J-A07025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF SARA GRIMM,                      IN THE SUPERIOR COURT OF
DECEASED                                                PENNSYLVANIA




APPEAL OF: WILLIAM L. GRIMM
                                                      No. 1186 WDA 2014


                      Appeal from the Order June 23, 2014
                 In the Court of Common Pleas of Mercer County
                        Orphans' Court at No(s): 2011-153


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                             FILED APRIL 23, 2015

        William L. Grimm appeals from the order of contempt entered in the

Court of Common Pleas of Mercer County. Upon careful review, we vacate

the contempt order.

        The relevant factual and procedural history of this matter is as follows.

Sara Jane Grimm (“Decedent”) died on February 28, 2011, leaving a will

dated January 25, 2005, in which she appointed her daughter, Rebecca J.

Bernhard, appellee herein, as Executrix. On March 31, 2011, Executrix filed

a petition for citation, directed to Appellant,1 to show cause why he should

not be ordered to file an account of his actions as agent under a power of

attorney executed by Decedent on or about November 30, 2010. Among the

allegations in the petition were that “several checks for large amounts of
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1
    Appellant is Decedent’s stepson.
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money that were made payable to [Appellant] by [Appellant] in his capacity”

as Agent had not been accounted for. Petition for Accounting, 3/31/11, at ¶

8.   By order dated June 27, 2011, the court directed Appellant to provide

Executrix with an account of his term as Agent, which Appellant did.

Executrix filed “exceptions” to the account, alleging, inter alia, that Appellant

used the power of attorney to transfer to himself the sum of $77,000 in

contravention of the authority granted under the document. The Executrix

also requested that the court find Appellant in contempt for failing to comply

with the June 27, 2011 order and sought reimbursement for her costs and

attorney’s fees.

       Appellant responded to the exceptions, denying that he had improperly

converted funds from the Decedent and asserting that the Decedent had

made lifetime gifts to him and other individuals.          He also attached a

supplemental account.        The Executrix filed a discovery motion, which the

court denied as premature.

       Thereafter, Appellant, represented by new counsel, filed an answer to

the petition for account filed by the Executrix in March 2011.2          In that

answer, Appellant asserted that the Decedent had an account at First

National Bank of Pennsylvania containing $77,746.19, which the Decedent

instructed him to close and take the balance as a gift to Appellant and his

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2
 The Appellant had not previously filed an answer to the petition, although
he had submitted an account.



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wife.3     Appellant subsequently withdrew $77,000 from the account and

deposited it in an investment account in his own name.

         In July 2012, the Executrix filed a motion to compel discovery and to

establish an escrow account, into which Executrix requested that Appellant

be required to deposit the funds he allegedly misappropriated using the

Decedent’s power of attorney. The court held a hearing on that motion on

November 2, 2012, after which it entered an order directing that Appellant:

(1) provide Executrix with all statements from the investment account

containing the proceeds of Decedent’s First National Bank of Pennsylvania

account; (2) not make any withdrawals from the investment account

pending further order of court; and (3) provide Executrix with statements

from all of his bank accounts.

         On December 18, 2012, Executrix filed a motion for contempt,

claiming that Appellant had failed to comply with the November 2, 2012

order by not providing certain discovery. Prior to the date of a scheduled

hearing, Appellant turned over some discovery to Executrix, who requested

the hearing be continued as a result.            After reviewing the documents

provided by Appellant, Executrix once more filed for contempt, claiming the

discovery was incomplete and not in compliance with the court’s order.


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3
  Appellant claims that the source of the funds contained in the account was
his father and mother. His mother passed away in 1992 and his father
thereafter married the Decedent.



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Executrix also requested that Appellant be required to pay her fees and costs

and turn over to the estate the $77,000 allegedly given to Appellant by the

Decedent.      After meeting with counsel in chambers, the court entered an

order directing the parties to meet to review previously produced discovery

and create lists of any missing items.

