J-S26013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AARON MCCANS                                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

                       v.

LA’TOIA BURGESS

APPEAL OF: STACY L. SHIELDS                           No. 921 EDA 2015


                  Appeal from the Order November 24, 2014
             In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 11-00087


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED MAY 04, 2016

       Appellant, Stacy L. Shields, Esq., appeals in propria persona from an

order entered in the Civil Division of the Montgomery County Court of

Common Pleas on November 24, 2014 that held her in criminal contempt

and ordered her to pay a fine and attorneys’ fees.1               After careful

consideration, we vacate and remand for further proceedings.

       We quote the trial court’s recitation of the facts and procedural history

of this case.

       The instant matter involves contentious custody and support
       proceeding[s] which have been before th[e trial c]ourt since
       January 2011. Appellant entered her appearance for La’Toia
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1
  “An order imposing sanctions, including one that imposes sanctions on an
attorney, is considered a final order and is therefore appealable.” Stewart
v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013). As such, we have
jurisdiction to address the merits of this case.



*Retired Senior Judge assigned to the Superior Court.
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       Burgess (“Mother”) in this matter on March 15, 2011.[2] On
       October 1, 2014, Mother filed an Emergency Petition to Modify
       Custody (“Mother’s Petition”). On October 20, 2015, the [trial
       c]ourt held a pre-trial short list conference on Mother’s Petition.
       Aaron McCans (“Father”), Father’s counsel Brian Smith[, Esq.,]
       and Mother all appeared for the conference. Appellant, despite
       still being listed as Mother’s attorney of record, failed to appear.
       The issue presented in Mother’s Petition was narrow and had the
       potential to be resolved if Appellant had appeared. Mr. Smith
       informed the [trial c]ourt that he had tried calling Appellant prior
       to the conference in an attempt to resolve Mother’s Petition, but
       received no response. He further informed the [trial c]ourt that
       he could not attempt to contact Mother directly because she was
       still technically represented by Appellant.

       The [trial c]ourt subsequently called Appellant’s office from the
       bench. The receptionist who answered the phone informed the
       [trial c]ourt that Appellant was “with a client.” The receptionist
       subsequently checked on Appellant’s status and following [what
       the trial court deemed to be] the passage of an unreasonable
       amount of time, the receptionist informed the [trial c]ourt that
       Appellant would “call back when she was finished.” The [trial
       c]ourt again informed the receptionist that it was calling from
       the bench.      When Appellant finally came to the phone, [it
       appeared to the trial court that] she lacked any concern for her
       absence in court.       [In addition, the trial court described
       Appellant’s tone] as disrespectful and dismissive.         At the
       conclusion of the call, the [trial c]ourt provided Appellant with
       two options: (1) withdraw her entry of appearance in the instant
       matter or, (2) appear for a rescheduled pre-trial short list
       conference. Appellant informed the [trial c]ourt that she would
       withdraw her appearance.

       [F]ollowing the call with Appellant, the [trial c]ourt issued an
       [o]rder (the “October 20, 2014 Order”) requiring that Appellant
       “must withdraw her appearance no later than November 3,
____________________________________________


2
  As to the nature, extent, and consistency of Appellant’s representation of
Mother, Appellant admits in her brief that, “[because Mother] did not have
the financial resources to afford representation by an attorney and could not
always pay for such representation, [Appellant] continued to represent
[Mother] whenever possible.” Appellant’s Brief at 5.



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      2014, or, in the alternative, be present for the rescheduled Short
      List Conference on November 18, 2014 at 12:00 [p.m.]….”
      October 20, 2014 Order. The [trial c]ourt filed this Order
      electronically on the docket and sent the Order directly to
      Appellant via first class mail. No notices of return appeared on
      the docket. Appellant failed to withdraw her appearance by the
      November 3, 2014 deadline. Further, Appellant failed to appear
      for the pre-trial short list conference scheduled for November 18,
      2014, in direct contravention of the October 20, 2014 Order.
      Again, due to Appellant’s absence, the [trial c]ourt was unable to
      resolve Mother’s Petition and had no choice but to schedule a
      trial in April 2015, nearly six (6) months into the future. The
      [trial c]ourt never received any correspondence from Appellant
      indicating that she had any conflicts with the November 18, 2014
      conference or that she would be unable to attend for any reason.
      Appellant did not attempt to contact the [trial c]ourt following
      the November 18, 2014 conference to explain her absence.

