This was an appeal out of Jefferson County. The gist of the underlying facts and history leading up to this appeal is this: this was a local code enforcement case that got out of control and resulted in contempt proceedings for both Clifford Null and his attorney, Kurt D. Mitchell. Originally, Null had been cited by way of two private criminal complaints, filed with the local magistrate, alleging violations of the Construction Code Act. He had disregarded orders to stop construction on his porch and garage without permits.
Null appealed his convictions from the magistrate to the Court of Common Pleas where he was represented by Attorney Mitchell. President Judge Foradora found Null guilty and imposed fines against him on an escalating scale, resulting in a total fine of $267,268. Null accordingly appealed to the Superior Court, which reversed the judgment of sentence and remanded the case to Judge Foradora to determine whether the fine was too severe. In that first appeal, the Superior Court highlighted that Judge Foradora “did not address whether the escalating fine of $267,268 was reasonably proportionate to the crimes which occasion them.” Judge Foradora was to address that question on remand.
When the case went back down to Judge Foradora, rather than directly address the Superior Court’s remand order, Judge Foradora entered an order directing the parties “to mediate” the amount of the fine before another judge, the Honorable Francis Fornelli—a senior judge from another county. In light of this order, Null tried his hand at a little bit of litigation strategy: he tried to withdraw his prior appeal that he took from the magistrate that landed him in the court of common pleas. That was denied. Moreover, Null’s attorney filed a motion that Judge Foradora recuse himself and continue the mediation. That too was denied. Lastly, Null through his counsel filed a motion seeking to vacate the order to mediate, arguing that the referral of the criminal matter to mediation violated his constitutional rights, was not authorized by the Rules of Criminal Procedure, and was an improper delegation of judicial power. Again, Judge Foradora denied this motion.
Ultimately, Null attended the mediation proceeding, but Attorney Mitchell did not attend. After a full day of mediation, Judge Fornelli entered an order stating that the parties consented to “settle” and Null agreed to pay $40,000 in fines. That same day, too, Judge Fornelli issued another order directing Attorney Mitchell to appear in court to show cause why he should not be held in contempt for failing to attend the mediation. Attorney Mitchell did not show up for that show-cause hearing, so another show-cause hearing was scheduled and Judge Fornelli directed that a hearing be held in Attorney Mitchell’s absence should he fail to appear again. This time Attorney Mitchell filed a motion to vacate the show-cause order and Judge Fornelli denied that. Judge Fornelli then later recused himself.
Months following this, Judge Foradora reentered the picture. He had requested the that Supreme Court of Pennsylvania temporarily assign a judge to “try all proceedings in Commonwealth v. Clifford Null commencing 8/29/16.” Per Chief Justice Saylor that request was granted and Judge Timothy Creany was assigned to that case. Once Judge Creany was on the case, Judge Creany issued an decision holding Attorney Mitchell in contempt and fining him $1,000; and subsequently, another contempt hearing was scheduled for Null due to his failure to make payments toward the $40,000 negotiated “settlement.” Interestingly, Judge Foradora reappears for this hearing and presides over it. Re-enter Attorney Mitchell. He appears on Null’s behalf, objects to Judge Foradora’s presence given the Supreme Court’s Order appointing Judge Creany to “try all proceedings,” but Judge Foradora overrules the objection, stating: “Let me amend that to say it was to try your contempt.” According to Judge Foradora, the Supreme Court’s order was meant only to recuse him from trying Attorney Mitchell’s contempt proceeding. Therefore, the contempt hearing moved forward for Null; Judge Foradora held Null in contempt; he was then taken into custody; and 24 hours later Null paid the balance of his fine. Thus the lead up to this appeal.
While a host of issues were raised on appeal—six altogether—really two issues were of importance. The Superior Court addressed Null’s contention that it was error for the trial court to deny him the ability to withdraw his summary appeal from the magistrate’s determination. And the Superior Court addressed the contempt proceedings for Null and Mitchell and Judge Foradora’s presiding over one of them.
The first issue of the attempted withdrawal of the appeal from the magistrate was resolved by reference to the Rules of Criminal Procedure, specifically Rule 462(E). In that rule there is language that reads, “If the defendant withdraws the appeal.” Null claimed that the rule entitled him to withdraw his appeal after a new trial in the court of common pleas, thus having the effect of reinstating the fine imposed at the magisterial level. The Superior Court disagreed. It reasoned that if Rule 462 is read sequentially, and subpart (E) is considered in context, the fair reading of the rule permits a defendant to withdraw his appeal up to the moment the new trial begins. The Court said:[N]ull’s construction of subsection (e), under which he could withdraw his appeal after sentencing, or even after remand from this Court, would lead to an absurd result. Under this regime, Null could force the Commonwealth and trial court to prosecute and try him, respectively, in a de novo trial but then unilaterally withdraw his appeal if he disliked the result of trial. We doubt that our Supreme Court intended to allow defendants to waste the Commonwealth’s and trial court’s precious resources in this manner.
The second issue—regarding the contempt proceedings—was similarly resolved in a straightforward manner. Essentially, the Superior Court said that Null’s and Attorney Mitchell’s contempt followed from proceedings that were never authorized by the Superior Court, thus there could be no contemptuous actions stemming from what were unlawful actions of the court. The principle of law went something like this:
It is well-settled that following remand, the trial court below must comply strictly with this Court’s mandate and has no power to modify, alter, amend, set aside, or in any measure disturb or depart from this Court’s decision as to any matter decided on appeal.
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In those instances where a court enters an order without authority or legal right to make such an order, it is powerless to attempt its enforcement . . . The disregarding of an order in excess of the court’s authority does not give rise to contemptuous conduct by the parties involved.
Therefore, since the Superior Court never authorized Judge Foradora to “mediate” Null’s case, the judge was powerless to order mediation, and the court was accordingly powerless to hold either Null or Attorney Mitchell in contempt for failure to attend mediation or comply its outcome.
Overall, the Superior Court wiped the slate clean and remanded the case for further proceedings before a new jurist to consider its original remand order.