      On March 7, 2014, Executrix once again filed a petition for contempt,

alleging that Appellant still had not turned over certain missing items of

discovery and requesting that Appellant be required to reimburse the estate

for costs and expenses incurred in its attempts to obtain discovery.

Appellant responded, averring that he had, in fact, provided all relevant

information.    He also asserted that, because he had actually provided an

account and a supplemental account, he should not be required to pay costs

and fees absent a finding by the court that he be surcharged.

      The court held a hearing on April 24, 2014, after which it entered an

order directing the Appellant to provide within ten days an affidavit

regarding the disposition of the contested $77,000. The court also issued an

order scheduling a status hearing, at which time it would determine if any

outstanding discovery issues remained and would impose sanctions if

necessary.




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        On May 14, 2014, counsel for Appellant had an ex parte meeting with

the Honorable Thomas R. Dobson, P.J.,4 at which time counsel revealed,

pursuant to Rule of Professional Responsibility 3.3., that Appellant had

misrepresented to the court that he had not spent any of the disputed

$77,000.     Counsel told Judge Dobson that Appellant had, in fact, spent

$27,000 of that money. This meeting was transcribed and, pursuant to an

order entered by Judge Dobson, sealed, to be provided only to the

Honorable Daniel P. Wallace, the presiding judge.          Judge Dobson also

ordered that counsel immediately file a motion to withdraw his appearance

on behalf of Appellant.       Finally, Judge Dobson ordered that the remaining

funds be paid into escrow with the Register of Wills.            Counsel was

subsequently permitted to withdraw his representation. Judge Wallace also

reviewed the transcript of the May 14, 2014 ex parte meeting and directed

the Register of Wills to reseal the transcript.

        On May 19, 2014, Executrix filed yet another petition for contempt,

claiming that Appellant had failed to comply with the court’s April 25, 2014

order directing him to file an affidavit regarding the disposition of the

contested $77,000.        Instead, Executrix asserted, Appellant forwarded an

unsworn verification outlining the whereabouts of amounts adding up to only

$50,000. The court scheduled a hearing on the petition for contempt, to be


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4
    Judge Dobson was not the presiding judge in this matter.



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held on June 20, 2014. Appellant claims that there is no proof in the record

that notice of either the petition or the hearing was given to him.

        On June 18, 2014, the Executrix filed yet another petition for

contempt, asserting that only $20,000 had been deposited with the Register

of Wills as directed by the court.     However, Appellant again claims that

“[t]here is no evidence in the record this second [p]etition for [c]ontempt

was served on the Appellant or the Rule was served on either the Appellant

or his former counsel.” Brief of Appellant, at 19.

        Appellant appeared pro se at the contempt hearing held on June 20,

2014.    At the hearing, the court did not take evidence or testimony from

either party. Rather, the court took the bench and immediately stated its

conclusions that:    (1) a suitable affidavit had not been provided by the

Appellant; and (2) Appellant misled the court with regard to the $77,000.

While the court did not specify its basis for concluding that Appellant had

misled the court, it nevertheless entered an order directing Appellant to pay

Executrix’ fees and costs, and stated that if the fees and costs were not paid

in full by June 27, 2014, Appellant “shall report to the Mercer County Jail.”

N.T. Contempt Hearing, 6/20/14, at 4.

        Having retained new counsel, Appellant filed exceptions to the June

20, 2014 contempt order on July 21, 2014, in which he alleged that he “was

unable to determine what [c]ourt [o]rder the contempt was based on, nor . .

. what conduct, [c]ourt [o]rder or factual basis existed for the contempt

finding.” Brief of Appellant, at 20. Appellant also claimed that the court’s

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order was unclear as to whether his contempt was civil or criminal and that

he was not provided an opportunity to retain new counsel, be heard, and

present a defense. Appellant also filed a notice of appeal on July 21, 2014,

followed by a Pa.R.A.P. 1925(b) statement.

