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Cancellieri v. De Modica

Decided: November 4, 1959.


Kolovsky, J.s.c.


[57 NJSuper Page 601] Trial of the above-entitled automobile negligence case resulted in verdicts of "no cause for action" on both the main case and the counterclaim. Thereafter, plaintiffs filed a petition, on which an order to show cause issued, by which plaintiffs sought to have Donald V. Moran, Thomas Sherman, Matthew Vallone, Robert J. Alberque, and State Farm Mutual Automobile Insurance Company (hereinafter called "respondents") adjudged guilty of a criminal contempt of court for

"abuse of process and for allegedly examining and obtaining by fraud, deceit and misrepresentation, confidential and privileged records consisting of personal Law Diary and personal message book of Nicholas Martini, attorney for the plaintiffs in the above matter on February 24, 1959, and for making false and deceitful representations that they, the said parties or either of them, were requested and authorized by Nicholas Martini to examine and obtain said confidential and privileged records, and induce his secretary, Theresa Greco, to give depositions thereon, in an automobile behind the Court House, Paterson, New Jersey, on said date, when, in fact, said Nicholas Martini at no time requested or authorized either of said parties to examine or obtain said records and obtain a deposition from his secretary, regarding confidential and privileged matter relating to the above entitled action then pending and on trial in this Court."

State Farm Mutual Automobile Insurance Company was defendants' liability insurance carrier; respondent Alberque is an attorney who was retained by the carrier to appear for the defendants; Moran is an employee of the insurance company; Sherman is an investigator retained by Alberque; and Vallone is Sherman's employee. On the return day of the order to show cause, respondents pleaded not guilty.

The court now has before it for determination a motion, made by respondents on completion of the testimony offered in support of the charges, seeking dismissal of the order to show cause and a judgment of acquittal upon the ground that the proofs failed, as a matter of law, to show a situation justifying a finding that respondents were guilty of criminal contempt. In addition, respondents Alberque and State Farm Mutual Automobile Insurance Company respectively urge that there was no proof that the action complained of had been authorized or directed by them.

As I remarked during the course of the argument, Vallone's conduct in misrepresenting to Martini's secretary that he was an investigator employed and sent by Martini, as the result of which he induced her to permit him to examine and take Martini's diary and personal message book and to give a deposition with respect thereto, was reprehensible even if his purpose was to attempt to disprove testimony given by a witness called by Martini as to the date when

he had gone to Martini's office. Indeed, it may give rise to an action for damages by Martini for willful invasion of his rights, and if an attorney authorized or directed such conduct he would be subject to disciplinary proceedings for a violation of professional ethics.

But those questions are not before the court. The sole issue is, has a criminal contempt been shown? Since, as Judge Jayne said in Swanson v. Swanson , 10 N.J. Super. 513, 520-521 (App. Div. 1950), affirmed 8 N.J. 169 (1951):

"A prosecution for criminal contempt is veritably a criminal trial in which the accused possesses most of the substantial rights of a person accused of crime, among which are the presumption of innocence, the burden of proving the alleged guilt beyond a reasonable doubt and the rules of evidence applicable in the trial of an indictment * * *.

Its title or label may now give it the ostensible appearance of a motion or integral component of the action in which the alleged public offense occurred, but the proceeding inaugurated to determine the guilt or innocence of the accused continues in truth and reality to be a new, independent, and collateral matter * * *."

the test to be applied on this motion is that applicable to such motions in criminal trials: Is there legal evidence before the court from which an inference can be legitimately drawn that respondents were guilty of the criminal contempt charged? R.R. 3:7-6; State v. Kollarik , 22 N.J. 558 (1956).

Examination of the many cases dealing with criminal contempt which are found in the books leads me to the conclusion that the conduct disclosed by the evidence would not justify ...

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