      On November 24, 2014, the [trial c]ourt issued an [o]rder
      finding Appellant in contempt of [c]ourt due to her failure to
      withdraw her appearance or appear for the November 18, 2014
      conference. The [trial c]ourt ordered Appellant to pay a fine of
      $250.00 to the Montgomery County Bar Association and to
      reimburse opposing counsel’s attorney’s fees of $620.00 for his
      preparation and appearance at the two pre-trial short list
      conferences held on October 20, 2014 and November 18, 2014.[]
      The [trial c]ourt also [o]rdered Appellant to be withdrawn as
      counsel immediately and directed that she may not enter her
      appearance in the case again without approval of the [trial
      c]ourt.

Trial Court Opinion, 4/7/15, at 1-3 (footnote omitted).

      Appellant filed a motion to reconsider, which the trial court denied.

Thereafter, Appellant filed a timely appeal to this Court.      Pursuant to an

order of court issued pursuant to Pa.R.A.P. 1925(b) on January 5, 2015,

Appellant filed a timely concise statement listing the issues she raises in her

appellate brief. The trial court issued its opinion on April 7, 2015.

      Appellant raises the following questions for our consideration:

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      [Whether t]he trial court committed an abuse of discretion when
      it summarily found [Appellant] in [c]ontempt of [c]ourt without
      finding that her failure to comply with one of two options in an
      October 20, 2014 [o]rder and be present at a November 18,
      2014 hearing was intentional[?]

      [Whether t]he trial court committed an abuse of discretion when
      it summarily found [Appellant] in contempt of court and
      sanctioned her with fines where summary contempt proceedings
      were not warranted and without first having given her notice and
      an opportunity to be heard[?]

      [Whether t]he trial court committed an abuse of discretion when
      it summarily found [Appellant] in [c]ontempt of [c]ourt without
      first finding that there had been a significant disruption of the
      [trial c]ourt’s November 18, 2014 proceedings[?]

      [Whether t]he trial court committed an abuse of discretion when
      it summarily found [Appellant] in [c]ontempt of [c]ourt for
      failure to comply with an October 20, 2014 [o]rder directing her
      to take one of two actions, which [o]rder was vague and
      uncertain and which did not forewarn that non-compliance
      therewith would be regarded as a contempt of court[?]

Appellant’s Brief at 4.

      Appellant’s claims challenge various aspects of the trial court’s

discretionary authority to issue contempt orders.         As these claims are

interrelated, we shall address them in a single discussion.

      “[T]rial courts in Pennsylvania have an inherent power to impose

summary punishment for contempt of court. This power is set forth in the

Judicial Code[.]” Commonwealth v. Pruitt, 764 A.2d 569, 573 (Pa. Super.

2000). Specifically, the Judicial Code provides that:

      § 4132. Attachment          and   summary         punishment   for
      contempts.




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      The power of the several courts of this Commonwealth to issue
      attachments and to impose summary punishments for contempts
      of court shall be restricted to the following case:

         (1)   The official misconduct of the officers of such courts
               respectively.
         (2)   Disobedience or neglect by officers, parties, jurors or
               witnesses of or to the lawful process of the court.
         (3)   The misbehavior of any person in the presence of the
               court, thereby obstructing the administration of justice.

42 Pa.C.S.A. § 4132.

      At the outset, we note our agreement with the trial court that the

court's imposition of a fine, together with its directive that Appellant

reimburse opposing counsel’s fees, establish that the trial court adjudicated

Appellant to be in criminal contempt. The dominant purpose of the court’s

order was to punish Appellant for her failure to either withdraw her

appearance in this case or appear in court on behalf of Mother at the

November 18, 2014 short list conference.       Hence, the court adjudicated

Appellant to be in criminal contempt. See Pruitt, 764 A.2d at 574 (citations

omitted).

      Next, we ascertain the precise provision of § 4132 that supports the

trial court’s order.   In prior cases, this Court concluded that § 4132(2)

applies to disobedience or neglect by attorneys to the “lawful process of the

court.” In the Interest of C.W., 960 A.2d 458, 467 n.9 (Pa. Super. 2008).

Specifically, we have held that counsel's failure to appear for a scheduled

court appearance, counsel's failure to communicate with the opposing party

regarding transcripts, counsel's failure to file timely points for charge, and

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counsel's failure to file an accounting fall within the scope of § 4132(2). See

Commonwealth v. Kolansky, 800 A.2d 937 (Pa. Super. 2002); Pruitt,

supra; Estate of Baehr, 596 A.2d 803 (Pa. Super. 1991); Weingrad v.