      On August 29, 2014, Judge Dobson entered an order allowing “for the

unsealing of the [May 14, 2014 ex parte meeting] transcript for the purpose

of allowing Judge Wallace to review [it] with [Appellant’s] counsel” at a post-

appeal conference. On September 2, 2014, Judge Wallace issued an order

clarifying his contempt order as follows:

      The contempt [o]rder dated June 20, 2014, is hereby amended
      to specify that Appellant was held in contempt for failing to abide
      by Judge John Reed’s [o]rder of November 2, 2012, and the
      [o]rder of May 14, 2014, and May 19, 2014, by Judge Thomas
      Dobson.

Trial Court Order, 9/4/14.

      On September 8, 2014, the trial court issued an order directing that

the May 14, 2014 transcript be resealed. Finally on September 19, 2014,

Judge Wallace issued a Rule 1925(a) opinion, in which he defended his

contempt order as follows:

      On September 2, 2014, this [c]ourt met with Appellant’s counsel
      for a post-appeal conference. At that time, this [c]ourt shared
      with Appellant’s counsel a sealed transcript containing a
      summary of why Appellant’s previous counsel was withdrawing
      his appearance. President Judge Thomas R. Dobson heard prior
      counsel’s reasons for withdrawing because this [c]ourt was
      unavailable. More importantly, because prior counsel’s reasons
      were subject to attorney-client privilege, Judge Dobson ordered
      the transcript of the proceeding be sealed.



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       While it is true that this [c]ourt failed to state the reason for
       finding the Appellant in contempt at the contempt hearing on
       June 20, 2014, this [c]ourt informed Appellant’s counsel at the
       post-appeal conference that the information contained in the
       sealed transcript was the reason for finding Appellant in
       contempt. Furthermore, this Court then entered an amended
       [o]rder dated September 2, 2014 setting forth the reasons for
       contempt in a manner that did not divulge the privileged
       information contained in the sealed transcript. In light of the
       amended [o]rder, this [c]ourt believes Appellant’s basis for his
       appeal has been remedied, and that the appeal should be
       dismissed.

Trial Court Opinion, 9/19/14, at 1-2.

       Appellant raises the following issue for our review:5

       Whether the [t]rial [c]ourt erred in its contempt finding which
       was made without the [c]ourt providing due process to the
       Appellant, including [denying] the Appellant . . . sufficient notice
       of the contempt allegations, conducting a hearing which [failed
       to] provide[] the Appellant the opportunity to defend against the
       allegations, and ordering purge conditions before adjudicating
       the Appellant in contempt, as well as [failing to] require[e] the
       complaining party to prove her allegations of contempt.

Brief of Appellant, at 5.

       When considering an appeal from an [o]rder holding a party in
       contempt for failure to comply with a court [o]rder, our scope of
       review is narrow: we will reverse only upon a showing the court
       abused its discretion.    The court abuses its discretion if it
       misapplies the law or exercises its discretion in a manner lacking
       reason. To be in contempt, a party must have violated a court
       [o]rder, and the complaining party must satisfy that burden by a
       preponderance of the evidence.

       Attorney fees may be assessed as a sanction for the contemnor’s
       refusal to comply with a court [o]rder, causing the innocent
       party to incur fees in an effort to obtain what was rightfully his.
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5
  Because we grant Appellant relief on this claim, we need not address the
second claim raised by Appellant in his brief.



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Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa. Super. 2009) (internal

citations omitted).

      To sustain a finding of civil contempt, the complainant must
      prove certain distinct elements: (1) that the contemnor had
      notice of the specific order or decree which he is alleged to have
      disobeyed; (2) that the act constituting the contemnor’s violation
      was volitional; and (3) that the contemnor acted with wrongful
      intent.

Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013). The complaining

party must prove these elements by a preponderance of the evidence.

Barrett v. Barrett, 368 A.2d 616, 621 (Pa. 1977).        A mere showing of

noncompliance with a court order, or even misconduct, is never sufficient

alone to prove civil contempt.    Habjan, 73 A.3d at 637. Present inability

to comply is an affirmative defense, which must be proved by the alleged

contemnor. Barrett, 368 A.2d at 621.

