J-A17045-15


                            2016 PA Super 126

ROSALIND W. SUTCH, AS EXECUTRIX OF             IN THE SUPERIOR COURT OF
THE ESTATE OF ROSALIND WILSON,                       PENNSYLVANIA
DECEASED



                   v.

ROXBOROUGH MEMORIAL HOSPITAL,
SOLIS HEALTHCARE, LP, ANDORRA
RADIOLOGY ASSOC., TENET
HEALTHSYSTEM ROXBOROUGH, LLC,
TENET, INC., TENET GROUP, LLC,
ROXBOROUGH EMERGENCY PHYSICIAN
ASSOCIATES, LLC, BARBARA GOLDMAN
ROBINS, M.D., ROBERT DOMANSKI,
M.D., MICHAEL DEANGELIS, M.D., ERIN
O’MALLEY, M.D., JEFFREY GELLER, M.D.,
AND MELANIO AGUIRRE, M.D.

APPEAL OF: NANCY RAYNOR, ESQUIRE
                                                   No. 3494 EDA 2014
AND RAYNOR & ASSOCIATES, P.C.


             Appeal from the Order Dated November 4, 2014
           In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): 0907-0901


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

OPINION BY GANTMAN, P.J.:                            FILED JUNE 15, 2016

     Appellants, Nancy Raynor, Esquire and Raynor & Associates, P.C.,

(collectively “Ms. Raynor”) appeal from the order entered in the Philadelphia

County Court of Common Pleas, which found Ms. Raynor in civil contempt

and imposed monetary sanctions in the amount of $946,197.16. We reverse

the contempt order and vacate all judgment on the sanctions imposed.
J-A17045-15


      The relevant facts and procedural history of this case are as follows.

Around noon, on May 3, 2007, sixty-eight year-old Rosalind Wilson came to

the emergency room at Roxborough Memorial Hospital with complaints of

chest pain, shortness of breath on exertion, cough, profuse sweating,

nausea, and frontal headache.      Her medical history included osteoporosis,

vascular disease, hypothyroidism, and hypertension.              The immediate

treatment plan was to rule out a heart attack. Around 4:00 p.m., Ms. Wilson

also underwent a chest x-ray and later lung scans. Ms. Wilson was admitted

to the hospital as an inpatient for observation. Although the tests ruled out

a cardiac event, the lung studies revealed in relevant part a node in her left

lung, with a recommendation for a computed tomography (CT) scan of the

thorax for further evaluation. The CT scan was not performed. Ms. Wilson

was discharged from the hospital the next day. No one informed Ms. Wilson

of her lung node.    Ms. Wilson experienced a change in mental status.          In

January 2009, Ms. Wilson underwent a chest x-ray at Jeanes Hospital. The

x-ray revealed a large mass in her left lung.            Further testing revealed

metastatic brain disease.      Ms. Wilson was diagnosed with Stage IV, non-

small cell lung cancer with metastases.

      On July 9, 2009, Ms. Wilson commenced a malpractice action against

numerous medical defendants for negligent medical care and treatment that

deviated from the accepted standards of care, increased her risk of harm,

directly   and   proximately    contributed   to   her   suffering,   and   caused


                                      -2-
J-A17045-15


enumerated damages. Ms. Wilson died on July 21, 2009. After her death,

her daughter Rosalind Sutch, Executrix of the Estate of Rosalind Wilson, was

substituted as plaintiff (“Plaintiff”).   Ms. Raynor served as defense counsel

on behalf of two of the defendants, Dr. Jeffrey Geller and Roxborough

Emergency Physician Associates, LLC (“REPA”).             Pleadings and discovery

were followed by an amended complaint filed in January 2011.

      The parties filed various motions in limine (“MIL”) in 2011.             On

November 21, 2011, Plaintiff filed a motion to preclude at trial any reference

to decedent’s smoking history, primarily on the grounds of unfair prejudice,

confusion of the issues, and danger of misleading the jury. By order dated

December 5, 2011, and docketed December 6, 2011, the trial court entered

a pretrial order that granted Plaintiff’s MIL, in part, to preclude evidence,

testimony and/or argument by the defendants regarding decedent’s smoking

history as irrelevant and unfairly prejudicial on the issue of liability.     The

court determined, however, that decedent’s smoking history was relevant on

the issue of damages. The court ordered the trial bifurcated into two phases

with the same jury; if the jury found liability then decedent’s smoking

history would be admissible in the second phase, to follow immediately, in

which damages would be assessed.                If Plaintiff chose to withdraw the

motion, the trial would not be bifurcated; and decedent’s smoking history

would be admissible with a cautionary instruction on its limited relevance.

      Due to subsequent changes in the witness list, Plaintiff’s counsel


                                          -3-
J-A17045-15


renewed their pre-trial motion to preclude evidence at trial of decedent’s

smoking history and asked the trial court to grant the motion in its entirety,

not just in part, because now there was no defense expert testimony

supporting any issue for which smoking was relevant, even for life

expectancy. (See N.T. MIL, 5/16/12, at 8; R.R. at 311a.) The trial court

(another jurist) entered a new order that precluded defendants from

“presenting any evidence, testimony, and/or argument regarding decedent’s

smoking history” either before or after her cancer diagnosis.         (See Trial

Court Order, dated May 16, 2012, filed May 21, 2012, at 1; R.R. at 372a.)

This order was entered by agreement of all parties and superseded the

earlier December 2011 order on the admission/preclusion of decedent’s

smoking history. The first jury trial began on May 21, 2012.

      When the defense case was about to begin, on May 30, 2012,

Plaintiff’s counsel asked the court to enter an order directing defense counsel

to speak with their defense witnesses about the smoking preclusion

immediately before those witnesses took the stand. That exchange was as

follows:

           [Plaintiff’s Counsel] MR. MESSA:       I just wanted to
           make sure we have, you know, we’re clear on the record
           that the defendants’ counsel each speak to their expert
           witnesses before they get on the stand and make it clear
           that they’re not to raise that issue, blurt it out, volunteer
           it, et cetera, and the defendants as well.

           [COURT]:                           Okay. Well, I don’t
           have a response. They know the rules. So I assume—did


                                       -4-
J-A17045-15


             you talk with them?     Maybe you didn’t bring that up this
             morning.

             [Plaintiff’s Counsel] MR. MESSA:         No, Your Honor.

             [COURT]:                             All right. Well the
             defendants are on notice of that request which is part of
             what we’re doing, so…

(N.T. Trial #1, 5/30/12, A.M. Session, at 5-6; R.R. at 732a-733a). Following

this exchange, the court issued no order or directive specifically requiring

defense counsel to speak to their expert witnesses or the defendants about

the smoking ban or warn them immediately before each expert witness

testified.

      During the defense case on May 31, 2012, Ms. Raynor called John J.

Kelly, D.O. as her emergency medicine expert to testify.               About twenty

transcript pages of voir dire questions concerning Dr. Kelly’s qualifications

followed smoothly, and he was accepted as an expert on emergency room

medicine and practice. After voir dire concluded, the court said:

             COURT:                     All right. I think it’s a little hot.
             We’re going to turn the air conditioners on and take a
             break, and then we’ll come back with the direct
             examination. I think that’s the best way to do this.

             Doctor, during the break, you may relax, but don’t
             discuss your testimony during the break.

             DR. KELLY:                  Thank you, Your Honor.

             COURT:                       All right. The jury is excused,
             about 10 minutes or         so, 10 or 15 minutes.        Air
             conditioners can go on.

(N.T. Trial #1, 5/31/12 P.M. Session, at 83; R.R. at 933a) (emphasis

                                          -5-
J-A17045-15


added).   After the break, Ms. Raynor began her direct examination of Dr.

Kelly. Dr. Kelly explained to the jury generally how emergency rooms work

as a practical matter in real time, regarding patients who are treated and

then released versus patients who are preliminarily treated in the emergency

room and then admitted to the hospital for further medical care and

management, including communications among the various health care

providers about patient case history and test results under either scenario.

(Id. at 84-103; R.R. at 933a-938a).         For purposes of relevant, proper

context, we quote from the trial transcript as follows:

          MS. RAYNOR:               Can you tell the jury, give the
          jury some idea of what Dr. Geller’s thought process is as
          gleaned from the records when this patient came in with
          the complaints that she had. Can you tell what ·Dr. Geller
          was evaluating her for?

          DR. KELLY:               I read the ER record. And from
          the emergency department record of Dr. Geller, the
          patient came in with chest pain. It seemed to be right-
          sided. There was some associated shortness of breath and
          sweating with it.

                         He did the usual thing that an     emergency
          physician would do: go to the bedside, get the    vital signs,
          do a proper physical exam and a history to find   out exactly
          how this happened, what did it feel like, to      be able to
          process exactly what it could be.

          MS. RAYNOR:               And are those all appropriate
          things to do?

          DR. KELLY:                Yes.

          MS. RAYNOR:               Okay.

          DR. KELLY:                And then, you know, EKG, chest

                                     -6-
J-A17045-15


       x-ray, some lab tests, cardiac enzymes, and then offer
       treatment, too. Offer nitroglycerin, morphine, things like
       that, to be able to see if this would help the patient.

       MS. RAYNOR:                And were all of those things that
       you just specified appropriate things to do; in other words,
       the EKG, the cardiac−

       DR. KELLY:                 Yes.

       MS. RAYNOR:                −enzymes, and so forth?

       DR. KELLY:                 Yes.

       MS. RAYNOR:               Okay.     So if Dr. Geller was
       thinking that she had a cardiac issue, those are the things
       that would be appropriate to do?

       DR. KELLY:                 Yes.

       MS. RAYNOR:                Okay. Now, you’ve seen also
       that a portable chest x-ray was done?

       DR. KELLY:                 Yes.

       MS. RAYNOR:                Was that an appropriate thing to
       do?

       DR. KELLY:                 Yes.     A chest x-ray is an
       essential part of helping to add some insight into what
       could be causing a patient’s chest pain.

       MS. RAYNOR:              Did you see any indication in Dr.
       Geller’s records that he was thinking this patient had a
       pulmonary embolism or PE?

       DR. KELLY:                 I saw no evidence of that in the
       chart, no.

       MS. RAYNOR:               Okay.      And what type of
       evidence would you look for if you were looking for that?

       DR. KELLY:                 Well, I mean, patients who have
       a blood clot in their lungs are usually in a lot of distress.

                                   -7-
J-A17045-15


       They have pain. They’re having trouble breathing. Their
       oxygen level is low. Sometimes they’re blue.

                       And then they also have risk factors, like
       they might have a blood clot in their leg or a tenderness in
       their calf, because what happens is the blood clot begins in
       the calf and then it actually migrates up the vein and then
       up into the great veins and up into the lung. So we
       usually−you know, we usually have scores to ask about a
       person’s risk factors for blood clots.

       MS. RAYNOR:                  Aside from what you saw in the
       records which you’ve just described, did you find anything
       in Dr. Geller’s deposition transcript that educated you as to
       what his thought process was?

       DR. KELLY:                From the patient’s ER record
       and from deposition testimony, it appeared as if the
       patient had some sort of chest pain that was unclear as to
       exactly what the cause was.

                      There was nothing in the ER that he found
       that pointed towards anything.

                        So−and sometimes−most chest-pain cases
       happen that way, where you check everything and you
       don’t find a heart attack or a blood clot or anything; but
       you admit the patient just to play it safe so that they can
       have cardiac enzymes drawn over 24 hours to make sure
       this is not a silent heart attack or something like that.

       MS. RAYNOR:                Did she have any cardiac risk
       factors?

       DR. KELLY:                 The patient was a smoker.
       The patient was hypertensive. So, yes, I mean, those are
       big risk factors. And the patient had vascular disease, too.

                       So, I mean, this is somebody who is a high
       risk for a problem with the heart. And I think that it was a
       safe move to admit the patient to a monitored bed,
       cardiac-monitored bed, to make sure that that gets sorted
       out over 24 hours, yes.


                                   -8-
J-A17045-15


       MS. RAYNOR:                Did you find anything in the
       deposition testimony that led you to believe that Dr. Geller
       was considering she had a pulmonary embolism versus a
       cardiac event?

       DR. KELLY:               No. I mean, the only thing I
       saw in the deposition testimony of the emergency
       physician was that when he called the doctor who accepted
       the case, Dr. Aguirre, that, according to the deposition
       testimony, Dr. Aguirre, the accepting attending, said,
       “Hey, could you please do a lung scan just so that we can
       be sure that there’s no blood clot.” And so he did that
       favor. He wrote the order as a favor to say, “Yeah, okay,
       I’ll do it for you.”

                      But    I   think    that   his−his    pretest
       probability−in other words, if he were to calculate what the
       risk was that this person had a blood clot, from the record
       and from the deposition testimony, the pretest probability
       was near zero.

       MS. RAYNOR:              Now, as an ED physician, if he
       wanted to−if he was considering a pulmonary embolism
       for this patient, did he have to do a VQ scan before
       initiating treatment?

       DR. KELLY:                  If I think the patient has a
       major blood clot in their lung, then I would probably order
       blood thinner right then and there, because you have to
       thin the blood so that there [are] no more clots that would
       get trapped in the lung.

       MS. RAYNOR:                So he could have done that
       without the benefit of a VQ scan?

       DR. KELLY:                 Could have done that; correct.

       MS. RAYNOR:             And did you see any evidence
       that Dr. Geller did order heparin or any other blood
       thinners?

       DR. KELLY:                 No, he did not.

       MS. RAYNOR:                Based on what you’ve told us,

                                  -9-
J-A17045-15


         that she had various cardiac−

         [Plaintiff’s Counsel] MR. D’ANNUNZIO: Objection,         Your
         Honor. May we see you at sidebar?

(Id. at 103-108; R.R. at 938a-939a) (emphasis added).              The sidebar

discussion was off the record. Afterwards, the court dismissed the jury for a

break, and the jury left the courtroom. Then on the record Plaintiff’s counsel

registered a hearsay objection to Dr. Kelly’s testimony regarding a document

containing   the   American   College   of   Emergency   Physicians       (“ACEP”)

guidelines for physician experts in emergency medicine.      Plaintiff’s second

objection involved Dr. Kelly’s testimony on decedent’s smoking as a cardiac

risk factor. The following exchange occurred:

         [Plaintiff’s Counsel] MR. MESSA:         The other issue is
         a more significant one.

         COURT:                   Well, obviously, but I want to
         make sure everyone puts everything they want on the
         record. So we can talk about the other issue.

         [Plaintiff’s Counsel] MR. D’ANNUNZIO: The       other   issue,
         Your Honor−

         COURT:                    Well, I was going to ask the
         witness a couple questions.

         [Plaintiff’s Counsel] MR. D’ANNUNZIO: Right. Was he
         prepped about the order that the [c]ourt had made? I
         mean, I would ask−

         COURT:                  Well, you may stand or be
         seated, and then you can talk after I get done. How’s
         that?

         [Plaintiff’s Counsel] MR. D’ANNUNZIO: Right.       That’s all
         right.

                                    - 10 -
J-A17045-15



       COURT:                      Doctor,        just     a   couple    of
       questions I have.

