J-S67021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

SCOTT A. VENANZIO

                            Appellee                   No. 485 WDA 2014


                  Appeal from the Order Entered March 26, 2014
             In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-MD-0000044-2014


BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                          FILED FEBRUARY 17, 2015

        The Commonwealth appeals from the March 26, 2014 order dismissing

Appellee, Scott A. Venanzio’s, indirect criminal contempt (ICC) charge

without prejudice. After careful review, we quash this appeal.

        The certified record reveals the following relevant procedural history of

this case.    Appellee was the subject of a Protection from Abuse Act (PFA)

order, proscribing most types of contact with his wife, the PFA complainant.1

On December 27, 2013, police responded to a 911 call, reporting an alleged

assault and a violation of the PFA order. Affidavit of Probable Cause, 1/3/14.

The responding officers interviewed but did not arrest Appellee that evening.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    23 Pa.C.S.A. §§ 6101-6122.
J-S67021-14



Instead, on January 3, 2014, the Commonwealth filed a complaint charging

Appellee with ICC for violating the PFA order.2 Criminal Complaint, 1/3/14.

A warrant was issued for Appellee’s arrest, and he turned himself in on

January 15, 2014.        Thereafter, the trial court scheduled a hearing on the

charge for January 22, 2014. Trial Court Order, 1/17/14. At the hearing,

the trial court granted defense counsel’s request for a continuance in order

to research whether the Commonwealth complied with 23 Pa.C.S.A.

§ 6113(f).3      Subsequently, on March 5, 2014, the trial court issued an

opinion and order dismissing the charge against Appellee, without prejudice

for the Commonwealth to refile.           Trial Court Opinion, 3/5/14, at 5; Trial

Court Order, 3/26/14.4 The Commonwealth did not refile the charge. This

timely appeal followed.5
____________________________________________


2
    23 Pa.C.S.A. § 6113.
3
  Section 6113(f) provides, in relevant part, “[a] hearing shall be scheduled
within ten days of the filing of the charge or complaint of indirect criminal
contempt.” 23 Pa.C.S.A. § 6113(f).
4
  The trial court issued an order contemporaneously with its opinion which
dismissed the “[i]ndirect [c]riminal [c]omplaint charge with prejudice.” Trial
Court Order, 3/5/14. The description accompanying the filing of the order
on the docket, however, indicates the dismissal is “without prejudice.” On
March 26, 2014, the trial court amended the order, citing a typographical
error, to read, “without prejudice.” Amended Trial Court Order, 3/26/14.
5
    The Commonwealth filed its notice of appeal on March 27, 2014 from the
trial court’s order of March 5, 2014. Thereafter, on April 4, 2014, the
Commonwealth filed a petition to amend its notice appeal to reflect the
March 26, 2014 amended order. This Court granted the Commonwealth’s
petition. Per Curiam Order, 5/12/14.
(Footnote Continued Next Page)


                                           -2-
J-S67021-14


        On appeal, the Commonwealth raises the following issue for our

review.

              Does the Section 6113(f) “10-Day” time period to
              schedule an indirect criminal contempt of court
              hearing begin running before the court has acquired
              personal jurisdiction of the defendant?

Commonwealth’s Brief at 4.6

        Before addressing the Commonwealth’s issue, we must first determine

if the appeal is properly before us, as “[w]e do not have jurisdiction over

non-appealable orders.” Commonwealth v. Frey, 41 A.3d 605, 609 (Pa.

Super. 2012) (citation omitted), appeal denied, 65 A.3d 413 (Pa. 2013).

