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                                  2018 PA Super 247



    IN THE INTEREST OF E.O., A MINOR           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: A.O., FATHER                    :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 2641 EDA 2017

                 Appeal from the Order Entered August 3, 2017
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-DP-0000127-2017


    IN THE INTEREST OF: B.O., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: A.O., FATHER                    :
                                               :
                                               :
                                               :
                                               :   No. 2643 EDA 2017

                 Appeal from the Order Entered August 3, 2017
      In the Court of Common Pleas of Philadelphia County Family Court at
                        No(s): CP-51-DP-0000228-2017


BEFORE:      LAZARUS, J., DUBOW, J., and PLATT*, J.

OPINION BY LAZARUS, J.:                             FILED SEPTEMBER 05, 2018

       A.O. (Father) appeals from the orders, entered in the Court of Common

Pleas of Philadelphia County, finding him in contempt1 for violating a visitation

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1 When reviewing a contempt conviction, much deference 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. Commonwealth v.
Pruitt, 764 A.2d 569, 574 (Pa. Super. 2000).
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* Retired Senior Judge assigned to the Superior Court.
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order in an underlying dependency proceeding and ordering him to serve

seven days of incarceration. After careful review, we vacate and remand for

further proceedings.

        At a January 20172 shelter care hearing, legal custody of Father’s minor

children, E.O. and B.O. (Children), was transferred to the Philadelphia

Department of Human Services (DHS); Children were placed in a foster home.

In February 2017, Children were adjudicated dependent; the trial court

ordered Father have weekly, supervised, line-of-hearing visits with Children,

at Children’s discretion, at the Community Umbrella Agency (Agency).3 At an

August 3, 2017 permanency review hearing, the trial court found Father in

contempt for violating the visitation order after Children told their assigned

social worker that Father calls them on the telephone ten times a day and was

meeting with them after court appearances.4 At the conclusion of the hearing,

the court ordered Father to immediately serve seven days of incarceration for
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2 In October 2016, DHS received a report alleging that Children’s sibling was
being emotionally abused by Mother. See Dependency Petition, 2/2/17.
There were also reports of a history of verbal and physical domestic abuse
between Mother and Father and that Father verbally abused Children’s older
sibling.

3 The permanency order also stated that visitation could be modified by
agreement of the parties, parents were to confirm their visits 24 hours in
advance, and, if parents failed to confirm visits within that time frame, they
were not to occur. Permanency Review Order, 2/7/17, at 2. Finally, the order
referred both Mother and Father for counseling and evaluations. Id.

4   See N.T. Permanency Hearing, 8/3/17, at 11-15.




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contempt.5 The court ordered both parents to continue with supervised visits

at the Agency, at the sole discretion of Children.     On August 10, 2017, the

court held a hearing, stating that the “case was brought back today only to

release Father from incarceration at CFCF. Father was held in contempt in

violation of court order at the last hearing on 8/3/2017.”

        Father filed a timely notice of appeal from the court’s contempt order

and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors raised on

appeal.6 He raises the following issues for our consideration:

        (1)   Whether the trial court erred by finding Father in criminal
              contempt, rather than civil contempt.

        (2)   Whether the trial court erred by sentencing Father for direct
              criminal contempt rather than indirect criminal contempt.

        (3)   Whether the trial court erred by failing to provide Father
              with all necessary [c]onstitutional protections and
              safeguards required for criminal defendants.


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5   Specifically, the permanency order states:

        THE COURT FURTHER FINDS Parents had unauthorized contact
        with Child.

                                       *       *   *

        Father to be held in contempt, on State Road for 7 days due to
        violating court order.

Permanency Review Order, 8/3/17, at 1.

6  In his Rule 1925(b) statement, Father states that he did not have
“inappropriate contact with any of [his] children,” that he did not violate the
visitation order by calling Children, that he did not call Children ten times per
day as alleged, and that “[t]he court may have mistaken [him] for [Mother].”
See Father’s Pa.R.A.P. 1925(b) Statement, 8/14/17.

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      (4)     Whether the trial court erred by failing to establish Father’s
              guilt beyond a reasonable doubt.

      (5)     Whether the trial court erred by failing to sentence Father
              in accordance with the Pennsylvania Rules of Criminal
              Procedure.

Appellant’s Brief, at 7.

      Contempt of court may be classified as civil or criminal in nature.
      The distinction between the two categories lies in the purpose
      behind the court’s finding of contempt. If the dominant purpose
      of the court is to prospectively coerce the contemnor into
      compliance with the court’s directive, the adjudication is one of
      civil contempt. However, if the court’s dominant purpose is to
      punish the contemnor for disobedience of the court’s order,
      the adjudication is one of criminal contempt.

In the Interest of C.W., 960 A.2d 458, 466 (Pa. Super. 2008) (emphasis

added), citing Pruitt, supra at 573.

      Criminal contempt may be classified as either direct or indirect. “A direct

criminal contempt consists of misconduct of a person in the presence of the

court, or 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.”    Fenstamaker v. Fenstamaker, 487 A.2d 11, 14 (Pa. Super.

1985) (citation omitted); Commonwealth v. Marcone, 410 A.2d 759, 762

(Pa. 1980). “A charge of indirect criminal contempt consists of a claim that a

violation of an order or decree of court occurred outside the presence of the

court.” Commonwealth v. Ashton, 824 A.2d 1198, 1203 (Pa. Super. 2003)

(citation omitted). Criminal contempt is a crime punishable by imprisonment

or fine; sentences of imprisonment for contempt must be imposed according

to the Sentencing Code, 42 Pa.C.S.A. § 9701.                Commonwealth v.

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Falkenhan, 452 A.2d 750, 757 (Pa. Super. 1982) (citation omitted).