       DR. KELLY:                  Sure.

       COURT:                      We had a lot of concerns in this
       case, and for legal reasons and other reasons I made
       specific orders that they call like Motions in Limine, pretrial
       orders. And one of the orders was that we don’t mention
       anything about tobacco or smoking or that the decedent
       was a smoker, et cetera.

                      In your answer to a question elicited by
       counsel, Ms. Raynor, you mentioned the word, “She was a
       smoker.” I wrote it in my notes, but I didn’t say anything.
       And there was no loud objection. But when we went
       sidebar, we didn’t want to make it an issue in front of the
       jury when it came out.

                      My real question to you is, we asked
       counsel to instruct every witness not to make mention of
       this.

                      Were you advised of such orders or−

       DR. KELLY:                  Well, I mean, I−

       COURT:                    Did you have a discussion with
       Ms. Raynor about this issue?

       DR. KELLY:                  I      don’t          remember       any
       discussion about that at all.

                     But, you know, this was in a different
       context. This was in a context of cardiac risk factors.

       COURT:                      Yes. That may be−

       DR. KELLY:                  And–

       COURT:                    −your explanation.    But my
       question more directly is: Did counsel advise you about


                                   - 11 -
J-A17045-15


       tobacco, smoking or not smoking or bringing up the idea of
       the patient being a smoker?

       DR. KELLY:                I can’t remember.

       COURT:                    You can’t remember?

       DR. KELLY:                No.

       COURT:                    Did you have a discussion today
       with her at all?

       DR. KELLY:             I   did   have   some    brief
       discussions with Ms. Raynor today, but not regarding
       smoking, no.

       COURT:                    Okay.

       DR. KELLY:                 No.   And, I mean, honestly,
       Your Honor, it’s a very innocent comment for me because
       of the context. The context was, you know: Did she have
       cardiac risk factors?

       COURT:                    Well, we’re not saying that you
       intended anything other than what’s innocent. But in a
       legal proceeding, there are certain things that are
       admissible and certain things that are not for various
       reasons. One is prejudicial versus probative of the issues
       at trial.

                      And that’s one of the issues that’s sort of
       not to be raised.

                       So,      number one,    under    no
       circumstances−and I realize, you know, you assess a
       patient for certain things−

       DR. KELLY:                Sure.

       COURT:                    −respiratory and whatever.

       DR. KELLY:                Sure.

       COURT:                    But those issues are not to be

                                 - 12 -
J-A17045-15


       brought up or discussed.    You’re going to testify further
       today possibly−

       DR. KELLY:                 Okay.

       COURT:                     −and     I   don’t   want    that
       mentioned.

       DR. KELLY:                 Okay.

       COURT:                      There won’t be a question. Ms.
       Raynor didn’t ask you a question to directly elicit it, I
       don’t think. But I’ll let the record stand the way it is, and
       maybe we can talk with counsel later about her side of the
       story.

       MS. RAYNOR:                 We can certainly do that, Your
       Honor. I know that we did talk about referring to social
       habits. I mean, and I said that the judge−you were
       redacting certain records and certain things, including−my
       recollection is that we talked about it when we prepped a
       couple of days ago. Granted, I threw a lot of information
       at the doctor. We were prepping about a lot of things.

                     But I said that, you know, the only way we
       can talk about these cardiac risk factors or social habits is
       by using the word “social habits,” that smoking’s out of the
       case.

                      I thought I had made myself clear.         I
       certainly would never violate a [c]ourt order or instruct a
       witness to do so.

       COURT:                     Do you have anything to say?

       MS. RAYNOR:               We looked at−if I could just say,
       we looked at records with redactions, so clearly there’s two
       sets of records. There’s one that has smoking in it and
       one that doesn’t. And−

       [Plaintiff’s Counsel] MR. D’ANNUNZIO: Your Honor, we
       have really grave concerns about what just happened. We
       were worried that somebody would use this perhaps as a
       tactic or inadvertently to get as far into our case where we

                                  - 13 -
J-A17045-15


           were all in and then put us in a position of a mistrial.

                          And Your Honor was−we brought that to
           your attention specifically, and Your Honor directed
           defense counsel to have specific instructions with their
           experts that this word was not to be mentioned.[1]

                           The rulings went not just to the confusion
           on the liability issue; but there was no basis for that to
           come into the case and that it would be prejudicial, which
           was the basis for our Motions in Limine.

                         We noticed a number of jurors pick up their
           pads and make a note when that word was mentioned
           today, and my tech witnessed it.[2]

                          So this is really serious what’s happened
           here today, and Ms. Raynor is directly responsible. She’s
           evidenced other conduct for which judges in this
           courthouse in this case have sanctioned her−held that she
           engaged in sanctionable conduct.[3]

                        We’re in a dilemma now, which I think is a
           tentative−where we were intentionally put in that
           dilemma.[4]

           MS. RAYNOR:                    I think that−

           [Plaintiff’s Counsel] MR. D’ANNUNZIO: I ask that we have
           a chance to discuss it, reflect on it this evening, discuss it
           with our clients. At a minimum we're going to ask to be
____________________________________________


1
 In fact, there was no specific direction to defense counsel to instruct their
witnesses.
2
    This statement was not confirmed or verified.
3
 This statement was wholly gratuitous, without confirmation or verification
at that time.
4
  This statement on intent is unfounded and purely the opinion of Plaintiff’s
counsel.



                                          - 14 -
J-A17045-15


          able to voir dire the jury on the record about any impact it
          had on their decision and hold Ms. Raynor and her client
          and the expert liable for it for the contempt of court.

          MS. RAYNOR:                 I think that’s a fairly serious
          thing to say. Dr. Kelly and I have had a number of
          discussions. And I certainly did advise that we had this
          issue in the case, that we’re not to refer to smoking. And I
          think to blame me for it and say that I intentionally did this
          is totally without basis.

                          Your Honor could see I was shocked when it
          came out because I immediately looked at you, and I was
          waiting for counsel to get up and say something. But I
          kept going because no one said anything. And I figured
          gloss over it and keep moving.

                         So I certainly did not−in fact, when I talked
          about cardiac risk factors, Your Honor, I wasn’t even going
          towards the smoking. Where I was going was the PVD and
          the other carotid issues.

          COURT:                      Well, I’m more concerned about
          the fact that each counsel should have and was
          responsible to at least bring up directly before each of their
          witnesses takes the stand to mention that this particular
          aspect of the case, regarding tobacco and smoking, should
          not be mentioned in their answers.[5]

                        It certainly was an order of the [c]ourt, and
          we spent so much time going over this. It’s just not
          reasonable that you don’t take that extra minute to do
          that. Now, I’m not −

          MS. RAYNOR:                     I believe, Your Honor−

          COURT:                      I’m    not     talking   about
          intentional.    I don’t know what’s intentional, what isn’t.
____________________________________________


5
  The court’s statement about the timing of warnings is inaccurate, in terms
of what counsel was obligated to do versus what the court hoped counsel
would do.



                                          - 15 -
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        It’s very hard sometimes to get that far into it. But how it
        affects one side or the other is a big problem, and I don’t
        always know the answer.

                       I thought I had a solution in a case one
        time. And this is so funny, because I thought I had a
        great solution. I had the same problem with cocaine. The
        word wasn’t supposed to be mentioned. It didn’t have
        anything to do with the case, and it came out in the case.

                       So plaintiff’s counsel asked me for a
        mistrial, and I had a nice conversation with everybody.
        And I tried to work it out and go through the case, and, I
        don’t know. Whatever I did, I got reversed. I don’t think
        the appellate court was−

        MR. McCANN:                I don’t know about that, Judge.

        COURT:                     I don’t think the appellate court
        was right, but I respect their decision accordingly. But I
        don’t think there’s winning and losing in these things. We
        want a fair trial for both sides. So I do what I think is
        right.

                       As far as sanctions, that’s something I have
        to consider.

        MS. RAYNOR:               And, Judge, I know that I
        discussed it just before Dr. Harris went on, and certainly
        he was aware of it because he goes, “I’m not supposed to
        say anything,” and I said, “Right.” So I’m sure I would
        have covered it, and I never−I’m sure I covered it.

(Id. at 111-120; R.R. at 940a-942a) (emphasis added). The court resumed

the trial, and Dr. Kelly continued his direct testimony, he was cross-

examined, and his testimony concluded.

     The next morning, June 1, 2012, the court held an in camera

conference to obtain counsels’ thoughts on how to advance the case.

Plaintiff’s counsel proceeded to excoriate Ms. Raynor, claiming her question

                                   - 16 -
J-A17045-15


to Dr. Kelly about “cardiac risk factors” was at least reckless, if not

intentional, as it posed an open-ended question. Plaintiff’s counsel took the

position that the statements of Dr. Kelly and Ms. Raynor “directly conflicted”

so Ms. Raynor “lied to the [c]ourt.” (N.T. Trial #1, 6/1/12 A.M. Session, at

14; R.R. at 998a). Following this comment, Plaintiff’s counsel repeated he

had heard secondhand “that a number of jurors perked up, wrote things

immediately, and perhaps were whispering to each other about it.” 6 (Id. at

16; R.R. at 998a). Counsel then asked for a mistrial. Short of a mistrial,

Plaintiff’s counsel suggested other sanctions such as (1) striking Dr. Kelly as

a witness and telling the jury why he was stricken; (2) striking Dr. Geller’s

entire defense and articulating to the jury why the defense was stricken; (3)

disqualifying Ms. Raynor as counsel pending further hearing on sanctions

and her conduct in the case and telling the jury why she was disqualified;

(4) costs and fees levied against Ms. Raynor and her client for the conduct;

and (5) some curative instruction to the jury indicating what happened and

how it was inappropriate, a violation of the court’s order, and the jury should

not consider the testimony and the evidence. (Id. at 17-18; R.R. at 999a).

Plaintiff’s counsel also requested a separate hearing on sanctions, based on

the “pretty clear record of what happened yesterday and what Ms. Raynor

did or didn’t do and what her witness says he was or wasn’t told.” (Id. at

____________________________________________


6
    This statement was not confirmed or verified.



                                          - 17 -
J-A17045-15


23; R.R. at 1000a).

      Ms. Raynor responded essentially that her question to Dr. Kelly about

cardiac risk factors was completely in the context of decedent’s emergency

room treatment, and Dr. Kelly’s response was totally unexpected.            Ms.

Raynor insisted she had covered the smoking ban extensively with each of

her witnesses. She tried to explain how Dr. Kelly does not testify every day

and under the stress of trial, it just came out. The court said:

         COURT:                    I mean he didn’t say to me,
         “Oh, she told me that, but I didn’t mean it.” I−you know,
         I was looking for him to say, “Uh-oh, I made a mistake,
         Judge. That was me.” That’s what I was kind of looking
         for when I heard him and asked him that. And I don’t
         know−


         MS. RAYNOR:                 And that’s−

         COURT:                     I’ll tell you the truth. I was
         hoping that’s what he would have said versus, “No, she
         didn’t tell me anything.” Because it’s the responsibility of
         the attorney to follow orders.

                         And I said this before: I don’t know if it’s
         intentional because I have no reason to believe you
         intentionally told him to bring it up or planned it like a plot,
         God forbid.

         MS. RAYNOR:                 Of course not.

         COURT:                     But, you know, omission and
         failure to do what you’re supposed to do is wrong also. I
         mean, I don’t say any of these doctors in the case, I hope,
         you know, deliberately didn’t notify [Ms.] Wilson about
         what they knew or should have known or could have
         known. It’s negligent. I mean, it is a problem if that’s
         what happened.


                                     - 18 -
J-A17045-15


       MS. RAYNOR:                 No.    And I even know the
       language that I used. I said the judge isn’t allowing us to
       talk about smoking. We have to use the word “social
       habits” or the judge−“we’re not allowed to.” “Allowed” is
       the word that I used. And I said, “We’re not allowed to
       refer to it. We’re not allowed to put records in. We’ve had
       to redact from the records things that indicate smoking.”

                      Did I show him the [c]ourt order and say,
       “Here is what the Judge said”?      No, and I wouldn’t
       routinely do that.

                      But I said to him, “You are not allowed to
       talk about smoking.” I thought that was clear. And, in
       fact, that’s what he told me afterwards, at the end of the
       day. He said, “I just slipped up,” I think, were his words.
       And I invite you to call him if you want to talk to him. And
       apparently−

       COURT:                  Listen, I have no doubt we can
       do more of an in-depth whatever, but I’m not getting to
       that point.

       MS. RAYNOR:                And Dr. Geller actually ran into
       him on a street corner as they were leaving the courthouse
       yesterday. And Dr. Kelly made the same comments to
       him, which is why he wanted to−Dr. Geller has offered, he
       wants to tell you−

       COURT:                   Well, if we get to that point and
       I choose to ask Dr. Geller, I will do that. I’m sure he
       would be honest about it, I hope. But I’m not at that
       point.
                    Let’s move on.

       MS. RAYNOR:                 Your Honor to be assured that it
       was not−first of all, it wasn’t intentional. Second of all, it
       was not an omission. I thought that I expressed myself
       very clearly by using the language, “You’re not allowed to
       use the word ‘smoking.’ You’re not allowed to talk about
       it.”

                                *     *      *


                                    - 19 -
J-A17045-15


                          Mr. Messa has made a very inflammatory
         allegation that I lied to this [c]ourt. I absolutely did not lie
         to this [c]ourt.

(Id. at 32-36; R.R. at 1003a-1004a). Defense counsel asked the court to

rule immediately and not take Plaintiff’s request for a mistrial under

advisement until after the verdict, as Plaintiff’s counsel requested, because

that would invite mischief.

      On June 4, 2012, the court resumed its conference with counsel

outside the jury’s presence. Plaintiff’s counsel renewed their request for a

mistrial on the grounds that Dr. Kelly’s testimony violated the smoking

preclusion order and irreparably prejudiced Plaintiff’s case.       Counsel also

renewed their request for alternative sanctions in lieu of a mistrial. Counsel

asked for additional sanctions against Ms. Raynor under the ethical rules

governing candor to the court citing the record of May 31, 2012, which

counsel characterized as demonstrating a clear conflict between Ms. Raynor

and Dr. Kelly on whether Ms. Raynor had instructed him about the smoking

ban. After a short recess, the court said:

         The court has reflected upon the arguments of counsel, the
         applicable cases that were submitted to the extent that
         they’re applicable, and it’s probably a difficult decision for
         me in many ways, you know, but I said this before. You
         do the best you can and you rely upon your best judgment
         and experience as well as what you’re to be guided by in
         knowing what’s happened in this trial and what has
         transpired in this trial, and all that’s before the court. And
         I think in a sense, even though I’m guided so much by
         your arguments and your feelings in it, I as the trial judge
         believe that I am in the best position to make the final
         decision, and it is my job to make the final decision.

                                     - 20 -
J-A17045-15



          So based upon all that’s before me, I am going to deny the
          plaintiff’s motion for a mistrial.

(N.T. Trial #1, 6/4/12 Morning Session, at 14; R.R. at 1034a). With all

counsels’ input, the court then reviewed a proposed curative instruction to

give to the jury as trial resumed.

