J-S29019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

A.M.                                                  IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                       v.

L.B.

                                                           No. 3347 EDA 2016
APPEAL OF: STACEY L. SHIELDS, ESQUIRE
                   Appeal from the Order September 29, 2016
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2011-0087


BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.                  FILED SEPTEMBER 29, 2017

        Appellant,   Stacy    L.   Shields,    Esquire,   former   counsel   for   L.B.

(“Mother”), appeals the September 29, 2016 order of the Court of Common

Pleas of Montgomery County holding Appellant in criminal contempt and

ordering her to pay a $100 fine to the Montgomery County Bar Association

and counsel fees of $620 to Brian Smith, Esquire, counsel for A.M.

(“Father”). We affirm.

        The underlying case commenced in January 2011.                Trial Ct. Op.,

4/7/15, at 1; [A.M.] v. [L.B.], No. 921 EDA 2015, at 1-2 (Pa. Super. May 4,

2015) (unpublished memorandum); Trial Ct. Op., 12/20/16, at 1-2.                    On




____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-S29019-17



March 15, 2011, Appellant entered her appearance on behalf of Mother.1 On

October 1, 2014, Mother filed an emergency petition to modify custody. On

October 20, 2014, the trial court held a pre-trial conference on the

emergency petition, which was attended by Mother, Father, and Attorney

Smith. When Appellant failed to appear, the trial court called her office from

the bench; excerpts of the telephone call, which was conducted on a speaker

phone and transcribed as part of the notes of testimony, follow:

       THE COURT:       Hi. This is Judge Weilheimer.    I’m calling for
       Stacey Shields. Is she available?

       [APPELLANT’S] SECRETARY: No, she’s not.          She’s with a
       client.

       THE COURT:       Well, I’m on the bench right now in a case
       where she still has her appearance entered and we haven’t
       heard from her, nor has she withdrawn her appearance.

              ...

       THE SECRETARY: She said to leave your number and as
       soon as she’s finished prepping her client, she’ll give you
       a call back.

       THE COURT:        Yes. I’m on the bench right now in the middle
       of this case. So I will give you the number for chambers but I’m
       about to start another trial and if she has not withdrawn her
       appearance, she will have to come into court and address that.
       So let me give you the number.

____________________________________________
1
  In her brief to this Court, Appellant explained: “[Appellant] entered her
appearance for [Mother] on March 15, 2011. Owing to financial constraints,
however, [Mother] continued to represent herself pro se over the next three
years and, when she could afford to engage [Appellant’s] services, she
would do so.” Appellant’s Brief at 5.



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     THE SECRETARY: Okay. Hold on. Let me tell her you’re on the
     bench. Hold on.

     [After Appellant comes to the phone:]

     [APPELLANT:]     Well, if [Attorney Smith] wants to call me
     directly now, Your Honor, so not to hold up your list, and if
     [Mother] doesn’t mind, I don’t mind speaking to him now. It
     just would be difficult for me because I don’t know if she
     told you that she pulled me out of a deposition right now
     because you’re on the phone.

           ...

     [THE COURT:]       I’m going to need you to withdraw your
     appearance immediately so they can start talking directly;
     otherwise, we will schedule it back for a short list and I’ll need
     you here in court.

N.T., 10/20/14, at 2-4 (emphasis added).          The trial court described

Appellant as “lack[ing] concern for her absence in court,” Trial Ct. Op.,

12/20/16, at 2, and Appellant’s “tone” as “disrespectful and dismissive.”

Order, 5/13/16, at 1.

     Later that day, the trial court entered a written order clarifying the two

options that it gave to Appellant at the conclusion of the conference call:

Appellant “must withdraw her appearance no later than November 3, 2014,

or, in the alternative, be present for the rescheduled Short List Conference

on November 18, 2014 at 12:00 P.M.” Order, 10/20/14. Appellant failed to

comply with either option.

     Appellant claims that she then attempted to file a praecipe for

withdrawal of her appearance, but that the prothonotary rejected it because

it was not signed by Mother.     According to Appellant, she then sent the

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praecipe to Mother with instructions for Mother to sign it and file it with the

court. However, because Mother was ill and having surgery, Mother never

saw Appellant’s correspondence and did not take any action regarding the

praecipe.    Appellant concedes that she took no action herself to follow up

with Mother or to assure that the praecipe was filed, depending entirely on

Mother to file the legal document that the court had ordered Appellant to

file.   As a result, Appellant’s appearance for Mother was never withdrawn.

When the date of the November 18, 2014 conference arrived, Appellant did

not attend because she assumed her appearance had been withdrawn.

Appellant made no effort to confirm that fact, even though the court had

ordered her to appear at the conference if she did not withdraw her

appearance.

        On November 24, 2014, without holding a hearing, the trial court

issued an order holding Appellant in direct criminal contempt “as she has

failed to comply with the October 20, 2014 Order of this Court by failing to

appear for a Short List Conference on November 18, 2014, thereby

obstructing the administration of this case.”       Order, 11/24/14; see also

Trial Ct. Op., 4/7/15, at 3; Trial Ct. Op., 12/20/16, at 3.        Appellant was

ordered to pay a fine of $250 to the Montgomery County Bar Association

within thirty days of the date of the order and to pay counsel fees of $620 to

Attorney    Smith   “for   preparation    and   appearance   at   the   short   list

conference[s] held on November 18, 2014 and October 20, 2014.” Id.


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      On December 18, 2014, Appellant timely filed her first notice of

appeal, in which she challenged various aspects of the trial court’s

discretionary authority to issue contempt orders.      On May 4, 2016, we

issued an opinion at Docket Number 921 EDA 2015 that “vacate[d] and

remand[ed] for further proceedings.” [A.M.], 921 EDA 2015, at 1.