Lippy, 445 A.2d 1306 (Pa. Super. 1982).             Moreover, this Court has

generally held that counsel’s failure to provide information to a judge

implicates the lawful process of the court.         See Appeal of J. Shane

Creamer, 529 A.2d 27 (Pa. Super. 1987). For these reasons, we conclude

that a finding of contempt based on Appellant’s failure to either withdraw her

appearance or appear in court at the November 18, 2014 short list

conference falls within the purview of § 4132(2).

      Regarding [§] 4132(2), a finding of contempt pursuant to this
      subsection must be supported by the following four elements:

      (1) The [court's] order or decree must be definite, clear, specific
      and leave no doubt or uncertainty in the mind of the person to
      whom it was addressed of the conduct prohibited;

      (2) The contemnor must have had notice of the specific order or
      decree;

      (3) The act constituting the violation must have been volitional;
      and

      (4) The contemnor must have acted with wrongful intent.

      Further, unless the evidence establishes an intentional
      disobedience or an intentional neglect of the lawful process of
      the court, no contempt has been proven. Moreover, a conviction
      for criminal contempt requires proof beyond a reasonable doubt.

In the Interest of C.W., 960 A.2d at 467 (quotation, quotation marks, and

citations omitted).


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      We have applied the following standard in reviewing contempt orders

issued by the trial courts:

      When reviewing a contempt conviction, much reliance is given to
      the discretion of the trial judge. Accordingly, we are confined to
      a determination of whether the facts support the trial court's
      decision. Each court is the exclusive judge of contempts against
      its process, and on appeal its actions will be reversed only when
      a plain abuse of discretion occurs. As this Court stated:

        The ability to raise a criminal contempt citation empowers a
        trial judge with the ability to maintain command over his or
        her courtroom. Effectively, the criminal contempt sanction
        gives credence to a judge's status as commander in chief
        over his or her courtroom. If we continually carve away at
        this power, the sanctity and balance of the courtroom may
        be in jeopardy. In connection with this sentiment, however,
        this Court has also noted that a trial court should not use
        the drastic sanction of finding a person in criminal contempt
        when a lesser measure will suffice.

Pruitt, 764 A.2d at 574 (quotations, quotation marks, and citations

omitted).

      Notwithstanding Appellant’s arguments that the October 20, 2014

order was vague and without warning that non-compliance would be

regarded as a contempt of court, we have little trouble in concluding that

there was sufficient evidence to establish the first two elements listed in the

foregoing test.   As the trial court found, the transcript of the October 20,

2014 short list conference and the court’s order issued on that date make

very clear that Appellant needed to withdraw her appearance or appear for

court on November 18, 2014 at the rescheduled short list conference. See

Trial Court Opinion, 4/7/15, at 6-8.    Moreover, Appellant’s claim that she


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should have been forewarned about the consequences of non-compliance is

self-serving and unworthy of merit.      Hence, the record supports the trial

court’s determinations with respect to the first two elements of direct

criminal contempt.

      We are more troubled, however, with the trial court’s findings that

Appellant acted with volition and wrongful intent, particularly in light of the

allegations raised by Appellant on appeal and in view of the fact that the trial

court did not conduct a hearing to guarantee that its findings rested on a

well-developed record. Here, the trial court reasoned that Appellant’s failure

to appear constituted a form of direct criminal contempt.       See Trial Court

Opinion, 4/17/15, at 5-6. The court reasoned further that direct contempt

was punishable through summary means since inquiry into the identity of

the contemnor and nature of the offense is unnecessary because the

misbehavior occurs before the court.        Id.   We conclude that the court’s

approach, under the particular circumstances of this case, exceeded the

bounds of its discretionary authority.

      The trial court is correct that we have held that an attorney's failure to

appear was misconduct that occurred in the presence of the court.            See

Himes v. Himes, 833 A.2d 1124, 1125–1127 (Pa. Super. 2003) (citations

and   internal   quotation   marks   omitted);    see   also   Fenstamaker    v.

Fenstamaker, 487 A.2d 11, 14 (Pa. Super. 1985) (“A direct criminal

contempt consists of misconduct of a person in the presence of the court, or


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disobedience to or neglect of the lawful process of the court, or misbehavior

so near thereto as to interfere with the immediate business of the court.”).

In Himes, we affirmed the finding of criminal contempt entered when a

hearing had to be postponed because an attorney failed to appear. Himes,

833 A.2d at 1128. We have also held, however, that when an attorney had

conflicting in-court commitments and provided timely and sufficient notice to

the trial court, there was no willful intent sufficient to support a contempt

finding.   Commonwealth v. Debose, 833 A.2d 147, 150 (Pa. Super.