       When the jury was brought back into the courtroom, the court issued

the curative instruction as follows:

          Lung cancer can be caused by many things. This case is
          not about its causes. The cause of Ms. Wilson’s specific
          type of lung cancer is not known. Further, smoking should
          not be considered in this case.      Whatever may have
          caused the lung cancer has nothing to do with the issues of
          whether the defendants breached their standard of care
          and caused the harm suffered by Rosalind Wilson. It has
          nothing to do with the issues you are considering in this
          case.

          For that reason before I started this trial I ordered and the
          parties agreed that no party was allowed to discuss any
          potential reason for the cause of [Ms.] Wilson’s lung
          cancer. I instructed all counsel to advise their witnesses of
          the [c]ourt’s order before taking the stand.[7]          Last
          Thursday afternoon Dr. Geller and REPA violated the
          [c]ourt’s order through testimony introduced from Dr.
          Kelly. You are instructed to disregard that portion of Dr.
          Kelly’s testimony because it is irrelevant and misleading.

          I am instructing you that you are to consider in your
          deliberations only: one, whether the defendants breached
          the standard of care by failing to advise [Ms.]. Wilson, her
          family, or her family physician about the nodule on her
          lung; two, whether any such failure increased the harm to
____________________________________________


7
 The court’s statement is not exactly accurate, in terms of what counsel was
obligated to do versus what the court hoped counsel would do.



                                          - 21 -
J-A17045-15


          [Ms.] Wilson, or decreased her chance of survival; and
          three, the amount of damages caused by any such failure.

          And I am asking you to follow these instructions as I am
          giving them to you, and that’s your sworn duty as jurors in
          this case. So thank you up to now for your time and
          attention, and you have to hear all the evidence, however,
          and that’s going to continue now with the next witness for
          the defense.

(Id. at 29-30; R.R. at 1049a-1050a). The trial resumed.

       On June 8, 2012, the jury found in favor of Plaintiff and awarded her

$190,000.00.      The jury found Tenet HealthSystem Roxborough, LLC d/b/a

Roxborough Memorial Hospital 50% liable and Melanio Aguirre, M.D. 50%

liable for the negligent care of Plaintiff.        The damages were apportioned

$100,000.00 for the survival action and $90,000.00 for the wrongful death

action.   The jury found no liability with regard to any other defendant. 8

(Verdict Sheet, 6/8/12; R.R. at 1120a-1125a).            This verdict was initially

entered on the docket on June 14, 2012.

       Plaintiff timely filed a motion for post-trial relief on June 18, 2012, and

requested a new trial because (1) the court erred in denying Plaintiff’s

motion for a mistrial based on Dr. Kelly’s violation of the smoking preclusion

order and/or (2) the “grossly inadequate” verdict. Plaintiff further moved for

“an award of sanctions jointly and severally against Dr. Geller and his

counsel, Ms. Raynor and her firm, for Plaintiff’s costs including attorneys’
____________________________________________


8
  The jury was not polled regarding what effect, if any, the decedent’s
smoking history had on the verdict.



                                          - 22 -
J-A17045-15


fees incurred in preparing for and attending trial, in light of the need for a

new trial caused by their introduction of evidence of smoking in violation of

the [c]ourt’s orders.”   Alternatively, Plaintiff asked the court to enter the

sanctions award jointly and severally as well against Dr. Geller’s expert, Dr.

Kelly, for his role in the introduction of the precluded testimony.        (See

Plaintiff’s Motion for Post-Trial Relief, 6/18/12, at 1-38; R.R. at 1126a-

1163a.)

      Ms. Raynor filed an answer in opposition to the post-trial motion on

June 28, 2012. On October 22, 2012, the court granted Plaintiff’s motion for

a new trial but deferred ruling on the companion contempt/sanctions motion.

Defendants timely filed their notices of appeal. The trial court later molded

the verdict on January 8, 2013, to include delay damages for a total verdict

of $205,353.56.

      In its opinion, the court stated that its decision to grant Plaintiff a new

trial was not based on the inadequacy of the jury verdict. Instead, the trial

court insisted it had ordered the new trial “solely for reason that its Pre-Trial

Order precluding the mentioning of decedent’s smoking history was violated,

resulting in unfair prejudice to the plaintiff and therefore failed to allow her

to have a fair trial on the merits.” (See Trial Court Opinion, filed May 28,

2013, at 4; R.R. at 1633a.) After acknowledging Plaintiff’s counsels’ failure

to object or request a mistrial immediately upon the errant testimony, the

court recognized their bid for a sidebar, in which they raised the issue of a


                                     - 23 -
J-A17045-15


mistrial, as the essential contemporaneous objection and call for relief. (Id.

at 6; R.R. at 1635a). The trial court continued:

         Upon reflection, this [c]ourt does not agree with
         Appellant/Defendants that the…curative instruction was
         enough to cure the prejudice resulting from defendant’s
         violation of this [c]ourt’s preclusion Order. This [c]ourt at
         the time it rendered its decision not to grant a mistrial
         determined that only a strongly worded instruction to the
         jury could cure the violation of this [c]ourt’s Pre-[Trial]
         Order banning the mentioning of decedent’s smoking
         history. However, as will be discussed below, this [c]ourt,
         after reflection and due consideration, does not believe
         that even a strongly worded curative instruction such as
         the one given to the jury in the instant matter could have
         cured the prejudicial effect that was created when they
         were told that Plaintiff’s decedent was in fact a smoker. As
         some legal minds have proffered, a curative instruction
         may unfortunately sometimes serve to highlight to the jury
         a fact (decedent was a smoker) that the [c]ourt was
         attempting to eradicate from their collective memory and
         thought process. In addition, as will be discussed below, it
         is this [c]ourt’s determination that in a failure to warn
         medical malpractice matter involving a death from lung
         cancer, advising the jury that decedent was a smoker,
         when all parties agreed prior to trial to ban decedent’s
         smoking history, is so egregious that there can be no cure
         to the resulting prejudice, other than a New Trial. …

                                 *     *      *

         [T]his response was to a question posed concerning
         cardiac risk factors not lung cancer risk factors. However,
         this does not change the prejudicial effect on [P]laintiff’s
         case. The jurors now had knowledge that despite the
         overwhelming evidence that smoking causes cancer,
         [P]laintiff’s decedent decided to smoke and died from lung
         cancer.

         This [c]ourt entered an Order with the agreement of all
         counsel (Defendants included) that [decedent’s] smoking
         habits were prohibited from being mentioned during the
         trial due to the reality that jurors may hold [decedent]

                                     - 24 -
J-A17045-15


       accountable to some extent for her developing her own
       lung cancer. As all counsel agreed, none of the defendants
       that remained in the case when trial commenced had any
       meaningful or relevant interest in advising the jury that
       Plaintiff was a smoker. Therefore, the fact that [decedent]
       was a smoker had absolutely no probative value and could
       serve only to severely prejudice Plaintiff’s claims before
       the jury. As such, for Defendants to now argue that a
       single utterance of the word smoking was not so
       prejudicial so as to prevent Plaintiff from a fair trial is not
       meritorious. The jurors did not simply hear the word
       “smoking,” but were told that decedent herself smoked
       and that it was a big risk factor, albeit in the context of
       cardiac issues.

                                *     *      *

       In the instant matter, this [c]ourt’s Pre-Trial Order
       precluding the mentioning of decedent’s smoking history
       was based upon its potential to seriously prejudice and
       undermine Plaintiff’s case.         Further, and just as
       importantly, advising the jury that [decedent] smoked had
       absolutely no probative value. This trial was in its eighth
       (8th) day when the violation occurred, this [c]ourt in
       addressing the mistrial issue, gave great weight to the fact
       that all parties, but in particular Plaintiff, had already
       expended a great amount of time and expense.               In
       addition, this [c]ourt was acutely aware of the toll the trial
       was taking on Plaintiff’s family, many of whom were at trial
       every day, as well as its toll on the Defendants
       themselves. As such, this [c]ourt, with heavy hesitation,
       decided to give the jury a strongly worded curative
       instruction.

       Upon great reflection, it is this [c]ourt’s determination that
       in the case at bar, a curative instruction would not serve to
       insure that Plaintiff was given a fair trial, unblemished by
       the prejudice that resulted from Defendant Dr. Geller’s
       violation of this [c]ourt’s Pre-Trial Order. The PA Rules of
       Civil Procedure require the filing of Post-Trial motions so as
       to help formulate any issues for possible appeal, but also
       to permit the trial court to reflect upon what occurred
       during trial, and if necessary, enter an Order that will in
       effect clear up any errors that occurred during trial. It is

                                    - 25 -
J-A17045-15


          upon this reflection that this [c]ourt entered its Order
          Granting [Plaintiff’s] Post-trial Motion for a New Trial.

(Id. at 10-14; R.R. at 1639a-1643a).         On November 4, 2013, this Court

affirmed the trial court’s decision to grant a new trial.       See Sutch v.

Roxborough      Memorial    Hospital,   91     A.3d   1273   (Pa.Super.   2013)

(unpublished memorandum).

      Subsequently, on March 11, 2014, the trial court ordered a hearing on

Plaintiff’s motion for contempt/sanctions, limited to issues concerning

whether sanctions should be imposed. The order stated, “Any evidence with

regard to the type of sanctions to be imposed, monetary or otherwise will be

held under advisement pending the scheduling of a subsequent hearing if

necessary.”   (See Trial Court Order, filed March 11, 2014, at 1; R.R. at

1766a.)   On March 14, 2014, Ms. Raynor filed a motion to determine the

nature of the sanctions sought by Plaintiff. Plaintiff’s counsel responded and

specified costs and fees under 42 Pa.C.S.A. § 2503(7) for dilatory, obdurate,

or vexatious conduct; civil contempt; and direct criminal contempt.

      The first contempt hearing began on March 27, 2014, with a review by

the court of the procedural history that led to the current proceedings,

followed by the introduction of all counsel, followed by the court’s

announcement that the contempt/sanctions hearing would be bifurcated,

with the initial hearing intended to settle whether sanctions were even

warranted.    Plaintiff’s counsel, Mr. Messa, under the auspices of “candor,”

first addressed the court concerning a document he had in his possession.

                                    - 26 -
J-A17045-15


The paper purportedly contained a “note” Dr. Kelly had made when

documenting a telephone conversation with Dr. Geller’s current counsel,

Judy Packett, Esquire.      Plaintiff’s counsel represented the note to suggest

there was some collusion between the court and Plaintiff’s counsel.        Mr.

Messa displayed his outrage over what he had interpreted to be the note’s

suggestion and insisted this matter should be brought to the court’s

attention before Dr. Kelly took the stand and was cross-examined about his

note. The trial court wisely observed that it did not consider the notation

relevant to the present proceedings, stating: “I don’t know that that’s

relevant at all because in terms of it if someone’s handwritten notes about

whatever they feel they want to write on a piece of paper[;] that’s on them.”

(N.T. Hearing, 3/27/12, at 15; R.R. at 1785a).         The court also astutely

remarked that it was a little confused by Mr. Messa’s approach and did not

want to set a bad tone on the hearing. (Id.) The court said: “I mean the

question is and the issues now are did [Ms. Raynor] inform [Dr. Kelly] of the

pretrial order.   Was the pretrial order discussed in the preparation of his

testimony, was he warned not to bring that up, etc.        As far as any other

things I’m not looking at them.      I mean anybody has any issues, anyone

makes any accusations, whatever, let them make it because there’s nothing

else in this case at all.   The issue of sanctions would only come up if this

court decided that there was an appropriate discussion with the witness prior

to and in violation of pretrial orders which caused the mistrial in this case.”


                                      - 27 -
J-A17045-15


(Id. at 16; R.R. at 1785a).9 The court recollected there had been efforts to

settle the matter, which involved talks with Plaintiff’s counsel and defense

counsel, but the court noted nothing inappropriate from the standpoint of

the court or Plaintiff’s counsel.        (Id. at 17; R.R. at 1786a).   The court

assured counsel that the court was not personally offended and could rule

fairly. The court also clarified that Plaintiff’s counsel was proceeding against

Ms. Raynor in civil contempt for compensatory damages and under 42

Pa.C.S.A. § 2503(7) (counsel fees as a sanction for dilatory, vexatious, and

obdurate behavior).        Finally, the court announced it had no intention of

taking up the matter as a criminal proceeding for criminal contempt.

       Following these introductory remarks by the court and Plaintiff’s

counsel, Plaintiff’s counsel stated they would rely solely on the notes of

testimony from the first trial and would not be presenting any additional

evidence to support their motion for contempt/sanctions, arguing that the

transcripts speak for their case. Defense counsel objected to the use of Dr.

Kelly’s testimony as hearsay on several grounds: (1) Ms. Raynor was not a

party in the trial and (2) she had no opportunity to cross-examine Dr. Kelly.

Therefore, defense counsel submitted that Dr. Kelly’s responses to the

court’s inquiries during the first trial could not be used against Ms. Raynor in

the present contempt/sanctions proceeding.
____________________________________________


9
  There actually was no mistrial; instead, the court granted Plaintiff’s post-
verdict motion for a new trial.



                                          - 28 -
J-A17045-15


        Plaintiff’s counsel repeated their position that the transcripts from the

first trial were all they had and all they needed to prove contempt against

Ms. Raynor, her firm, the hospital, Dr. Geller, and Dr. Kelly.            Plaintiff’s

counsel insisted the current hearing was just for defendants to come in and

have an opportunity to present testimony:

           [Plaintiff’s Counsel] MR. D’ANNUNZIO: … In terms of the
           record Dr. Kelly’s conduct occurred in front of the court.
           This hearing is just for them to come in and have an
           opportunity to present any testimony they would like. Ms.
           Raynor is an officer of the court and is subject to the
           powers of the court. Dr. Kelly [is] a [participant], Dr.
           Geller is a participant[; they] are all subject to the court’s
           inherent power to enforce its orders. It occurred in front
           of the court.     Dr. Kelly’s comments are not hearsay.
           They’re obdurate acts. They’re also when he says I was
           not told that’s not a hearsay statement. It’s a fact. …

(Id. at 27-37; R.R. at 1788a-1791a).10

        Ms. Raynor’s counsel argued that the transcript from the first trial was

insufficient to carry Plaintiff’s initial burden on contempt, because Dr. Kelly’s

responses to the court’s impromptu inquiries at the first trial were wholly

neutral and did not prove or disprove anything other than Dr. Kelly’s lack of

memory. In addition, defense counsel continued:

           DEFENSE COUNSEL:            … Let [me] point out to the
           court that one of the things about this record and even if
           the court were to accept or admit the statement by Dr.
           Kelly and statements by Dr. Kelly in response to the
           court’s questions, which is really inadmissible…because of
           the hearsay, what you have is a record which is conflicting
____________________________________________


10
     This description is characteristically used for criminal contempt.



                                          - 29 -
J-A17045-15


       and the plaintiff [has] presented that evidence and it
       conflicts. That is, that Dr. Kelly says he doesn’t remember
       being told and Nancy Raynor says in her statements that
       she told him. So at this point the court has no ability to
       find that [P]laintiff has sustained her burden with respect
       to these issues on either [Section] 2503 or the civil
       contempt.