      Finally,

      When holding a person in civil contempt, the court must
      undertake: (1) a rule to show cause; (2) an answer and
      hearing; (3) a rule absolute; (4) a hearing on the contempt
      citation; and (5) an adjudication of contempt. Fulfillment of all
      five factors is not mandated, however.         The essential due
      process requisites for a finding of civil contempt are notice and
      an opportunity to be heard.

In re Cullen, 849 A.2d 1207, 1211 (Pa. Super. 2004) (citations and

punctuation omitted).

      Here, the trial court created no record to support its finding of

contempt.     The court held Appellant in contempt without (1) requiring

Executrix to prove Appellant’s noncompliance by a preponderance of the


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evidence or (2) providing Appellant an opportunity to be heard or defend

himself in any manner. Moreover, the record is devoid of any indication that

Appellant was provided with proper notice of either the Executrix’ petition for

contempt or the trial court order scheduling a hearing thereon.6 In Wood v.

Geisenhemer-Shaulis, 827 A.2d 1204, 1209 (Pa. Super. 2003), this Court

vacated a contempt order where the trial court had heard oral argument but

did not convene an evidentiary hearing, in contravention of the alleged

contemnor’s due process rights. The Court noted:

       With respect to the [due process] inquiry, we find that the trial
       court erred in finding [Appellant] in civil contempt without an
       evidentiary hearing. The trial court’s finding was entered after
       oral arguments, which did not allow [Appellant] to testify or
       introduce evidence that would purportedly excuse his inability to
       comply with the court’s . . . order. By extension, we cannot
       ascertain whether [Complainant] met his burden of proof,
       although under the facts of this case, [Appellant] clearly failed to
       timely comply with the trial court’s order.

Id. at 1209 (internal citations omitted). In the matter sub judice, the trial

court failed to even give Appellant the benefit of oral argument, and instead

made an immediate finding of contempt upon taking the bench.

       Moreover, the trial court’s contempt order fails to indicate which order

of court the Appellant had violated. Indeed, the court itself conceded in its

Rule 1925(a) opinion that “it is true that this [c]ourt failed to state the
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6
  In that regard, we note that the trial court scheduling order bears a
notation that it was sent to two attorneys, neither of whom represented
Appellant. Indeed, the contempt order itself appears not to have been
served upon Appellant as required by Pa.R.C.P. 236(a).



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reason for finding Appellant in contempt at the contempt hearing on June

20, 2014[.]” It was not until approximately two and one half months later,

and after Appellant filed his notice of appeal, that the court on September 2,

2014, issued an amended order specifying that Appellant was held in

contempt for “failing to abide by Judge John Reed’s [o]rder of November 2,

2012, and the [o]rder of May 14, 2014, and May 19, 2014, by Judge Thomas

R. Dobson.” Trial Court Order, 9/2/14, at 1-2.

       Even on appeal, the parties remained unclear as to the basis for the

contempt finding. Executrix stated the following in her brief:

       The Appellee is unable to cogently address the issue of upholding
       the [c]ourt’s determination of Appellant’s contempt because the
       exact basis for that ruling has been withheld from Appellee.

Brief of Appellee, at 4.

       Based on the foregoing, it is readily apparent that the trial court

abused its discretion in holding Appellant in contempt without an evidentiary

hearing. While it is clear from the record that Appellant has failed to comply

with certain of the court’s directives, due process requires that Executrix

prove Appellant’s violations by a preponderance of evidence after a hearing

held following due notice.         As such was not done in this case, we are

constrained to vacate the order of contempt.7
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7
  It appears that the proper course for the court to follow on remand is to
proceed with a hearing on the objections filed by the Executrix to Appellant’s
account to determine whether the $77,000 fund was, in fact, a gift from the
decedent to the Appellant. In the event the court, after a full hearing,
(Footnote Continued Next Page)


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      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2015




                       _______________________
(Footnote Continued)

determines that the money was not a gift, a surcharge may be imposed
against the Appellant.



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