2003); see also Ricci v. Geary, 670 A.2d 190 (Pa. Super. 1996); In re

Bernhart, 461 A.2d 1232 (Pa. 1983).         We also reversed a finding of

contempt entered when an attorney failed to appear due to an in-court

conflict, even though the attorney failed to provide notice of the conflict.

See Commonwealth v. Giordano, 386 A.2d 83 (Pa. Super. 1978). These

cases suggest strongly that an attorney’s failure to appear at a scheduled

court proceeding is not per se grounds for a finding of contempt where other

circumstances justify or explain the attorney’s absence.

      In this case, the trial court’s order of October 20, 2014 gave Appellant

the option of withdrawing her appearance or attending the short list

conference scheduled for November 18, 2014.         In response to the trial

court’s order of October 20, 2014, Appellant alleges in her brief that she

took the following actions to withdraw her appearance:

      [Following issuance of the trial court’s October 20, 2014 order],
      [Appellant] obtained a Prarcipe to Withdraw form from the

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      Montgomery County Prothonotary’s office, filled it in, and sent it
      back to the court.       However, because the form required
      [Mother’s] signature, the [c]ourt (per [staff from the trial judge’s
      chambers]) rejected the praecipe and returned it to [Appellant]
      for [Mother’s] signature.     With time then of the essence,
      however, [Appellant] forwarded the Praecipe to Withdraw to
      [Mother] for her signature and asked her to return it directly to
      the Prothonotary’s Office by November 3, 2014 instead of
      returning it to [Appellant] who then would have to re-mail it to
      the Prothonotary’s Office.

      Believing that [Mother], then had returned the Praecipe to
      Withdraw to the Prothonotary’s Office, [Appellant] believed that
      her appearance had been withdrawn in accordance with the
      [c]ourt’s October 20, 2014 [o]rder, and did not appear at the
      November 18, 2014 conference. Unbeknownst to [Appellant],
      however, [Mother] had been hospitalized and underwent a
      surgical procedure at Jefferson Hospital on October 30, 2014 and
      had not returned the praecipe to withdraw directly to the [c]ourt
      as requested.

Appellant’s Brief at 7.   Appellant complains that the court denied her the

opportunity to proffer this explanation for her non-compliance with the

October 20, 2014 order.

      In the absence of an evidentiary hearing and against the backdrop of

our prior cases, we are reluctant to conclude (as the trial court has done)

that Appellant’s failure to appear, without more, demonstrated the requisite

proof beyond a reasonable doubt that she acted deliberately and with

wrongful intent. The order at issue gave Appellant the option to withdraw

her appearance prior to the November 18, 2014 short list conference.

Appellant has come forward with an explanation declaring that she

attempted, albeit unsuccessfully, to exercise that option.     Appellant raised

this contention in her motion to have the court reconsider its contempt

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finding.3 The trial court, however, never conducted a hearing pertaining to

the sanctions order and, hence, never received or reviewed relevant

documents or testimony.         If credited by the court, Appellant’s explanation

would tend to show that her conduct, while perhaps irresponsible and

unprofessional, fell somewhat short of willfully wrong or intentional.

Accordingly, on the limited record before us, we vacate the order imposing

sanctions and remand for further proceedings.4

       Order vacated. Case remanded. Jurisdiction relinquished.




____________________________________________


3
  Appellant attached supporting documents to her reconsideration motion.
Exhibit C purports to be a praecipe to withdraw Appellant’s appearance
dated October 23, 2014 that Appellant claims to have forwarded to Mother.
Exhibit D is a cover letter dated October 25, 2014 that encloses the praecipe
to Mother. Lastly, Exhibit E is a letter dated December 2, 2014 from a
physician at Jefferson Hospital that states that Mother underwent a surgical
procedure at that facility on October 30, 2014. See Appellant’s Motion for
Reconsideration, 12/11/14.
4
  We do not approve Appellant's behavior in any way and we share the trial
court's frustration in this case. Indeed, Appellant’s conduct in representing
Mother, admittedly tempered by the client’s financial status, falls well short
of the standard of zealous advocacy required of Pennsylvania attorneys.
Nevertheless, “inasmuch as contempt is a creature of law and not merely of
power,” Stewart, 65 A.3d at 472, we are constrained to vacate the trial
court’s contempt finding.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




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