In re Merlo

58 A.3d 1, 619 Pa. 1, 2012 WL 4473287, 2012 Pa. LEXIS 2259
CourtSupreme Court of Pennsylvania
DecidedSeptember 28, 2012
StatusPublished
Cited by22 cases

This text of 58 A.3d 1 (In re Merlo) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Merlo, 58 A.3d 1, 619 Pa. 1, 2012 WL 4473287, 2012 Pa. LEXIS 2259 (Pa. 2012).

Opinion

OPINION

Justice TODD.

In this appeal, we consider whether the Court of Judicial Discipline (“CJD”) erred in permanently removing Lehigh County Magisterial District Judge Maryesther S. Merlo (hereinafter “Appellant”) from judicial office. After careful consideration, we find the CJD’s sanction is lawful under the circumstances of this case. Accordingly, we affirm.

I. Background

In November 2003, Appellant, a licensed attorney, was elected as a magisterial district judge in Allentown, Pennsylvania. Appellant began serving her term in January 2004, and, at the conclusion of her first six-year term, she successfully campaigned for reelection in 2009. Her second term began in January 2010. On November 4, 2010, the Judicial Conduct Board [3]*3(“Board”) filed a seven-count complaint with the CJD, alleging Appellant violated various Rules Governing Standards of Conduct of Magisterial District Judges (the “MDJ Rules”), including MDJ Rules 2A,1 3A,2 4A,3 4C,4 and 5A.5 The complaint further alleged Appellant violated art. V, § 18(d)(1) of the Pennsylvania Constitution6 by neglecting or failing to perform the duties of her office and by engaging in conduct which brings the judicial office into disrepute. On February 25, 2011, the Board filed a second complaint containing three new sets of factual allegations relating to violations alleged in the first complaint. The complaints were consolidated, and a three-day trial commenced on May 31, 2011. The CJD classified the extensive evidence presented by the Board into four categories: Work Habits; Truancy Cases; Landlord Tenant Cases; and Demeanor and Abuse of Power.

A. Work Habits

At trial before the CJD, the Board introduced evidence of Appellant’s chronic absenteeism and habitual lateness in appearing for court. Specifically, the Board introduced a chart detailing the dates Appellant “called off.” Between September 12, 2007 and December 15, 2009, Appellant called off on 116 days, and took 49 days of vacation, thereby failing to report to work at all on 30% of the workdays during that period. In addition, it was established that, on the days Appellant did not call off, she was never on time. Rather, her customary arrival time at court was between 10:00 and 10:30 a.m., despite the fact that hearings were always scheduled to begin at 9:30 a.m., and lawyers and litigants therefore were kept waiting. One witness, a police officer, testified that, in light of the number of times he appeared at a [4]*4scheduled hearing before Appellant, only to learn after he arrived that Appellant had called off, he made it a practice to call Appellant’s courtroom prior to leaving his home, Despite this practice, he recounted at least one occasion when he was told Appellant would be there, but, upon arriving at the courthouse, learned she had called off.

The Board also presented testimony regarding the detrimental impact of Appellant’s conduct on her staff, who often spent most of the morning making telephone calls to attorneys, litigants, and witnesses to advise them that their hearings were continued; preparing and mailing notices of new hearing dates; and attempting to placate angry litigants and witnesses. These activities interfered with the staffs ability to handle the regular, day-to-day business of the court. Deborah Stringer, Appellant’s former office manager, testified that Appellant’s excessive absenteeism caused a backlog of paperwork in the office, such that often cases were not closed in a timely manner; and criminal defendants were not promptly given credit for time served. N.T., 5/31/11, at 164-65.

B. Truancy Cases

The Board next presented evidence regarding Appellant’s handling of truancy matters which came before her. William Allen High School, which is part of the Allentown School District, is located in Appellant’s jurisdiction. The high school had a serious truancy problem, and, as a result, Suzette Arcelay, the home school visitor for the district, was required to appear before Appellant two days a week for truancy hearings,7 where she would present documentation of illegal absences. Arce-lay testified that she customarily arrived at court between 8:00 and 9:00 a.m. for hearings scheduled for 9:30 a.m., but that Appellant typically did not arrive until between 10:00 and 10:30 a.m. N.T., 6/1/11, at 367. Arcelay further testified that Appellant sometimes would call off on the day of the truancy hearings, calling in as late as 10:30 or 11:00 a.m., and the hearings would need to be continued, after the families were already present. Id. at 369. In fact, the school district received numerous complaints from parents who missed work in order to attend a child’s truancy hearing, which ultimately was continued because Appellant failed to appear. As a result of receiving so many complaints regarding Appellant’s absences and tardiness, Patricia Welle-Feldman, the student services coordinator for the Allentown School District, ultimately spoke with her supervisor, and they contacted the Lehigh County Court Administration Office, requesting reassignment of truancy cases to a different judge. Id. at 441.

The Board also introduced evidence of Appellant’s procedure for handling truancy cases when she was in court. Prior to 2009, when a truant student and his or her parents did not appear for a scheduled hearing, Appellant would meet with Arce-lay after the completion of the hearings, identify the “no-shows,” and either continue the hearing or impose a fine in absen-tia. Beginning in 2009, Appellant changed her procedure, and no longer disposed of the “no-shows” at the end of the day. Rather, Appellant would tell Arcelay that she was tired, and that she would give Arcelay the information “the next day or whenever she got a chance to do them.” Id. at 392.

The Board introduced evidence that, in 2009, Appellant delayed the adjudications of 30 truancy cases after the child did not report for the hearing as follows:

[5]*56-day delay 4 eases
13-day delay 6 cases
27-day delay 5 cases
34-day delay 3 cases
116-day delay 12 eases

Id. at 394-95. Welle-Feldman explained that these delays caused serious problems for the school district because the students who were involved already had truancy problems, but suffered no immediate consequences when they chose not to report for their hearing, and the student would continue to be truant until sentence was imposed. Id. at 446^48. (“When a case is continued, that student now has an opportunity for another four to six weeks of school absence. By the time anyone actually addresses something, that student could be out of school for 40-60 or more days.”). Thus, a student’s record of truancy often was extended due to Appellant’s failure to adjudicate the matters in a timely fashion. Moreover, unsurprisingly, Welle-Feldman testified that it set a poor example for students charged with truancy or tardiness to be summoned to court where the judge herself failed to appear, or appeared late, for the hearing. Id. at 440.

C. Landlord/Tenant Cases

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Cite This Page — Counsel Stack

Bluebook (online)
58 A.3d 1, 619 Pa. 1, 2012 WL 4473287, 2012 Pa. LEXIS 2259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-merlo-pa-2012.