Moreover, in cases where one is accused of criminal contempt, whether direct

or indirect, the accused is entitled to certain procedural safeguards.

       To establish a claim of indirect criminal contempt, the evidence must be

sufficient to establish the following four elements:

       (1) the order in question 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.

Ashton, 824 A.2d at 1203 (citation omitted).         The Pennsylvania Supreme

Court has emphasized that the order underlying a finding of indirect criminal

contempt must limit the alleged contemnor’s conduct in a clear and definite

manner. Id. Moreover, pursuant to 42 Pa.C.S. § 4133, except as otherwise

provided by statute, “the punishment of commitment for contempt provided

in section 4132 . . . shall extend only to contempts committed in open court.

All other contempts shall be punishable by fine only.” 42 Pa.C.S. § 4133

(emphasis added).

       Here, the trial court’s order constituted a finding of criminal7 contempt

where the visitation order set forth specific conditions surrounding Father’s

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7The characteristic that distinguishes civil from criminal contempt is the ability
of the contemnor to purge himself of contempt by complying with the court’s
directive. If he is given an opportunity to purge himself before imposition of
punishment, the contempt order is civil in nature. Sinaiko v. Sinaiko, 664



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visitation rights with Children, he allegedly violated these conditions by calling

Children on the phone daily and meeting with them after court proceedings,

and the court specifically stated that “it expect[s] that [its] court order will be

abided by.” N.T. Permanency Hearing, 8/3/17, at 22 (“that’s defiance of my

court order”); see Commonwealth v. Griffiths, 15 A.3d 73, 77 (Pa. Super

2010) (“If the dominant purpose is to vindicate the dignity and authority of

the court and to protect the interest of the general public, it is a proceeding

for criminal contempt.”) (citation omitted); see also Cipolla v. Cipolla, 398

A.2d 1053 (Pa 1979) (if contempt consists solely of past act, only allowable

judicial response is punitive, and any contempt adjudication must be criminal).

While Father’s conduct may have amounted to criminal contempt where the

trial court clearly sought to vindicate its authority and to punish Father for his

alleged misconduct, Father’s contemptuous conduct did not occur in open

court, nor did his misbehavior occur “so near thereto as to interfere with the

immediate business of the court.” Fenstamaker, supra. Thus, his conduct

is classified as indirect criminal contempt.     Compare Commonwealth v.

Baker, 766 A.2d 328 (Pa. 2001) (charge of indirect criminal contempt consists

of claim that violation of court order or decree occurred outside presence of


____________________________________________


A.2d 1005, 1009 (Pa. Super. 1995) (citation omitted). If the purpose of the
order is to punish despite an opportunity to purge, the order is criminal in
nature. Id. Here, the court clearly imposed criminal, not civil contempt upon
Father by immediately incarcerating him for violating a visitation order and
not giving him an opportunity to purge.


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court) with Knaus v. Knaus, 127 A.2d 669, 671 (Pa. 1956) (direct contempt

occurs either in presence of court or “so near thereto to interfere with its

immediate business.”).

       Where one is accused of indirect criminal contempt, he shall enjoy the

right to be notified of the accusation and time to prepare a defense. See

Cipolla, 398 A.2d at 1056; see also In re Martorano, 346 A.2d 22 (Pa.

1975) (accused in criminal contempt proceeding entitled to essential

procedural     safeguards     attendant        to   criminal   proceedings   generally).

Moreover, an individual may only be found guilty if the order underlying the

finding of indirect criminal contempt limited his conduct “in a clear and definite

manner.” Ashton, supra. Here, the visitation order permitted Father to have

weekly, supervised, line-of-hearing visits with Children at the Agency, at

Children’s discretion, and also permitted modification of visitation by

agreement of the parties.

       Father instantly denied calling Children ten times a day8 and also

claimed he never had unauthorized meetings with Children after court

proceedings. N.T. Permanency Review Hearing, 8/3/17, at 23-25. Although

the trial judge deemed Father not credible and found him to be manipulative,

it did not provide Father with any of the required procedural safeguards


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8 Notably, the permanency order does not mention whether Father was
permitted to contact Children via telephone or whether he was restricted from
communicating with them other than during supervised visitation.


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attached to indirect criminal contempt matters. Moreover, pursuant to section

4133, the trial court was only permitted to fine Father, not incarcerate him.

See Commonwealth v. Marcone, 410 A.2d 759 (Pa.1980) (restricting

incarceration to direct contempts).9           Because the trial court clearly failed to

understand the nature of the proceedings, imposed an unauthorized sentence

of imprisonment and, concomitantly, failed to accord Father the procedural

safeguards he was due, we must vacate. Pruitt, supra.

        Order vacated. Jurisdiction relinquished.

        Judge Platt joins this Opinion.

        Judge Dubow did not participate in the consideration or decision of this

case.




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9 In Commonwealth v. McMullen 961 A.2d 842 (Pa. 2008), the Supreme
Court held 42 Pa.C.S.A. § 4136 (statute for indirect criminal contempt
proceedings involving restraining order or injunction) unconstitutional,
recognizing that the right to a jury trial is procedural, that the Pennsylvania
Constitution only provides for a jury trial when a criminal defendant faces a
term of imprisonment exceeding six months, and that courts have authority
to punish individuals in violation of their orders. The McMullen Court,
however, specifically limited its holding to subsection 4136, stating “[w]e
recognize there is other statutory law concerning contempt in Title 42, see 42
Pa.C.S. §[§] 4132-39; however, only § 4136 is at issue in this case.” Id. at
856 n.6. We realize that section 4133 proscribes a court’s power to imprison
an individual found guilty of indirect criminal contempt. However, since the
constitutionality of section 4133 is not before us today, unless and until the
Supreme Court holds otherwise, that subsection is still valid.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/18




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