                       Let me point out to the court there’s a
       number of things. First of all, this court order, in order to
       find civil contempt the court has to find that in fact my
       client actually violated a court order. [There is ] no order
       of the court which says that Ms. Raynor is to specifically
       tell any witness anything at all. All it says or what it says
       is that there’s no evidence that’s admissible relating to
       smoking or that [decedent] has smoking history, I believe
       it used the term smoking history, the order does not
       compel Nancy Raynor to do anything with respect to the
       evidence except obviously she couldn’t intentionally elicit
       that evidence or ask a question did [decedent] have a
       smoking history. As the court realize[s] the question
       posed by Ms. Raynor did not use the term smoking, did not
       use the phrase smoking history and there was no objection
       to the question which [she] posed during the trial. The
       objection came only after with respect to the response that
       was given. So that there is no basis on which to find
       [contempt]…that Ms. Raynor violated the terms of that
       court order and that is necessary in order for the court to
       proceed with a civil contempt proceeding for the plaintiff to
       sustain [her] burden with respect to the issue.

                     Ms. Raynor is not the person who
       mentioned smoking. So accordingly she’s not the person
       who can be in violation of this order.

       COURT:                     I’m not arguing with you on this
       point. What I’m saying is he’s resting on the record. Now
       it’s your chance to argue that point.

       DEFENSE COUNSEL:           I am arguing that point. I’m
       arguing the point before I have to put on evidence because
       he has to sustain his burden first.

       COURT:                     I understand that.      I’m just

                                  - 30 -
J-A17045-15


        going to read through this then maybe you won’t have to
        put on evidence but maybe you will.

                                 *     *      *

                       … I want to hear from Dr. Kelly if he has
        any other testimony to give.

(Id. at 39-42; R.R. at 1791a-1792a).          Counsel noted to the court that

Plaintiff had already rested, which the court affirmed. A brief recess ensued

and then this exchange occurred:

        COURT:                      We always try to give everybody
        their chance to say what they need to say. I need to look
        over the trial testimony and plaintiff rested and all the
        other motions by the defense. I did review it. I’m going
        to accept it as it is on the record. Nobody is changing it,
        that’s what it is. I’m going to give the defense a chance
        now to present testimony or not present testimony with
        regards to sanctions in this case.

                                 *     *      *

        DEFENSE COUNSEL:     I need to obtain a ruling from
        the court about whether Dr. Kelly’s testimony is
        admissible.

        COURT:                       That record is admissible.

        DEFENSE COUNSEL:             I’m asking specifically about the
        reference.

        COURT:                       That is admissible.   The whole
        trial transcript.

        DEFENSE COUNSEL:           What I need to learn from the
        court is my objection to Dr. Kelly’s testimony.

        COURT:                       I noted your objection.      Let’s
        go.

        DEFENSE COUNSEL:             Because it’s absolutely hearsay.

                                     - 31 -
J-A17045-15


       We did not have an opportunity to cross-examine the
       testimony. My client was not a party to the action and so
       therefore─

       COURT:                     You may appeal that ruling at
       the appropriate time and you may win on that regard or
       not but we’re here to hear from your client or not.

       DEFENSE COUNSEL:           No, we’re not here to hear from
       my client, Your Honor.

       COURT:                     You’re asked not to put on
       testimony or not.

       DEFENSE COUNSEL:             I have to finish, if I may, Your
       Honor. I have a motion that [P]laintiff has not sustained
       [her] burden, cannot sustain [her] burden with respect to
       either [] source of sanction as she is pursuing, [Section]
       2503,[she] hasn’t proven my client did anything wrong as
       well with respect to that. And also civil contempt. Civil
       contempt requires that she has violated a court order.
       There’s no proof of that. What you have is this transcript
       which establishes, because of Ms. Raynor’s statement
       found on page 117, Dr. Kelly and I have had a number of
       discussions and I certainly did advise that we had this
       issue in the case that we’re not to refer to smoking. So
       that establishes Ms. Raynor’s [compliance] with the order.
       This is evidence [P]laintiff presented and not otherwise.

       MR. D’ANNUNZIO:            Now       he’s     asking      for
       reconsideration.

       DEFENSE COUNSEL:           You’re not going to talk to me.

       COURT:                    Don’t    talk  to   him     Mr.
       D’Annunzio, he’s right. But I don’t know what else to tell
       him. I made a ruling. Your request is denied. Your
       motion, whatever motions you’re making, whatever
       request is denied. We're moving on to whatever you have.

       DEFENSE COUNSEL:         Can I put the grounds, the
       balance of the grounds for the motion on so we have a
       complete record[?]


                                  - 32 -
J-A17045-15


       COURT:                       Sure.

       DEFENSE COUNSEL:          Your Honor, that the civil
       contempt is not appropriate because two things. First of
       all, the argument of the order which we’re dealing with I
       understand to be the order of May 16, 2012 is that─

       COURT:                       I don’t have the date.        I’ll
       accept it.

                                *     *      *

       DEFENSE COUNSEL:            I just want to make sure that
       this is the order that we’re addressing. The order does not
       include any order by the court for Ms. Raynor to take any
       action with respect to that order. So that in order to have
       contempt she must not have followed the order or
       complied with the order. Ms. Raynor is not required by
       this order to do anything so therefore, and she’s not the
       person who mentioned smoking.            She did not [use]
       smoking in her question and she did not provide argument
       about smoking. She did not use that term so for that
       reason [she] is not in violation of any order.

       In addition she cannot be found liable for the statement
       I’m talking about criminal contempt for─

       COURT:                     No criminal case.       We’re not
       talking about a criminal case.

       DEFENSE COUNSEL:             I understand, civil for the
       statement for the testimony provided by Dr. Kelly because
       there’s no vicarious liability for civil contempt or any form
       of contempt. Also there is not a basis for vicarious liability
       for [S]ection 2503 liability. So the statement by the
       witness is not attributable, cannot be attributable to Ms.
       Raynor and her law firm cannot be liable for a statement
       by Dr. Kelly or testimony by Dr. Kelly.

                       In addition [P]laintiff’s evidence does not
       establish obdurate or vexatious behavior as the court
       realizes that information that is─ that there’s no conduct
       by Ms. Raynor which is established by the trial transcript
       which would suggest that she was in any way acting in

                                    - 33 -
J-A17045-15


       some obdurate or vexatious [manner] or for purposes to
       vex [P]laintiff. So for that reason, Your Honor, the 2503
       section sanctions should be dismissed.

                      And then with respect to… civil contempt is
       for the purpose of compelling actual compliance of a then
       existing order. … So the civil contempt sanction request
       should be denied also and at this point should be
       dismissed because of the failure to sustain their burden.

       COURT:              At this stage I’m not dismissing
       anything other than the criminal proceeding. The court is
       not proceeding in any way [with] the criminal proceedings
       of contempt. We’re moving on. You have any other
       testimony or evidence?

       DEFENSE COUNSEL:            I do. Does the court credit my
       client’s statement in the record?

       COURT:                       The record is accepted as given.
       It’s in the evidence for [P]laintiff.

                                *     *      *

       DEFENSE COUNSEL:          …what I’m asking is does the
       court credit that Ms. Raynor told Dr. Kelly that she had a
       number of discussions and advised him about that he was
       not to refer to smoking?

       COURT:                       Is that in the record?

       DEFENSE COUNSEL:             Yes.

       COURT:                       Then that’s her statement.

       DEFENSE COUNSEL:             What I’m asking is whether the
       court credits that as a valid statement.

       COURT:                    It’s credited. I’m taking that
       into consideration. Everything that is in the record is
       taken into consideration. And now I’m here to hear any
       further testimony. They rested, and from the defendant if
       you would like to add anything else then I'm going to try
       to make a very fair decision based on everything that I

                                    - 34 -
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             have before me. If l’m taking into consideration something
             that you feel I should not be doing you may want to appeal
             this later if it’s adverse to you, the decision may not be
             adverse to you.

(Id. at 43-50; R.R. at 1792a-1794a).

      Upon the court’s decision to overrule defense counsel’s objections

based on the content of the order at issue, the inadmissibility of Dr. Kelly’s

May 31, 2012 limited testimony regarding the smoking ban, and the

insufficiency of Plaintiff’s offer of proof, testimony for the defense began.

The defense initially presented testimony from Ronald Stu Moore, Dr. Geller,

and Dr. Harris (by stipulation). Mr. Moore swore that Ms. Raynor had told

Dr. Kelly about the smoking ban and was surprised when Dr. Kelly did not

recall, which had to have been a mistake. Mr. Moore understood how Ms.

Raynor did not argue that with the judge at the time. Dr. Kelly appeared

completely rattled by his error. The testimony of Dr. Geller related to the

same conversation they had all participated in with Dr. Kelly before his

testimony on May 31, 2012.          Both Mr. Moore and Dr. Geller specifically

recalled Ms. Raynor reminding Dr. Kelly during the conversation that he was

not to discuss decedent’s smoking history during the trial testimony.      Dr.

Geller further testified he had “commiserated” with Dr. Kelly on the

unfairness of the preclusion in the courtroom hallway before Dr. Kelly

testified.     Dr. Geller also stated he was aghast when he heard Dr. Kelly

mention at trial that decedent was a smoker. According to Dr. Geller, Dr.

Kelly appeared flustered and upset with himself over his testimonial misstep,

                                       - 35 -
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when he apologized to Dr. Geller and Ms. Raynor.           Dr. Geller’s overall

impression was that Dr. Kelly mentioned smoking accidentally in the context

of cardiac risk factors as if he had mentally slipped into a routine lecture to

medical students.    Dr. Geller made clear his treatment of decedent was

primarily centered on heart issues, given her presenting complaints, which

was how the issue of “cardiac risk factors” came into focus at trial.

      Dr. Harris’ testimony was presented to the court by stipulation of all

parties.   Dr. Harris confirmed that, on several occasions throughout the

pretrial preparation: (1) Ms. Raynor had informed him of the existence of a

court order prohibiting any reference to smoking at trial; (2) she had

discussed with Dr. Harris the reason the medical records were being

redacted; (3) in the days leading up to Dr. Harris’ trial testimony, Ms.

Raynor made it clear to him the order prohibiting any reference to smoking

was a serious and important ruling in the case; and (4) on the morning he

testified, Ms. Raynor once again reminded him of the court order and the

fact that he could not use the word “smoking” in his testimony.

      The contempt hearing resumed on March 31, 2014, with Ms. Raynor’s

testimony, in which she repeated her previous position to the court about

the multiple pretrial conversations she had had with Dr. Kelly, which

included warnings regarding the smoking preclusion.             Her testimony

emphasized the “interactive” quality of these discussions, by which she

confirmed Dr. Kelly knew and understood the discussions. She also outlined


                                     - 36 -
J-A17045-15


her usual and customary practice with regard to preparing her witnesses in

medical malpractice cases. Ms. Raynor referred to other instances where Dr.

Kelly demonstrated in his testimony at trial how he did not recall something

she had just discussed with him, for example, the preliminary and final x-ray

reports. Ms. Raynor denied she had ever told or suggested to Dr. Kelly to

mention smoking or had any intention to cause a mistrial. She also gave her

rationale for questioning Dr. Kelly on “cardiac risk factors.” Ms. Raynor said

she truly believed Dr. Kelly simply made an honest mistake; he failed to

remember that she had warned him, which does not automatically mean she

failed to warn him.     In fact, she gave Dr. Kelly the warning against the

mention of decedent’s smoking history as a global, across-the-board,

blanket prohibition on any use of the word “smoking.”

      Dr. Kelly also testified at the sanctions hearing on March 31, 2014. He

stated he did not remember if Ms. Raynor had informed him of the

smoking preclusion order. Dr. Kelly said he believed Ms. Raynor was truthful

in her statement to the court that she had previously discussed the smoking

ban with him.    Additionally, Dr. Kelly testified he had discarded all of his

notes from trial. Importantly, at this time, Dr. Kelly was also a defendant in

Plaintiff’s motion for sanctions.

      Following the parties’ submission of proposed findings of fact and

conclusions of law, the court issued an order dated May 2, 2014, and filed on

May 5, 2014, that imposed sanctions against only Ms. Raynor in an amount


                                    - 37 -
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“to be determined.” The court’s order is as follows:

                                   ORDER

        AND NOW, this [2nd] day of [May] 2014, upon
        consideration of Plaintiff’s Motion for Post-Trial Relief in the
        nature of Sanctions against non-parties John J. Kelly, D.O.,
        Nancy Raynor, Esquire, and Raynor & Associates, LLC, and
        against Defendants Jeffrey Geller, M.D. and Roxborough
        Emergency Physician Associates, LLC, and after hearings
        on March 27, 2014 and March 31, 2014 and upon
        consideration of the submissions by the parties and non-
        party representatives of Findings of Fact and Conclusions
        of Law, it is hereby ORDERED and DECREED that this
        [c]ourt makes the following findings :

           1)    That this [c]ourt entered a Pre-Trial Order dated
           May 16, 2012 which precluded the Defendants from
           presenting any evidence, testimony, and/or argument
           regarding decedent’s smoking history.

           2)    That this [c]ourt, during trial and prior to
           witnesses taking the stand, admonished all Counsel to
           remind their witnesses of this [c]ourt’s Order,
           precluding any reference to the decedent’s smoking
           history.

           3)    That during trial, Defendant, Jeffrey Geller, M.D.
           called John J. Kelly, D.O. as an expert witness to testify
           on his behalf.

           4)    That Dr. Kelly, in response to a question posited
           to him by Defendant Geller’s attorney, Nancy Raynor,
           Esquire, testified in front of the jury that decedent had
           been a smoker.

           5)    That Dr. Kelly testified credibly before this [c]ourt
           during both his colloquy with this [c]ourt immediately
           following his testimony in the underlying case and
           during the sanctions hearing of March 31, 2014,
           regarding the content of conversations that took place
           between him and Nancy Raynor, Esquire.

           6)    That Nancy Raynor, Esquire violated this [c]ourt’s

                                    - 38 -
J-A17045-15


            Order in that she failed to so advise Dr. Kelly of this
            [c]ourt’s preclusion Order and/or failed to follow this
            [c]ourt’s clear instructions by failing to remind Dr. Kelly
            just prior to his taking the stand as to this [c]ourt’s
            Order precluding any reference to decedent's smoking
            history.

            7)   That Nancy Raynor, Esquire violated this [c]ourt’s
            Order precluding the presentation of any evidence of
            decedent's smoking history.

            8)    That as a result of Ms. Raynor’s violation of this
            [c]ourt’s preclusion Order, this [c]ourt entered an Order
            dated October 19, 2012, granting [P]laintiff’s Post-Trial
            Motion for a New Trial.

            9)    That Plaintiff and her counsel were caused to
            expend time and money preparing and trying this case
            which resulted in the granting of a mistrial all to their
            detriment in that they will have to now retry this case.