“The Pennsylvania Rules of Appellate Procedure … delineate appealable

orders as final orders (Pa.R.A.P. 341); interlocutory orders as of right

(Pa.R.A.P. 311); interlocutory orders by permission (Pa.R.A.P. 312); and

collateral orders (Pa.R.A.P. 313).”          Commonwealth v. Mitchell, 72 A.3d

715, 717 (Pa. Super. 2013) (citation omitted). In this case, the trial court

dismissed the charge “without prejudice.” Trial Court Order, 3/26/14. The

                       _______________________
(Footnote Continued)


The docket does not reflect the trial court ordered the Commonwealth to file
a concise statement of matters complained of on appeal, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). However, the trial court
filed a “decree pursuant to Rule 1925(a)” stating the reasons for its decision
appear in the opinion of the court, dated March 4, 2014, and the order,
dated March 24, 2014 (filed March 5, 2014 and March 26, 2014,
respectively). Trial Court Decree, 7/2/14.
6
    Appellee has not filed an appellate brief in this matter.



                                            -3-
J-S67021-14


Commonwealth asserts the order appealed from is a final order pursuant to

42 Pa.C.S.A. 742 (conferring jurisdiction on the Superior Court over final

orders from the courts of common pleas). Commonwealth’s Brief at 1.

       When reviewing the appealability of a trial court dismissing charges

without prejudice, we consider the nature of the defect resulting in

dismissal. “[I]f the defect which precipitated the dismissal may be cured by

the Commonwealth, a subsequent appeal to this Court is considered

interlocutory.”     Commonwealth v. Bowman, 840 A.2d 311, 314 (Pa.

Super. 2003) (citation omitted). “[O]n the other hand, if the defect which

requires the dismissal of charges is incurable, then the order dismissing the

charges is final, and appellate review is proper.”7        Commonwealth v.

Waller, 682 A.2d 1292, 1294 (Pa. Super. 1996) (citation omitted).            Our
____________________________________________


7
  Our Supreme Court previously held the dismissal of a charge for failure to
bring that charge within five days of an appellant’s release from custody,
pursuant to former Pennsylvania Rule of Criminal Procedure 130(d), was an
incurable defect for which the proper remedy was appeal. Commonwealth
v. La Belle, 612 A.2d 418, 420 (Pa. 1992). We conclude La Belle is
distinguishable. Former Rule 130(d) provided the equivalent of a statute of
limitations for filing a charge in cases of a warrantless arrest of the
defendant. Id. Section 6113(f), by contrast, deals only with the timing of
the scheduling of a hearing for a defendant already charged. 23 Pa.C.S.A.
§ 6113. In the former circumstance, no act by the Commonwealth could
retrospectively remedy the failure of the Commonwealth to charge the
defendant within five days of his release from custody. In the latter
circumstance, at issue in the instant case, Appellee’s hearing was not
scheduled within ten days of the filing of the criminal complaint. Because
this defect is not the equivalent of the Commonwealth failing to charge
Appellee within the statute of limitations, we conclude it is curable by refiling
the charges and complying with the scheduling timeline of Section 6113(f).




                                           -4-
J-S67021-14


Supreme Court has held that the Commonwealth’s avenue for relief when a

complaint has been dismissed is to refile the criminal complaint before the

statute of limitations has expired.8 Id. (citation omitted).

       Instantly, the Commonwealth asserts the dismissal of the charge is an

appealable, final order.         Commonwealth Brief at 1.      No argument is

advanced on behalf of the Commonwealth that there is any impediment to

the Commonwealth refiling charges against Appellee and complying with the

ten-day rule for scheduling a contempt hearing.             See 23 Pa.C.S.A.

§ 6113(f). Consequently, we conclude the Commonwealth is able to cure

the defect precipitating the instant dismissal by refiling the criminal charge

against Appellee and complying with the time requirements of Section

6113(f). See Bowman, supra. Accordingly, we quash the appeal.

       Appeal quashed.

       Judge Donohue joins the majority.

       Justice Fitzgerald concurs in the result.




____________________________________________


8
 We note the dismissal of the charge occurred prior to any presentment of
evidence against Appellee, and thus, jeopardy had not attached.
Commonwealth v. Ball, 97 A.3d 397, 400 (Pa. Super. 2014).



                                           -5-
J-S67021-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2015




                          -6-