      We explained that under the Judicial Code, 42 Pa. C.S. § 4132(2), a

court may “impose summary punishments for contempts of court” in cases

of “disobedience or neglect by officers, parties, jurors or witnesses of or to

the lawful process of the court,” and that this power extends to

“disobedience or neglect by attorneys,” including, specifically, “counsel’s

failure to appear for a scheduled court appearance.” [A.M.], 921 EDA 2015,

at 4-5. We therefore held 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).” Id. at 6. We added, however, that a remand was needed for a

hearing on Appellant’s state of mind when violating the trial court’s order:

            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;


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          (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 [458], 467 [(Pa. Super.
     2008)] (quotation, 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. . . . Moreover,
     Appellant’s claim that she 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 . . . .

     [Our] 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 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

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       have the court reconsider its contempt finding. The trial court
       . . . 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.

[A.M.], 921 EDA 2015 at 6-8, 10-11 (footnotes omitted).

       On May 13, 2016, the trial court scheduled a hearing on the direct

criminal contempt accusations against Appellant for May 31, 2016.          The

scheduling order thoroughly articulated the accusations against Appellant,

including all of the procedural history explained above. Order, 5/13/16, at

1-2.   The order also warned that “should [Appellant] be held in direct

criminal contempt, this Court may impose a monetary fine as a form of

sentence.” Id. at 3. Finally, the order instructed Appellant “to bring to the

Contempt Hearing any financial statements, tax returns or other applicable

documents to assist th[e trial c]ourt in said determination.” Id.

       After being rescheduled, the hearing was held on September 22, 2016.

At its conclusion, the trial court found that Appellant’s behavior in

contravention of its October 20, 2014, order, “was volitional, willful and

deliberate.”   Trial Ct. Op., 12/20/16, at 4.    After receiving evidence of

Appellant’s financial hardship, the trial court reduced the amount to be paid

by Appellant to the Montgomery County Bar Association from $250 to $100.




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On September 29, 2016, the trial court entered a written order confirming

this holding.

      The next day, Appellant filed timely a notice of appeal to this Court.

Appellant now raises the following issues for our review:

      1.    Whether the court exceeded the scope of the Superior
      Court’s remand order when it found Attorney Shields in
      contempt of court, thereby committing an error of law.

      2.    Whether the court committed an error of law when it
      concluded that sufficient evidence of intent was adduced at the
      contempt hearing to support a finding of direct criminal
      contempt against Attorney Shields.

      3.    Whether the court abused it[s] discretion when its finding
      that Attorney Shields[] was in direct criminal contempt was
      against the weight of the evidence adduced.

      4.    Whether the court abused its discretion when it refused to
      recuse and disqualify itself from proceedings in the present
      criminal contempt matter.

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      Our standard of review “when considering an appeal from an order

holding a party in contempt of court is narrow: We will reverse only upon a

showing of an abuse of discretion.” Childress v. Bogosian, 12 A.3d 448,

465 (Pa. Super. 2011) (citation omitted). Similarly, “[a] judge’s refusal to

recuse himself will not be reversed absent a clear abuse of discretion.”

Commonwealth v. Council, 421 A.2d 623, 625 (Pa. 1980). “Finally, the

trier of fact while passing upon the credibility of witnesses and the weight of

the evidence produced, is free to believe all, part or none of the evidence.”

Commonwealth v. Brown, 23 A.3d 544, 560 (Pa. Super. 2011) (en banc).

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J-S29019-17


      After a thorough review of the record, the briefs of the parties, the

above applicable law, and the well-reasoned opinion of the Honorable Gail A.

Weilheimer dated December 20, 2016, we conclude that Appellant’s issues

merit no relief.     The trial court opinion comprehensively discusses and

properly disposes of the questions presented. See Trial Ct. Op., 12/20/16,

at 4 (finding that this Court previously concluded that “there was sufficient

evidence to establish the first two elements listed in” the test for a finding of

contempt pursuant to 42 Pa.C.S. § 4132(2)), 10-16 (finding that the

remaining two elements – that Appellant’s violative act was voluntary and

that Appellant acted with wrongful, willful intent – were established beyond

a   reasonable     doubt   by   sufficient   evidence,   and   making   credibility

determinations that also go towards the weight of the evidence), 16-19

(finding that the trial court did not abuse its discretion when denying

Appellant’s motion for recusal as there are no bases for such relief), and 4,

17 (finding the trial court, as per and within the scope of the Superior

Court’s direction, held a full, fair, and impartial contempt hearing to

determine the limited issues of whether Appellant’s failure to abide by the

October 20, 2014, Order was voluntary, willful, and deliberate beyond a

reasonable doubt (citing [A.M.], 921 EDA 2015 at 10-11)). With respect to

proof of willful intent, the trial court found that, although it believed the

testimony regarding why Mother failed to file the praecipe for withdrawal,

Appellant still was willfully wrongful in delegating to Mother the responsibility


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to make that filing even though the trial court placed that responsibility on

Appellant, failing to make sure that the filing had been accomplished, and

concluding that she did not have to appear at the November 18, 2014

conference. Trial Ct. Op., 12/20/16, at 10-16. We defer to the findings by

the trial court on this issue and find no error.

      Thus, we affirm on the basis of the trial court’s opinion, and the parties

are instructed to attach a redacted copy of the trial court’s opinion of

December 20, 2016, to any future filing that references our decision. The

trial court’s opinion of December 20, 2016, had affixed to it the trial court’s

order of October 20, 2014, the trial court’s opinion of April 7, 2015, this

Court’s memorandum opinion of May 4, 2016, and the trial court’s

scheduling orders of May 13, 2016, and May 26, 2016; redacted copies of

these four documents should therefore also be attached to any future filing

that references our decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017




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