(c) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.

Part 4. Commonwealth v. Kelly Jo Schupp, set out in paragraphs 13-18 of the Complaint. The Board charges that Respondent's conduct described in Part 4 is such that:

(a) brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution,

(b) prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution, and

(c) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.

Part 5. Commonwealth v. Anson M. Murgenovich, set out in paragraphs 19-23 of the Complaint. The Board charges that the conduct described in Part 5 is such that:

(a) brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution,

(b) prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution, and

(c) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.

The Board and the Respondent have submitted stipulations as to some of the facts in the case pursuant to C.J.D.R.P. No. 502(D)(2). The Court accepted the pertinent stipulations and proceeded to trial. The Court now makes its Findings of Fact; those which have been stipulated are so designated.

II. FINDINGS OF FACT

1. The Judicial Conduct Board (hereinafter referred to as "Board") is empowered by Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania to file formal charges alleging ethical misconduct on the part of judges and to present the case in support of the formal charges before the Court of Judicial Discipline. (Stipulation No. 1).

2. Pursuant to Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania and Judicial Conduct Board Rule of Procedure 31(A)(3), promulgated by the Pennsylvania Supreme Court on March 20, 1995 (amended 1996), the Board is granted authority to determine whether there is probable cause to file formal charges, and, when it concludes that probable cause exists, to file formal charges, against a justice, judge, or justice of the peace, for proscribed conduct and to present the case in support of such charges before the Court of Judicial Discipline. (Stipulation No. 2).

3. Since on or about November 1998, the Respondent has served continuously to March 5, 2005, when he resigned as Magisterial District Judge for Magisterial District 36-3-03 in Beaver County, the Thirty-Sixth Judicial District, Pennsylvania, encompassing the Townships of Center, Greene, Potter and Raccoon, and the Boroughs of Georgetown, Hookstown, Monaca and Shippingport, with an office located at 226 Front Center Grange Road, Aliquippa, Pennsylvania 15001. (Stipulation No. 3).

PART 1. Commonwealth v. Anthony Martorella

4. In April of 1999 Jeffrey Dobo reported to the Pennsylvania State Police that he had accumulated a debt with Anthony Martorella and was unable to pay it. As a consequence, Dobo reported, Martorella was threatening that he was going to kill Dobo or injure his family (N.T. 162).

5. The State Police instituted an investigation and, on April 28, 1999, had officers in place at Dobo's home and had placed several phone taps on Dobo's phones. Trooper Donald Neill was the officer in charge at Dobo's home. On that date, Martorella called Dobo at his home. Dobo told Martorella he was not going to pay him back the money. Martorella became enraged and told Dobo he was coming to his house to kill him. Shortly thereafter, Martorella came speeding up the road to Dobo's house, jumped out of the car, ran to the front door, forced his way into the residence, all the time yelling that he was going to kill Dobo, at which point he was arrested by the State Police officers who were present at the Dobo residence. (N.T. 162-64).

6. Trooper Neill filed a criminal complaint with District Justice Swihart on April 28, 1999 charging Burglary, Terroristic Threats, Theft by Extortion and Harassment by Communication at Docket # CR-95-99. (Stipulation No. 4).

7. District Justice Swihart set bail at $250,000 and scheduled a preliminary hearing for June 1, 1999. (N.T. 164-65).

8. Sometime shortly before the preliminary hearing, Trooper Neill received a telephone call from Respondent who asked him to stop by his office in the next day or two and talk to him. Trooper Neill did go to Respondent's office and, when he did, Respondent closed the doors and asked about the Martorella case. Respondent told Neill that Martorella was either a relative or friend of Respondent's previous employer and that Martorella was "really not a bad guy" and asked "if there was anything [Trooper Neill] could do about the case." (N.T. 165-67).

9. Trooper Neill told Respondent that the case involved a very serious incident and that there was nothing that could be done and that the State Police would be obligated to pursue the charges as filed. Despite Neill's response, Respondent persisted to insist that Martorella wasn't a bad guy and that he (the Respondent) would appreciate it if there was anything Neill could do for Martorella. (N.T. 167).

10. Immediately after this meeting, Trooper Neill returned to the State Police Barracks and reported the incident to David Liberum, supervisor of the Pennsylvania State Police White Collar Crime Unit. He reported it to no one else, including the Judicial Conduct Board. (N.T. 172, 176-77).

11. The Judicial Conduct Board first became aware of Respondent's conduct in the Martorella case in August 2003, when, during the course of its investigation of Respondent's conduct in the Kelly Jo Schupp case, the Board's Investigator, Douglas Miller, was advised by a confidential source that he should talk to Trooper Neill about Respondent. A few days later Miller interviewed Neill who then reported the facts of the Martorella case set out in Findings of Fact Nos. 4-9. (N.T. 180-82).

12. Some time after Martorella's preliminary hearing at which he was held for court, Trooper Neill received a call at his home from the Respondent. On this occasion, Respondent importuned Trooper Neill to consider ARD for Martorella. Trooper Neill informed Respondent that the Martorella case "was not an ARD appropriate case." Martorella eventually pled guilty to making terroristic threats. (N.T. 167-68).

PART 2. Commonwealth v. David Presto

13. On or about March 21, 2001, David Presto was charged under Docket # CR-59-01 with assaulting an inmate at the Beaver County Jail while Presto was employed there as a guard. The complaint was filed before Magisterial District Judge Janet M. Swihart, District Court 36-3-04. (Stipulation No. 5).

14. Since at least as early as 1999, until August 2004, David Presto's father, James Presto, was a frequent visitor at Respondent's office, engaging in private meetings with Respondent in the courtroom or in his office "most of the time behind closed doors." (N.T. 122-31, 133-34, 136). During this period of time Respondent had lunch with James Presto at a local restaurant on a number of occasions. (N.T. 134, 137). During this period of time James Presto had no business having to do with Respondent's district court (N.T. 125), but did have business with Respondent unrelated to Respondent's district court. (N.T. 128-29; 141-53).

15. Sometime in early 2000 a friend of Respondent's, named John Sabino, told Respondent he was in serious financial trouble and asked Respondent if he would raise $50,000 which he would repay in two or three weeks. Respondent did raise the $50,000 in cash which included $12,000 from James Presto and $10,000 from himself. (N.T. 145-46; Zupsic deposition, p. 53). Respondent then delivered the cash to Mr. Sabino in the parking lot of D'Angela's Doughnut Shop...