            10) That due to Ms. Raynor’s violation of this [c]ourt’s
            preclusion Order, Plaintiff and her [c]ounsel have
            suffered monetary losses in the nature of counsel fees,
            costs and expenses.

         It is therefore ORDERED and DECREED that Sanctions shall
         be imposed upon Nancy Raynor, Esquire, only, in an
         amount to be determined by this [c]ourt. Nancy Raynor,
         Esquire is given twenty (20) days leave of court to file a
         response challenging the amounts set forth in the
         Plaintiff’s brief and supporting documentation regarding
         Plaintiff’s claim for attorney fees, costs and expenses.

(Contempt/Sanctions Order, filed May 5, 2014, at 1-2; R.R. at 2039a-

2040a). In Plaintiff’s supporting brief, Plaintiff had requested payment for all

of Plaintiff’s attorneys’ hourly fees associated with the first trial, totaling

$1,349,063.67 in proposed sanctions. On May 27, 2014, Ms. Raynor filed a

brief disputing the amount of proposed sanctions and requested an


                                     - 39 -
J-A17045-15


evidentiary hearing.

      Without any hearing on the reasonableness of the sanctions, the court

awarded Plaintiff’s counsel a total of $946,195.16 in attorneys’ fees and

expenses on November 4, 2014.          The court awarded $615,349.50 to

Plaintiff’s lawyers from Klehr Harrison and $160,612.50 to her lawyers from

Messa and Associates.     The court also awarded $170,235.16 to Plaintiff

herself for “actual expenses.” The court did not explain in its November 4,

2014 order how these fees/expenses were appropriate or correct.           Ms.

Raynor timely appealed the November 4, 2014 order for contempt and

sanctions.

      Meanwhile, on November 6, 2014, the second trial in Plaintiff’s medical

malpractice case concluded with the entry of a new jury verdict in favor of

Plaintiff; this time the verdict was against defendants Roxborough Memorial

Hospital, Jeffrey Geller, M.D., and Melanio Aguirre, M.D. The second verdict

was in the amount of $1,975,713.00.          Significantly, a different jurist

presided over the second trial, and the parties were permitted to refer to

decedent’s smoking history during the damages portion of the case.

      On November 26, 2014, the court ordered Ms. Raynor to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Ms. Raynor timely complied on December 17, 2014. On January 5, 2015,

Ms. Raynor filed a motion to stay Plaintiff’s execution on the sanctions

pending appeal. Plaintiff filed a praecipe for entry of judgment on January 8,


                                    - 40 -
J-A17045-15


2015, and the court entered judgment against Ms. Raynor on that date. On

January 15, 2015, the trial court granted Ms. Raynor a temporary stay of

execution pending a hearing scheduled for February 19, 2015. This order,

however, did not dissolve the attachments entered against Ms. Raynor’s

assets. Ms. Raynor filed an emergency motion to dissolve the attachments

on January 22, 2015, stating the attachments essentially froze all of her

assets, which prevented her from paying the firm’s operating expenses or

her personal expenses.      The trial court denied Ms. Raynor’s motion to

dissolve the attachments in an order issued on January 23, 2015.             On

February 3, 2015, the court filed its opinion pursuant to Pa.R.A.P. 1925(a).

In its opinion, the court justified its rationale for the sanctions award in the

form of counsel fees associated with the first trial based on (a) the

complexity of the medical malpractice issue; (b) the “industry standard”

rates for the fourteen attorneys and two paralegals claimed to have worked

on the case; and (c) the necessity for extensive post-trial work. The court

gave no explanation for the “actual losses” it awarded directly to Plaintiff

except to state it was “a very emotional case for Plaintiff’s family.”    (See

Trial Court Opinion, filed February 3, 2015, at 24.)

      On February 10, 2015, Ms. Raynor filed an emergency application for

supersedeas with this Court to vacate the trial court’s orders and remand for

a hearing on newly discovered evidence from a critical fact witness. Plaintiff

answered on February 12, 2015, and Ms. Raynor filed a reply on February


                                     - 41 -
J-A17045-15


13, 2015. On February 18, 2015, this Court granted Ms. Raynor’s request to

remand for a hearing on her proposed newly discovered evidence in the

nature of testimony by a new witness, Joseph Chapman.          This Court also

stayed all existing execution and garnishment actions stemming from the

trial court’s sanctions.   This Court stayed all other proceedings in the trial

court, pending that court’s decision following the hearing on Ms. Raynor’s

proposed newly discovered evidence.

      On March 4 and March 10, 2015, the trial court held hearings on Ms.

Raynor’s proposed newly discovered evidence. At the hearings, Ms. Raynor

presented the testimony of Mr. Chapman, a trial technician for the defense

during the 2012 medical malpractice trial.      Mr. Chapman testified he was

present in the hallway during the lunch break on the day Dr. Kelly testified

and heard Ms. Raynor tell Dr. Kelly that smoking was out of the case. Mr.

Chapman also testified that he approached Ms. Raynor at the end of the day,

on May 31, 2012, after Dr. Kelly’s testimony, and told her he would be

willing to tell the court he had heard Ms. Raynor remind Dr. Kelly not to

mention smoking. Mr. Chapman, however, believed Ms. Raynor did not hear

him. More recently, after he had read about her case in the newspaper, Mr.

Chapman contacted Ms. Raynor on January 28, 2015, to inform her again

that he had heard her tell Dr. Kelly before his testimony on May 31, 2012,

that any mention of smoking was precluded at the 2012 trial.

      On April 24, 2015, the court issued an order and opinion, denying Ms.


                                      - 42 -
J-A17045-15


Raynor’s application for reconsideration of the sanctions order.      The court

stated it found Mr. Chapman’s testimony incredible and suspicious, due to

the timing of his disclosure and what the court believed were inconsistencies

in Mr. Chapman’s testimony.      The court concluded the testimony did not

qualify as “newly discovered” evidence because Mr. Chapman said he had

told Ms. Raynor, after Dr. Kelly testified on May 31, 2012, that Mr. Chapman

had overheard the earlier conversation between Ms. Raynor and Dr. Kelly

about the smoking preclusion. The court determined Ms. Raynor had access

to Mr. Chapman’s testimony well in advance of the imposition of sanctions,

so the evidence was not “newly discovered.”       Further, the court held that

Ms. Raynor had failed to act with responsible diligence to question Mr.

Chapman at any time after May 31, 2012. The court reaffirmed its finding

that Dr. Kelly’s testimony was credible, whereas Mr. Chapman’s testimony

was contradictory and suspiciously timed to provide an “alibi” for Ms.

Raynor.   The court refused to reconsider the sanctions, based on Mr.

Chapman’s testimony.

     On May 22, 2015, Ms. Raynor filed a motion for clarification of this

Court’s February 18, 2015 order. By order entered May 27, 2015, this Court

granted   her   motion   and   stated   the   February   19,   2015   emergency

supersedeas order remained in effect until all of Ms. Raynor’s appeals are

exhausted.

     Ms. Raynor raises the following issues for our review:


                                    - 43 -
J-A17045-15


         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
         IMPOSING SANCTIONS AGAINST [MS.] RAYNOR FOR
         CONTEMPT AND VIOLATION OF 42 PA.C.S.A. § 2503(7) IN
         THE ABSENCE OF EVIDENCE ESTABLISHING THAT [MS.]
         RAYNOR ENGAGED IN WILLFUL VIOLATION OF A COURT
         ORDER OR ANY VEXATIOUS, OBDURATE OR DILATORY
         CONDUCT?

         WHETHER THE TRIAL COURT COMMITTED NUMEROUS
         PROCEDURAL ERRORS, DEPRIVED [MS.] RAYNOR OF HER
         RIGHT TO DUE PROCESS UNDER THE LAW AND
         ABANDONED ITS ROLE AS NEUTRAL ARBITER BY:

         i.     IMPOSING CRIMINAL CONTEMPT SANCTIONS ON
                [MS.] RAYNOR WITHOUT AFFORDING HER THE
                REQUISITE    DUE    PROCESS  PROTECTIONS
                GUARANTEED BY THE UNITED STATES AND
                PENNSYLVANIA CONSTITUTIONS?

         ii.    IMPROPERLY PLACING THE BURDEN OF PROOF ON
                [MS.] RAYNOR TO ESTABLISH THAT SHE COMPLIED
                WITH THE PRECLUSION ORDER, RATHER THAN
                REQUIRING PLAINTIFF TO ESTABLISH THAT [MS.]
                RAYNOR VIOLATED THE ORDER?

         iii.   BY ACCEPTING—AS THE SOLE SUBSTANTIVE
                EVIDENCE    SUPPORTING   ITS   CONCLUSION—
                INADMISSIBLE HEARSAY STATEMENTS FROM [DR.]
                KELLY ELICITED BY THE COURT ITSELF DURING A
                PROCEEDING IN WHICH [MS.] RAYNOR HAD NO
                NOTICE THAT SHE WAS CHARGED WITH CONTEMPT,
                WAS NOT A PARTY TO THE ACTION AND WAS
                AFFORDED NO RIGHT TO CROSS-EXAMINATION?

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
         WHEN IT IMPOSED SANCTIONS IN THE TOTAL AMOUNT OF
         $946,197.16 WITHOUT A HEARING, AND WITHOUT
         COMPETENT      EVIDENCE   TO    ESTABLISH    THE
         REASONABLENESS OF THE AMOUNT IN CIRCUMSTANCES
         WHERE THE AMOUNT IMPOSED BORE NO REASONABLE
         RELATIONSHIP TO ANY LOSS INCURRED AND HENCE WAS
         PUNITIVE IN NATURE?

(Ms. Raynor’s Brief at 3-4).

                                - 44 -
J-A17045-15


      In her issues combined, Ms. Raynor initially argues the law assigned to

Plaintiff the burden of proof regarding her motion for civil contempt and

sanctions against Ms. Raynor. Ms. Raynor asserts Plaintiff’s burden explicitly

required Plaintiff to prove Ms. Raynor had notice of a specific order, freely

violated the order, and acted with wrongful intent.     Ms. Raynor contends

Plaintiff failed to point to any order that expressly required defense counsel

to warn their expert witnesses about precluded topics at any time, but

particularly just before the expert witnesses took the stand; and there was

none. Ms. Raynor avers Plaintiff relied solely on Dr. Kelly’s May 31, 2012

trial testimony as proof that Ms. Raynor had intentionally violated the

smoking preclusion order.    Ms. Raynor maintains to the contrary that Dr.

Kelly’s equivocal testimony on that date failed to demonstrate Ms. Raynor

had violated the smoking preclusion order or that Ms. Raynor had not

informed him of the smoking ban. Ms. Raynor asserts the court used this

scant testimony to shift Plaintiff’s burden improperly to Ms. Raynor to prove

she had warned Dr. Kelly of the ban on decedent’s smoking history.

      Ms. Raynor directs our attention to earlier in the 2012 trial transcript,

where the court purposely declined to enter an order directing defense

counsel to remind their expert witnesses about the smoking ban immediately

before the witnesses took the stand.     Ms. Raynor submits nothing in the

existing pretrial smoking preclusion order required defense attorneys to

inform their witnesses that the smoking ban had been reduced to an order


                                    - 45 -
J-A17045-15


or to warn their expert witnesses about the smoking ban immediately before

the witnesses took the stand. In any event, Ms. Raynor declares she did tell

Dr. Kelly about the smoking ban before the trial began. Ms. Raynor claims

the court rebuffed her efforts to introduce testimony, immediately following

Dr. Kelly’s violation, to show Ms. Raynor had told Dr. Kelly about the

smoking ban. Ms. Raynor asserts the testimony of her witnesses offered at

the later sanctions hearings confirmed she had warned Dr. Kelly not to

mention decedent’s smoking habit in his trial testimony.           Ms. Raynor

contends the testimony of Mr. Moore and Dr. Geller at the subsequent

sanctions hearings was materially consistent and corroborated her own

statements to the court that she had warned Dr. Kelly several times about

the smoking ban.       Ms. Raynor avers the court likewise erroneously

disregarded   Mr.   Chapman’s   later   testimony   on   remand,   despite   its

substantial consistency with the testimony of her other witnesses.

       Ms. Raynor further insists Dr. Kelly’s own testimony both on May 31,

2102, and later at the contempt hearing, at best demonstrates that he

“could not remember” what Ms. Raynor had told him concerning the smoking

ban.   Ms. Raynor asserts Dr. Kelly’s “inability to recall” did not directly

contradict the testimony of her witnesses, who all testified Ms. Raynor had in

fact warned Dr. Kelly not to mention at trial the topic of decedent’s smoking

habit. Ms. Raynor contends the court simply rejected the testimony of her

witnesses at the contempt hearings as suspicious and/or untimely, without


                                    - 46 -
J-A17045-15


any record support for those conclusions. Ms. Raynor avers the court had no

basis to discredit her witnesses’ testimony in favor of Dr. Kelly’s equivocal

and evasive testimony.       On this record, Ms. Raynor maintains the court

improperly shifted the burden of proof to her in the contempt proceedings

and erred in finding she had willfully violated the smoking preclusion order.

         Ms. Raynor also suggests the court ultimately held her in “criminal”

contempt, given the nature of the sanctions imposed. Ms. Raynor contends

civil contempt sanctions are for the purpose of inducing compliance with

court proceedings; and, despite her full compliance with the court’s order,

the court still sanctioned her.    Ms. Raynor asserts the court only casually

questioned Dr. Kelly about his trial preparation immediately after he had

violated the smoking ban during the first trial, but the court gave Ms. Raynor

no opportunity to cross-examine Dr. Kelly.       Ms. Raynor alleges the court

abandoned neutrality by interrupting Dr. Kelly and shaping his responses.

         Ms. Raynor also avers the court erred in admitting Dr. Kelly’s earlier

trial statements in the later sanctions hearing, where the earlier statements

constituted inadmissible hearsay on two grounds: (1) Ms. Raynor was not a

party in the first trial and (2) she had no opportunity to cross-examine Dr.

Kelly.    Her opportunity to cross-examine Dr. Kelly at the later sanctions

hearing did not cure the hearsay nature of his earlier statements and was, in

any event, too late to be effective.

         Additionally, Ms. Raynor asserts she was entitled to a separate hearing


                                       - 47 -
J-A17045-15


on the reasonableness of the sanctions imposed.        Ms. Raynor claims an

evidentiary hearing was essential to establish key facts which the court

should have considered in making its sanctions assessment. For example,

Ms. Raynor states Plaintiff failed to prove actual harm to the value of her

case, because Plaintiff’s award was significantly higher in the second trial,

where evidence of decedent’s smoking habit was actually permitted.

Likewise, Ms. Raynor claims the sanctions evidence of counsel’s unbilled

hourly time charges offered by Plaintiff did not represent actual loss to

Plaintiff. Ms. Raynor insists the award of attorneys’ fees associated with the

first trial was improper primarily because Plaintiff’s attorneys worked on a

contingent-fee basis, and Plaintiff was not responsible for the attorneys’

unbilled time charges. Ms. Raynor contends the court deprived her of the

opportunity to challenge the appropriateness and reasonableness of the

counsel fees/sanctions by refusing to hold a hearing on the amount of

sanctions imposed.      Further, Ms. Raynor maintains Plaintiff and her

attorneys could not have avoided the cost of the first trial, even if Dr. Kelly

had honored the smoking ban.       Ms. Raynor alleges the court’s excessive

sanctions were punitive both in amount and intent, which was to punish her

for Dr. Kelly’s errant comment. Ms. Raynor concludes the trial court abused

its discretion by finding her liable for contempt based on this record and

imposing excessive sanctions.

      Plaintiff counters Dr. Kelly’s testimony and responses to the court’s


                                    - 48 -
J-A17045-15


inquiries, taken from the May 31, 2012 trial transcript, were alone sufficient

to support the finding of contempt and the sanctions imposed.         Plaintiff

asserts the court properly admitted the Dr. Kelly’s testimony from May 31,

2012, at the later contempt hearing, as party admissions. Plaintiff contends

Dr. Kelly’s mere statement that he “did not remember” having discussed the

order constituted sufficient grounds for sanctions, because Ms. Raynor had a

duty to prepare Dr. Kelly properly by cautioning him immediately before he

took the stand, even if no order expressly required her to do so. Plaintiff

insists the necessity for cautioning Dr. Kelly just before he took the stand

was “inherent” in the smoking preclusion order, because Ms. Raynor knew

Dr. Kelly was a “very busy emergency room physician with important

administrative duties” who might not remember her prior instructions.

Plaintiff also contends Ms. Raynor intentionally framed and asked a question

designed to prompt Dr. Kelly to mention decedent’s smoking habit in his

response.

      Plaintiff avers the court had discretion to impose sanctions from the

bench during the first trial; instead, the court gave Ms. Raynor an additional

opportunity to explain her trial conduct at the separate contempt hearings.

Plaintiff maintains Ms. Raynor had the initial burden of proof only in her

capacity as the proponent of new witness testimony, when she introduced

Mr. Chapman’s testimony. The court, however, concluded she failed to meet

her burden to deserve reconsideration of the sanctions award.


                                    - 49 -
J-A17045-15


      Plaintiff further argues Dr. Geller and Mr. Moore were both “interested

parties” in the later contempt proceedings, and their testimony was

therefore innately untrustworthy. Plaintiff asserts their testimony was also

inconsistent,   which   further   demonstrated    the   unreliability   of   their

statements.     Plaintiff indicates Ms. Raynor’s later testimony was likewise

suspicious, because Ms. Raynor failed to accuse Dr. Kelly promptly of lying

when he first said he did not remember discussing the smoking preclusion

order with her. Plaintiff contends Ms. Raynor’s evolving story and her post-

trial “change in attitude” toward Dr. Kelly demonstrate her unreliability as a

witness. Plaintiff concludes the extent and amount of the court’s sanctions

was appropriate and necessary, given the complexities of the trial and the

unfairness that would result if the court did not compensate Plaintiff for all of

the damages Ms. Raynor caused, including all counsel fees and costs

associated with the 2012 trial. For the following reasons, we reject Plaintiff’s

contentions and agree with Ms. Raynor’s position.

      This Court reviews contempt orders subject to the following principles:

         [A]n appellate court has the authority to determine
         whether the findings of the trial court support its legal
         conclusions, but may only interfere with those conclusions
         if they are unreasonable in light of the trial court’s factual
         findings. This Court will not reverse or modify a final
         decree unless there has been an error of law or an abuse
         of discretion, or if the findings are not supported by
         the record, or there has been a capricious disbelief
         of the credible evidence. Furthermore [e]ach court is
         the exclusive judge of contempt against its process, and
         on appeal its actions will be reversed only when a plain
         abuse of discretion occurs.

                                     - 50 -
J-A17045-15



Mrozek v. James, 780 A.2d 670, 673 (Pa.Super. 2001) (internal citations

and quotation marks omitted) (emphasis added).      As well, the amount of

monetary sanctions is subject to an abuse of discretion standard; however,

sanctions deemed excessive under the circumstances might compel reversal

or remand for modification.   Commonwealth v. Bowden, 576 Pa. 151,

186, 838 A.2d 740, 761 (2003) (reiterating ability to comply is key

consideration in determining propriety of civil contempt sanctions; court

must consider defendant’s financial resources before entering monetary

contempt sanction).

     The distinction between criminal and civil contempt lies in the court’s

dominant purpose for using its contempt power.      Diamond v. Diamond,

792 A.2d 597, 600 (Pa.Super. 2002).

        The factors generally said to point to a civil contempt are
        these: (1) [w]here the complainant is a private person as
        opposed to the government or a governmental agency; (2)
        where the proceeding is entitled [captioned] in the
        original…action and filed as a continuation thereof as
        opposed to a separate and independent action; (3) where
        holding the [respondent] in contempt affords relief to a
        private party; (4) where the relief requested is primarily
        for the benefit of the complainant; and (5) where the acts
        of contempt complained of are primarily civil in nature and
        do not of themselves constitute crimes or conduct by the
        [respondent] so contumelious that the court is impelled to
        act on its own motion.

Stahl v. Redcay, 897 A.2d 478, 486 (Pa.Super. 2006), appeal denied, 591

Pa. 704, 918 A.2d 747 (2007) (citations omitted).

        A judgment in a civil contempt proceeding for the benefit

                                   - 51 -
J-A17045-15


          of a private [complainant] will, of course, incidentally
          vindicate the authority of the court just as on the other
          hand a criminal contempt judgment, which is punitive,
          may often advance private interests. But the test is the
          dominant purpose, not the incidental result.

Id. at 487 (internal citation omitted). Importantly,

          To be punished for contempt, a party must not only have
          violated a clear order, but that order must have been
          definite, clear, and specific—leaving no doubt or
          uncertainty in the mind of the contemnor of the prohibited
          conduct. Because the order forming the basis for civil
          contempt must be strictly construed, any ambiguities or
          omissions in the order must be construed in favor of the
          defendant. In such cases, a contradictory order or an
          order whose specific terms have not been violated will not
          serve as the basis for a finding of contempt. 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. A person may not
          be held in contempt of court for failing to obey an order
          that is too vague or that cannot be enforced.

Id. at 489 (emphasis in original) (citation omitted).      In other words, the

alleged contemnor      must know     of the   prohibited conduct, with any

ambiguities, omissions, or uncertainties in the order construed in favor of

the alleged contemnor, the act constituting the violation must be deliberate,

and the act of the alleged contemnor must have been done with improper

intent.   Id.   See also In re Contempt of Cullen, 849 A.2d 1207, 1210

(Pa.Super. 2004), appeal denied, 582 Pa. 676, 868 A.2d 1201 (2005).

      “In proceedings for civil contempt of court, the general rule is that the

burden of proof rests with the complaining party to demonstrate that the

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defendant is in noncompliance with a court order.”          MacDougall v.

MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012), appeal denied, 621 Pa.

679, 75 A.3d 1282 (2013).       “However, a mere showing of noncompliance

with a court order, or even misconduct, is never sufficient alone to prove

civil contempt.”   Habjan v. Habjan, 73 A.3d 630, 637 (Pa.Super. 2013).

See also In re Contempt of Cullen, supra.            “[U]nless the evidence

establishes an intentional disobedience or an intentional [disregard] of the

lawful process of the court, no contempt has been proven.” Ricci v. Geary,

670 A.2d 190, 192 (Pa.Super. 1996).

      Notably, “the holding of an individual in contempt for the actions of a

third party would appear inappropriate and, therefore, unsupportable unless

the individual con[s]ciously directed the third party to act as he did and

possessed such authority over the third party that [the directing individual]

could compel compliance with the directive.”    Commonwealth v. Michel,

522 A.2d 90, 93 (Pa.Super. 1987). Only then can the third party’s act “be

imputed to the directing party. However, even then it would be necessary to

find wrongful intent.”   Id.   The proponent must prove and the court must

still find wrongful intent even if it determines the contemnor directed the

third party’s actions.   Yeager v. Kavic, 765 A.2d 812, 815 (Pa.Super.

2000), appeal denied, 567 Pa. 745, 788 A.2d 378 (2001).

      The imposition of counsel fees can serve as a sanction upon a finding

of civil contempt. Rhoades v. Pryce, 874 A.2d 148, 153 (Pa.Super. 2005)


                                     - 53 -
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(en banc), appeal denied, 587 Pa. 724, 899 A.2d 1124 (2006).

         [T]he court may, in a proceeding for civil contempt,
         impose the remedial punishment of a fine payable to an
         aggrieved [complainant] as compensation for the special
         damages he may have sustained by reason of the
         contumacious behavior of the offender.

                                  *     *      *

         Where compensation is intended, a fine is imposed,
         payable to the complainant. Such fine must of course be
         based upon evidence of complainant’s actual loss, and his
         right, as a civil litigant, to the compensatory fine is
         dependent upon the outcome of the basic controversy.

Stahl, supra at 487 (internal citation omitted).        See also Jack Rees

Nursing and Rehabilitation Services v. Hersperger, 600 A.2d 207, 209

(Pa.Super. 1991) (stating contempt fine, meant to compensate complainant,

must be based on evidence of complainant’s actual loss). For example, “[A]

court may require the contemnor to compensate the opposing party for

losses incurred as a result of the violation or reimburse the party’s attorneys’

fees and costs.” Gunther v. Bolus, 853 A.2d 1014, 1016 (Pa.Super. 2004),

appeal denied, 578 Pa. 709, 853 A.2d 362 (2004).

      Nevertheless, an award of counsel fees is intended to reimburse an

innocent litigant for the expenses the conduct of an opponent makes

necessary, such as the cost of the contempt hearing, so it can be coercive

and compensatory but it cannot be punitive.        Mrozek, supra.    Moreover,

“[T]he court may not convert a coercive [ruling] into a punitive one by

imposing conditions that a contemnor cannot perform and thereby purge


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[herself] of the contempt.”     Schnabel Assoc., Inc. v. Building and

Constr. Trades Council of Philadelphia and Vicinity, AFL-CIO, 487 A.2d

1327, 1338 (Pa.Super. 1985).       Importantly, when fixing the amount of

sanctions, the court must also consider the financial resources of the alleged

contemnor as well as the financial consequences of the burden imposed by

the sanctions.   Id.   See also Colbert v. Gunning, 533 A.2d 471, 472

(Pa.Super. 1987) (holding when court found appellant in civil contempt,

court did not have authority to impose sanctions for purpose of inflicting

punishment on appellant; unconditional authority in civil contempt means

court may exercise civil contempt power to compel performance but not to

inflict punishment).

      We further observe: “Pennsylvania generally adheres to the American

Rule, under which a litigant cannot recover counsel fees from an adverse

party unless there is express statutory authorization, a clear agreement of

the parties, or some other established exception.” Samuel-Bassett v. Kia

Motors America, Inc., 613 Pa. 371, 464, 34 A.3d 1, 57 (2011).

Pennsylvania courts can award counsel fees to the prevailing party but only

“when authorized by statute or rule of court, upon agreement of the parties,

or pursuant to some other recognized case law exception.” Olympus Corp.

v. Canady, 962 A.2d 671, 677 (Pa.Super. 2008).

      An award of counsel fees under 42 Pa.C.S.A. § 2503 is distinct from a

finding of contempt that might include sanctions in the form of counsel fees.


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Wood v. Geisenhemer-Shaulis, 827 A.2d 1204, 1207 (Pa.Super. 2003).

Section 2503 provides as follows:

        § 2503. Right of participants to receive counsel fees

           The following participants shall be entitled to a
           reasonable counsel fee as part of the taxable costs of
           the matter:

                                 *     *      *

              (7) Any participant who is awarded counsel fees as a
              sanction against another participant for dilatory,
              obdurate or vexatious conduct during the pendency of
              a matter.

42 Pa.C.S.A. § 2503. “Classically, in considering a motion to award counsel

fees under [S]ection 2503, an evidentiary hearing is generally required.”

Wood, supra. In this context as well, “The order that forms the basis for

the contempt process in civil proceedings must be definitely and strictly

construed. Any ambiguity or omission in the order forming the basis of the

civil contempt proceeding must be construed in favor of the [accused].

Where the order is contradictory or the specific terms of the order have not

been violated, there is no contempt.” Id. at 1207-08.

     “[A]ny award of counsel fees pursuant to 42 Pa.C.S.A. § 2503(7) must

be supported by a trial court’s specific finding of dilatory, obdurate or

vexatious conduct.” Township of South Strabane v. Piecknick, 546 Pa.

551, 560, 686 A.2d 1297, 1301 (1996).             The trial court does not have

discretion to award counsel fees to the prevailing party in any contempt case

absent record support for these specific findings. Id. at 559. For example,

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a court may find dilatory conduct where the record demonstrates counsel’s

lack of diligence delayed proceedings and caused additional legal work.

Gertz   v.   Temple    University-Commonwealth           System     of   Higher

Education, 661 A.2d 13, 17 n.2 (Pa.Super. 1995).           A court may award

contempt sanctions for vexatious conduct under Section 2503(7) when

counsel’s behavior is wholly unreasonable. Kelley v. Thompson, 474 A.2d

44 (Pa.Super. 1984) (affirming imposition of modest sanction for plaintiff’s

counsel’s arbitrary and unfounded refusal to sign settlement order). “[T]he

essential due process requisites for a finding of civil contempt are notice and

an opportunity to be heard.”    In re Contempt of Cullen, supra at 1211

(quoting Schnabel Assoc., Inc., supra at 1334).          If contempt sanctions

are based on the violation of a court order, then due process requires notice

of the violations alleged and an opportunity for explanation and defense.

Diamond, supra at 601.       See also Garr v. Peters, 773 A.2d 183, 191

(Pa.Super. 2001) (stating: “Procedural due process requires, at its core,

adequate notice, opportunity to be heard, and the chance to defend oneself

before a fair and impartial tribunal having jurisdiction over the case”).

      This Court has previously evaluated the reasonableness of attorneys’

fees by examining the following factors:

         [T]he amount of work performed; the character of the
         services rendered; the difficulty of the problems involved;
         the importance of the litigation; the amount of money or
         value of the property in question; the degree of
         responsibility incurred; whether the fund involved was
         ‘created’ by the attorney; the professional skill and

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          standing of the attorney in his profession; the results he
          was able to obtain; the ability of the client to pay a
          reasonable fee for the services rendered; and, very
          importantly, the amount of money or the value of the
          property in question.

Holz v. Holz, 850 A.2d 751, 761 (Pa.Super. 2004), appeal denied, 582 Pa.

700, 871 A.2d 192 (2005) (quoting Gilmore by Gilmore v. Dondero, 582

A.2d 1106, 1109 (Pa.Super. 1990). “[I]n exercising its discretion, [the trial

court] must evaluate the reasonableness of time spent by counsel in relation

to the particular case.” Danks v. Government Employees Ins. Co., 453

A.2d 655, 656 (Pa.Super. 1982).

      Although the responsibility for setting counsel fees lies primarily with

the trial court, this Court has the power to reverse that exercise when there

is plain error.   Gilmore, supra at 1108.    “Plain error is found where the

award is based either on factual findings for which there is no evidentiary

support or on legal factors other than those that are relevant to such an

award.”    Id.    Significantly, cases involving contingent fee arrangements

intrinsically involve some risk that counsel will recover no money for the

professional services rendered. Id. at 1110. In other words, by virtue of a

contingency fee arrangement, counsel takes on the risk that he will not get

paid as well as the risk that he will lose the money advanced for the costs of

his client’s suit. See id.

      With respect to admission of evidence, “The basic requisite for the

admission of any evidence is that it be both competent and relevant.


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Evidence is competent if it is material to the issues to be determined at trial,

and relevant if it tends to prove or disprove a material fact in issue.”

Moroney v. General Motors Corp., 850 A.2d 629 (Pa.Super. 2004),

appeal denied, 580 Pa. 714, 862 A.2d 1256 (2004). The Pennsylvania Rules

of Evidence11 provide:

          Rule 401. Test for Relevant Evidence”

          Evidence is relevant if:

          (a) it has any tendency to make a fact more or less
          probable than it would be without the evidence; and

          (b) the fact is of consequence in determining the action.
          “Relevant evidence” means evidence having any tendency
          to make the existence of any fact that is of consequence to
          the determination of the action more probable or less
          probable than it would be without the evidence.

              Comment: This rule is identical to F.R.E. 401.

              Whether evidence has a tendency to make a given fact
              more or less probable is to be determined by the court
              in the light of reason, experience, scientific principles
              and the other testimony offered in the case.

              The relevance of proposed evidence may be dependent
              on evidence not yet of record. Under Pa.R.E. 104(b),
              the court may admit the proposed evidence on the
              condition that the evidence supporting its relevance be
              introduced later.

____________________________________________


11
   On January 17, 2013, the legislature rescinded the prior version of the
rules of evidence and replaced them with the current version of the rules
which went into effect on March 18, 2013. Here, the first trial occurred in
2012 but the contempt/sanctions proceedings extended into 2014.
Nevertheless, for our purposes the rules are essentially the same.



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Pa.R.E. 401. Rule 402 states:

        Rule 402. General Admissibility of Relevant
             Evidence

        All relevant evidence is admissible, except as otherwise
        provided by law. Evidence that is not relevant is not
        admissible.

           Comment: Pa.R.E. 402 differs from F.R.E. 402. The
           Federal Rule specifically enumerates the various sources
           of federal rule-making power. Pa.R.E. 402 substitutes
           the phrase “by law.”

           Pa.R.E. 402 states a fundamental concept of the law of
           evidence. Relevant evidence is admissible; evidence
           that is not relevant is not admissible. This concept is
           modified by the exceptions clause of the rule, which
           states another fundamental principle of evidentiary
           law−relevant evidence may be excluded by operation of
           constitutional law, by statute, by these rules, by other
           rules promulgated by the Supreme Court or by rules of
           evidence created by case law.

                                  *   *       *

Pa.R.E. 402. In other words, evidence that might be relevant to an issue in

a particular case can still be incompetent and inadmissible because one or

more established rules of evidence preclude admission.      Id.   See also

Commonwealth v. Paddy, 569 Pa. 47, 70-71, 800 A.2d 294, 308 (2002)

(stating: “Evidence that is relevant may nevertheless be inadmissible if it

violates a rule of competency, such as the hearsay rule”). Pennsylvania Rule

of Evidence 801 defines hearsay as follows:

        Rule 801. Definitions That Apply to This Article

        (a) Statement.       “Statement” means a person’s oral
        assertion, written assertion, or nonverbal conduct, if the

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        person intended it as an assertion.

        (b) Declarant.       “Declarant” means the person who
        made statement.

        (c)    Hearsay. “Hearsay” means a statement that

        (1) the declarant does not make while testifying at the
        current trial or hearing; and

        (2) a party offers in evidence to prove the truth of the
        matter asserted in the statement.

                                *     *      *

Pa.R.E. 801. Generally, hearsay is inadmissible, except as provided by the

rules of evidence, other Pennsylvania Supreme Court rules, or by statute.

Pa.R.E. 802.    Rule 803 lists various exceptions to the hearsay rule,

regardless of whether the declarant is available as a witness, and states in

part:

        Rule 803.       Exceptions to the Rule Against
        Hearsay−Regardless of Whether the Declarant Is
        Available as a Witness

        The following are not excluded by the rule against hearsay,
        regardless of whether the declarant is available as a
        witness:

                                *     *      *

        (25) An Opposing Party’s Statement.                The statement
        is offered against an opposing party and:

        (A) was made by the           party      in   an   individual   or
        representative capacity;

        (B) is one the party manifested that it adopted or
        believed to be true;


                                    - 61 -
J-A17045-15


         (C) was made by a person whom the party authorized to
         make a statement on the subject;

         (D) was made by the party’s agent or employee on a
         matter within the scope of that relationship and while it
         existed; or

         (E) was made by the party’s coconspirator during and in
         furtherance of the conspiracy.

         The statement may be considered but does not by itself
         establish the declarant’s authority under (C); the existence
         or scope of the relationship under (D); or the existence of
         the conspiracy or participation in it under (E).

            Comment: Pa.R.E. 803(25) differs from F.R.E.
            801(d)(2), in that the word “must” in the last paragraph
            has been replaced with the word “may.”

            The Federal Rules treat these statements as “not
            hearsay” and places them in F.R.E 801(d)(2). The
            traditional view was that these statements were
            hearsay, but admissible as exceptions to the hearsay
            rule. The Pennsylvania Rules of Evidence follow the
            traditional view and place these statements in Pa.R.E.
            803(25), as exceptions to the hearsay rule−regardless
            of the availability of the declarant.    This differing
            placement is not intended to have substantive effect.

            The statements in this exception were traditionally, and
            in prior versions of both the Federal Rules of Evidence
            and the Pennsylvania Rules of Evidence, called
            admissions, although in many cases the statements
            were not admissions as that term is employed in
            common usage. The new phrase used in the federal
            rules−an opposing party’s statement−more accurately
            describes these statements and is adopted here.

Pa.R.E. 803(25) and Comment.      Rule 804 provides exceptions to the rule

against hearsay, when the declarant is unavailable as a witness, and states

in pertinent part as follows:


                                    - 62 -
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        Rule 804.   Exceptions to the Rule Against
        Hearsay−When the Declarant is Unavailable as a
        Witness

        (a) Criteria for Being Unavailable. A declarant is
        considered to be unavailable as a witness if the declarant:

                                 *     *      *

        (3) testifies    to   not     remembering        the   subject
        matter;

                                 *     *      *

        (b) The Exceptions. The following are not excluded by
        the rule against hearsay if the declarant is unavailable as a
        witness:

        (1)   Former testimony. Testimony that:

        (A) was given as a witness at a trial, hearing, or lawful
        deposition, whether given during the current proceeding or
        a different one; and

        (B) is now offered against a party who had—or, in a
        civil case, whose predecessor in interest had—an
        opportunity and similar motive to develop it by
        direct, cross-, or redirect examination.

                                 *     *      *

Pa.R.E. 804 (some emphasis added). If former testimony is admitted under

the hearsay exception in Pa.R.E. 804(b)(1)(B), due process is satisfied only

if the statements are introduced against a party who has had an adequate

opportunity   for   cross-examination         in   the   previous   proceeding.

Commonwealth v. Stays, 70 A.3d 1256 (Pa.Super. 2013).                If a party

attempts to introduce a declarant’s prior testimony, the court must have

granted the opposing party a full and fair opportunity to cross-examine the

                                     - 63 -
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declarant at the earlier proceeding. Commonwealth v. Bazemore, 531

Pa. 582, 588, 614 A.2d 684, 687 (1992).       Additionally, “the issues in the

prior proceeding and the purpose for which the testimony was there offered

must have been such that the present opponent had an adequate motive for

testing on cross-examination the credibility of the testimony now offered.”

Commonwealth v. Smith, 647 A.2d 907, 911 (Pa.Super. 1994) (quoting

Commonwealth v. Velasquez, 449 Pa. 599, 601 n.3, 296 A.2d 768, 770

n.3 (1972)).   “It is always the right of a party against whom a witness is

called to show by cross-examination that he has an interest direct or

collateral in the result of the [proceeding]….”         Commonwealth v.

Cheatham, 429 Pa. 198, 203, 239 A.2d 293, 296 (1968) (quoting Lenahan

v. Pittston Coal Mining Co., 221 Pa. 626, 629, 70 A. 884, 885 (1908)).

Where the credibility of the witness is crucial to the outcome, the court must

permit cross-examination on bias. Id.

      In the instant case, Plaintiff first filed her MIL on November 21, 2011,

to preclude any evidence, testimony, and/or argument by Defendants

regarding the decedent’s smoking history on the grounds that Defendants

had “failed to offer any medical expert opinion” to support “a causal

connection between [decedent’s] smoking and either the negligent failure of

Defendants to diagnose [decedent’s] lung cancer in May 2007, or the

progression of her cancer between May 2007 and her death in July 2009,

and where Plaintiff has offered expert opinion that continued smoking by


                                    - 64 -
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[decedent] after the time [Defendants] failed to diagnose the lung tumor,

had no effect on the progress of her cancer.” By order dated December 5,

and docketed December 6, 2011, the court originally entered a pretrial order

that granted Plaintiff’s MIL in part to preclude evidence, testimony and/or

argument by the defendants regarding decedent’s smoking history as

irrelevant and unfairly prejudicial on the issue of liability.      The court

determined that decedent’s smoking history was relevant to the issue of

damages.    The court ordered the trial bifurcated into two phases with the

same jury; if the jury found liability then decedent’s smoking history would

be admissible in the second phase, to follow immediately, in which damages

would be assessed. If Plaintiff chose to withdraw the MIL, the trial would not

be bifurcated and decedent’s smoking history would be admissible with a

cautionary instruction on its limited relevance.

      Due to later changes in the witness list, Plaintiff renewed her pre-trial

motion to preclude evidence at trial of decedent’s smoking history and asked

the trial court to grant the motion in its entirety, not just in part, because

now there was no defense expert testimony supporting any issue for which

smoking was relevant, even for life expectancy. (See N.T. MIL, 5/16/12, at

8; R.R. at 311a.)

                            PRECLUSION ORDER

      In response to Plaintiff’s renewed request, the trial court issued a

substituted pretrial order on May 21, 2012, which stated in relevant part as


                                     - 65 -
J-A17045-15


follows:

           … Upon consideration of Plaintiff’s Motion In Limine to
           Preclude Evidence, Testimony, and/or Argument by
           Defendants Regarding Decedent’s Smoking History, and
           any response thereto, it is hereby ORDERED and DECREED

                1. Plaintiff’s Motion is GRANTED.     [handwritten: “, by
                AGREEMENT”]

                2. Defendants are precluded from presenting any
                evidence, testimony, and/or argument regarding
                Decedent’s smoking history.

                [handwritten]
                3. This order will [supersede] Judge Rau’s order of 12-
                   5-2011 by agreement of the parties.

(Trial Court Order, dated May 16, 2012, filed May 21, 2012, at 1; R.R. at

372a).      Plainly, the order precluded defendants from presenting any

evidence, testimony, or argument regarding decedent’s smoking history.

The order, however, did not expressly require defense counsel either to

inform their witnesses that the smoking ban had been reduced to an order

or to remind their defense witnesses about the smoking ban immediately

before the witnesses took the stand. When Plaintiff asked the court to issue

an   explicit    directive   to   defense   counsel   to   remind   their   witnesses

immediately before they took the stand, the court intentionally refused.

(See N.T. Trial #1, 5/30/12, A.M. Session, at 5-6; R.R. at 732a-733a.)

Although the court’s May 16, 2012 order informs counsel for the parties of

the scope of inadmissible evidence on decedent’s smoking history, it cannot

serve as the order of record to support the court’s finding of civil contempt


                                        - 66 -
J-A17045-15


against Ms. Raynor. See Stahl, supra. Likewise, the court’s reference to

the parties’ “understanding,” or the parties’ being “on notice,” of Plaintiff’s

request for the additional order, which the court refused to enter, does not

constitute the kind of “definite, clear, and specific order” required for a

finding of civil contempt in this case. See id. We must strictly construe any

ambiguities, omissions, or uncertainties in the order at issue in favor of Ms.

Raynor as the alleged contemnor. Id.; In re Contempt of Cullen, supra.

Thus, we hold the record from the 2012 trial, on which Plaintiff rested, lacks

the requisite foundational order to support the contempt ruling. See Stahl,

supra; Mrozek, supra.

                      IMPROPER BURDEN SHIFTING

      Additionally, we reiterate that Plaintiff had the burden to prove

contempt, i.e., to show more than just a violation of a court order. Contrary

to Plaintiff’s contention, Dr. Kelly’s May 31, 2012 statement on decedent’s

smoking habit, absent more, does not carry that burden.           In Plaintiff’s

motion for contempt and at the contempt hearing, Plaintiff rested solely on

the Dr. Kelly’s May 31, 2012 testimony from the first trial, and his responses

to the court’s impromptu inquiries, to support the inference that Dr. Kelly

was completely unaware of the smoking ban. These transcripts, however,

are at best misleading because the court’s questions to Dr. Kelly and his

responses are capable of multiple reasonable interpretations, for example,

that (1) Dr. Kelly did not know the ban on smoking testimony had been


                                    - 67 -
J-A17045-15


reduced to an order; or (2) he did not know about the smoking ban at all; or

(3) he was not told or reminded about the smoking ban (order or generally)

on May 31, 2012; or (4) he was not told or reminded about the smoking ban

(order or generally) immediately before he took the stand; or (5) the

smoking ban did not affect the context of cardiac risk factors. None of these

interpretations can be either favored or excluded.         After all, the court had

instructed Dr. Kelly not to discuss his trial testimony with counsel during the

short    break   between   his   credentials   testimony    and   his   substantive

testimony. Thus, the court’s questions and Dr. Kelly’s responses do not lead

to a definitive conclusion.      Quite the opposite, Dr. Kelly’s May 31, 2012

testimony demonstrated only Dr. Kelly’s confusion about why he was being

questioned by the court and his professed inability to recall he knew about

the smoking ban.

        Likewise, Dr. Kelly’s May 31, 2012 testimony on the issue of the

smoking ban was arguably hearsay and subject to exclusion, because his

testimony was offered later against Ms. Raynor, who had no adequate

opportunity to cross-examine Dr. Kelly during the earlier proceeding. See

Stays, supra.     Similarly, Dr. Kelly was Ms. Raynor’s emergency medicine

expert, the medical malpractice trial was in progress, and as her defense

expert Dr. Kelly was mid-testimony. Believing Dr. Kelly’s statement was just

a mistake, Ms. Raynor likewise had no motive or incentive to get into a

conflict with her own expert and attack his credibility or even call his


                                      - 68 -
J-A17045-15


credibility into doubt on this collateral matter, create a trial within a trial,

and risk the exclusion of his entire testimony. See Smith, supra.

      Nevertheless, without any substantiation, Plaintiff simply interprets Dr.

Kelly’s “lack of memory” as conclusive proof that Ms. Raynor failed to warn

him at all about the smoking ban. Plaintiff explains this leap of reason by

claiming Dr. Kelly would have remembered the smoking ban if he had been

warned about it just before he went on the stand.       The problem with this

rationale is twofold: (1) the smoking preclusion order did not direct counsel

to remind their witnesses of the smoking ban just before they took the

stand; and (2) Dr. Kelly’s blunder could still have occurred regardless of any

warning at whatever time, because witnesses often surprise counsel with

their answers despite preparation. In any event, no amount of speculation

can show that Dr. Kelly’s May 31, 2012 comment on decedent as a smoker

should be attributed to Ms. Raynor as proof that Ms. Raynor willingly or

intentionally violated the smoking preclusion order. Plaintiff may not impute

Dr. Kelly’s third-party act to Ms. Raynor without establishing that Ms. Raynor

consciously directed or possessed such authority over Dr. Kelly to make him

violate the smoking ban. See Michel, supra. The simple fact that Dr. Kelly

was Ms. Raynor’s expert witness, absent more, is not enough to impute that

kind of authority to Ms. Raynor. In any event, Plaintiff would still have to

prove Ms. Raynor’s wrongful intent. See Yeager, supra.

      Further, there is absolutely no substantive proof that Ms. Raynor


                                     - 69 -
J-A17045-15


intentionally framed or asked her question in a manner designed to prompt

Dr. Kelly to mention decedent’s smoking habit spontaneously in his

response.   Decedent presented in the emergency room with complaints of

chest pain, shortness of breath on exertion, cough, profuse sweating,

nausea, and frontal headache.         Decedent’s medical history included

osteoporosis, vascular disease, hypothyroidism, and hypertension.       Ms.

Raynor’s question to Dr. Kelly concerning decedent’s cardiac risk factors,

when read in context, was a wholly legitimate inquiry.   Ms. Raynor was in

the midst of showing the reasonableness of Dr. Geller’s immediate and

primary treatment approach, i.e., to rule out a heart attack.      Notably,

Plaintiff’s counsel posed no objection to Ms. Raynor’s question. Therefore,

we reject Appellees’ supposition that any question concerning decedent’s

cardiac risk factors was irrelevant and molded just to entice Dr. Kelly to

mention decedent’s smoking history.

     Even if Ms. Raynor’s question about cardiac risk factors triggered Dr.

Kelly’s comment on decedent’s smoking habit, Plaintiff cannot show Ms.

Raynor acted with wrongful intent. Dr. Kelly’s statement that decedent was

a smoker violated the ban on decedent’s smoking habit. Absent evidence,

however, that Dr. Kelly’s answer was a deliberate violation and that he gave

it with a wrongful intent that could be attributed to Ms. Raynor, Plaintiff

failed to prove Ms. Raynor committed civil contempt.     The trial record on

which Plaintiff’s counsel rested is devoid of any evidence of collusion,


                                   - 70 -
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intrigue, or wrongful purpose on the part of Ms. Raynor. See Stahl, supra;

Yeager, supra; Ricci, supra; Michel, supra.

         Plaintiff’s failure to prove Ms. Raynor was in civil contempt of the

court’s smoking preclusion order meant that Ms. Raynor had no obligation to

present witnesses in her defense.       Yet, the court’s statement, that Ms.

Raynor’s witnesses failed to “come forward in a timely manner to explain,”

demonstrates how the court prematurely shifted the burden to Ms. Raynor to

present a defense.     (See Trial Court Opinion, dated April 24, 2015, at 7.)

Plaintiff was the party initially obligated to establish Ms. Raynor was in civil

contempt, which Plaintiff failed to do. The court erred by shifting the legal

burden to Ms. Raynor to prove her innocence, based solely on Dr. Kelly’s

equivocal May 31, 2012 trial testimony.       See MacDougall, supra; Stahl,

supra; Mrozek, supra.

                       CREDIBILITY DETERMINATIONS

         On June 1, 2012, the day after Dr. Kelly’s violation of the smoking

ban, Ms. Raynor offered to present testimony from Dr. Geller, Mr. Moore, Dr.

Harris, and herself.    Plaintiff echoed Ms. Raynor’s request to introduce Mr.

Moore’s testimony as to whether Mr. Moore observed Ms. Raynor warn Dr.

Kelly.     The court denied the requests at that time.     The next available

opportunity for Ms. Raynor to present any testimony was during the

contempt hearing in 2014, at which point all four witnesses testified. The

record simply does not support the court’s declaration that Ms. Raynor’s


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“untimely” disclosure of Dr. Geller and Mr. Moore’s evidence rendered their

testimony unbelievable.

     Following remand from this Court for a hearing in 2015, on the

proposed newly discovered evidence in the form of Mr. Chapman’s

testimony, the court held Mr. Chapman’s testimony was not “newly

discovered,” because Ms. Raynor was aware of Mr. Chapman’s proposed

testimony since the 2012 trial. The court inferred Ms. Raynor was or should

have been aware of Mr. Chapman’s personal knowledge that she had warned

Dr. Kelly, based on Mr. Chapman’s 2015 testimony, although he expressly

stated his belief that Ms. Raynor had not heard him when he spoke to her at

the 2012 trial. The court assumed Ms. Raynor intentionally failed to call Mr.

Chapman as a witness earlier, at the 2014 contempt hearing, to her own

disadvantage.

     The court’s other reasons to reject Mr. Chapman’s testimony are also

inconsistent with the established record.     The court emphasized minor

discrepancies in the timing of events in Mr. Chapman’s testimony and the

testimony of the other defense witnesses. These alleged discrepancies were

insignificant and therefore immaterial, where Mr. Chapman’s testimony was

consistent on all key points with the testimony of Dr. Geller, Mr. Moore, Dr.

Harris, and Ms. Raynor. Dr. Kelly’s testimony on May 31, 2012, and later

during the 2014 contempt hearing, did nothing to contradict the testimony

of the other defense witnesses. The court overstated Dr. Kelly’s testimony


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and interpreted Dr. Kelly’s failure to recollect as an affirmation that Ms.

Raynor had not told him about the smoking ban.                  Assuming Dr. Kelly’s

testimony, as far as it went, was credible, his credibility did not require the

court to discredit automatically the testimony of the other defense

witnesses. Dr. Kelly’s inability to recall in 2014 what Ms. Raynor had told

him back in 2012, before the first trial, simply did not prove Ms. Raynor

failed to tell him anything about the smoking ban. The court erred when it

ruled that Dr. Kelly’s credibility obliged it to conclude that the other defense

witnesses must be incredible. Neither the timing of any of the testimony nor

the purported inconsistencies are dispositive. Here, the court controlled the

extent and limitations on the testimony it received in 2012.              As well, the

later   testimony    in    2014    and   2015      contained   no   material   conflict.

Nevertheless,   the       court   swaddled   its   ultimate    contempt   decision   in

unnecessary “credibility determinations,” which led it to a capricious distrust

of reliable evidence and a plain abuse of discretion under the circumstances

of this case.       See Mrozek, supra.             See also Stahl, supra; In re

Contempt of Cullen, supra.

                                    DUE PROCESS

        At the 2014 contempt hearing, Plaintiff offered Dr. Kelly’s prior

statements from the 2012 trial to prove Ms. Raynor had failed to warn Dr.

Kelly. Plaintiff offered Dr. Kelly’s 2012 testimony against Ms. Raynor, who

lacked opportunity and motive to cross-examine Dr. Kelly when he gave that


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testimony.    At the first trial in 2012, Dr. Kelly was one of Ms. Raynor’s

expert witnesses. She risked undermining his credibility as a defense expert

witness by vigorously discrediting his statement that he could not remember

having been warned about the smoking ban in the context of cardiac risk

factors. By accepting the 2012 transcript into evidence at the 2014 contempt

hearing, the court fully credited Dr. Kelly’s statements although Ms. Raynor

had no opportunity for confrontation in 2012. This evidence was hearsay,

and did not fall under any hearsay exception, where the court denied Ms.

Raynor a full and fair opportunity to question Dr. Kelly or rebut his

statements after his testimony on May 31, 2012.      Giving Ms. Raynor the

chance to question Dr. Kelly at the 2014 contempt hearing, over two years

later, did not constitute a “full and fair opportunity” to cross-examine Dr.

Kelly about his prior statements.     Likewise, the court also violated Ms.

Raynor’s due process rights when the court admitted Dr. Kelly’s 2012

testimony at the 2014 contempt hearing, because Ms. Raynor had no chance

in 2012 to expose Dr. Kelly’s potential bias and reasons for his 2012 evasive

testimony. See Pa.R.E. 801, 804; Bazemore, supra; Cheatham, supra;

Stays, supra; Smith, supra.

     The court’s refusal to hold a hearing on the amount of sanctions

awarded similarly deprived Ms. Raynor of her ability to contest the amount

of the award. The court announced without explanation that Ms. Raynor had

demonstrated the “dilatory, obdurate or vexatious conduct” required for an


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award of counsel fees under 42 Pa.C.S.A. § 2503(7), long after it actually

awarded the sanctions. The court claimed in its February 3, 2015 opinion

that it based the sanctions award on a finding of dilatory, obdurate, and

vexatious conduct. Even if the court found this conduct when it awarded the

sanctions on November 4, 2014, Ms. Raynor had no opportunity to contest

the finding.   The court did not hold an evidentiary hearing concerning the

reasonableness or amount of sanctions imposed on Ms. Raynor or Ms.

Raynor’s ability to pay.   See Schnabel Assoc., Inc., supra (stating that

when fixing amount of sanctions, court must also consider the financial

resources of alleged contemnor as well as financial consequences of burden

imposed by sanctions). See also Colbert, supra (holding when court found

appellant in civil contempt, court did not have authority to impose sanctions

for purpose of inflicting punishment on appellant; unconditional authority in

civil contempt means court may not exercise civil contempt power to inflict

punishment).    The court’s refusal to hold an evidentiary hearing on the

amount and financial consequences of the sanctions, as Ms. Raynor had

requested, violated her due process rights.   See 42 Pa.C.S.A. § 2503(7);

Piecknick, supra; Canady, supra; In re Contempt of Cullen, supra;

Wood, supra.

                    REASONABLENESS OF SANCTIONS

      Instead, the court based its sanctions award on a brief Plaintiff’s

counsel submitted, in which counsel sought $1,349,063.67 in expenses and


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attorneys’ fees representing the full costs and hourly fees associated with

the 2012 medical malpractice trial as well as the costs and fees incurred in

pursuing Plaintiff’s motion for contempt/sanctions.      To recover any award

associated with the 2012 trial, Plaintiff had to prove damage to her case as a

result of the smoking ban violation, which Plaintiff was unable to do. We are

not here to revisit the wisdom of awarding Plaintiff a second trial. We do

think, however, the fact that the verdict against the defense was in a

disappointing amount cannot necessarily be attributed to the mention of

decedent’s smoking habit, notwithstanding counsel’s unverified remarks

about the jury’s reaction to Dr. Kelly’s 2012 testimony. Plaintiff’s attorneys

worked on a contingency fee basis. Plaintiff was not responsible for paying

these alleged counsel fees.     Plaintiff’s attorneys incurred the risk that the

case would result in an unfavorable verdict and/or a less-than-hoped-for

award. The court erred when it granted Plaintiffs’ attorneys recovery of their

alleged fees and costs, based essentially on a discounted version of quantum

meruit in a contingency fee case.

      Moreover, Plaintiff actually prevailed at the first trial with an award of

$190,000.00. Plaintiff succeeded again at the second trial, with an award of

$1,975,713.00, where evidence of decedent’s smoking habit was admitted.

Plaintiff’s attempt to attribute the lower award in the first trial to Dr. Kelly’s

mention of smoking is therefore purely speculative.        Critically, a different

jurist presided over the second trial with a different jury, and the judge


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permitted defendants to introduce decedent’s smoking habit in the second

trial as it pertained to damages.   The variable circumstances between the

two trials means Plaintiff cannot reasonably use the difference between the

two verdicts as a yardstick for sanctions.      Likewise, the court erred in

awarding Plaintiff any fees or costs based on Plaintiff’s counsel’s allegations

of loss. See Rhoades, supra; Gunther, supra; Hersperger, supra.

      Moreover, having already prepared for the first trial, Plaintiff’s counsel

cannot honestly say they incurred the same costs and fees in the second

trial. Although the responsibility for setting counsel fees lies primarily with

the trial court, we have the power to reverse that exercise when there is

plain error.   See Gilmore, supra at 1108 (stating: “Plain error is found

where the award is based either on factual findings for which there is no

evidentiary support or on legal factors other than those that are relevant to

such an award”). Significantly, this case was pursued on a contingency-fee

arrangement, which intrinsically involves some risk that counsel will recover

no money for the professional services rendered. See id. at 1110. In other

words, by virtue of a contingency-fee arrangement, Plaintiff’s counsel

assumed the risk that they would not get paid at all as well as the risk that

they would lose the money advanced for the costs of Plaintiff’s suit. Id.

      Similarly, the court’s separate monetary award as a sanction in favor

of Plaintiff personally in the amount of $170,235.16 for “actual expenses”

cannot stand, where the award was completely arbitrary and without


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reasonable explanation except to comment that it was “a very emotional

case for Plaintiff’s family.” (See Trial Court Opinion, filed February 3, 2015,

at 24.) The record provides no evidentiary support at all for this particular

sanction. Therefore, we hold the sanctions the court imposed on Ms. Raynor

were unjustified.

        The prejudice allegedly suffered as a result of Dr. Kelly’s errant

comment during the first trial was rectified with the grant of a new trial. The

difficulties inherent in the underlying medical malpractice case and the

hourly fees associated with the high number of lawyers who allegedly

touched the file were embellished without basis. Plaintiff’s case carried no

question of law or fact so novel as to support the extensive charges. Even if

the case had involved new questions, counsel took the matter to court on a

contingency-fee basis.    Plaintiff’s lawyers are self-reported experienced

practitioners, who    consequently had systems in place         to   deal with

malpractice cases.

        Yet, the contempt narrative took on a life of its own.       Each time

Plaintiff’s counsel brought the contempt issue before the court, they

presumed what they were initially required to prove and presented their

conclusions with transparent venom, bloom, innuendo and increased

outrage, refreshed periodically with personal attacks on Ms. Raynor.

Counsel’s crusade caused their proclaimed injustice to gather potency over

time.    The court’s role in this regard was to engage in an even-handed


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assessment of what had happened at the 2012 trial, without subsequent

suggestion from counsel, particularly where the court was not inclined to

grant a mistrial when the error actually occurred and was convinced its

curative instruction would suffice. Only after the jury rendered its verdict in

the first trial did the court second-guess itself, with the ardent assistance of

Plaintiff’s counsel. On this record, therefore, we are bound to conclude that

the court erred in its assessment of contempt. Likewise, its sanctions were

gratuitous and imposed in an amount that was both unprecedented and

punitive. Accordingly, we reverse the order finding Ms. Raynor in contempt

and vacate all judgment related to the sanctions imposed on her.

      Order reversed; sanctions vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/2016




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