J-A08041-17

                                  2017 PA Super 185

    IN RE: ESTATE OF HELEN J.                  :   IN THE SUPERIOR COURT OF
    DISABATO, DECEASED                         :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: PETER DIGIOVANNI                :
                                               :
                                               :
                                               :
                                               :   No. 692 EDA 2016

                Appeal from the Order Entered February 3, 2016
                In the Court of Common Pleas of Chester County
                      Orphans’ Court at No(s): 1506-0528


BEFORE:      PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                                FILED JUNE 13, 2017

        Pro se Appellant, Peter DiGiovanni, challenges the Order entered by

the Court of Common Pleas of Chester County, Orphans’ Court division,

finding him in “continuing contempt” for his failure to make scheduled

payments to an estate for which he previously acted as administrator. We

affirm.

        On December 18, 2015, and February 3, 2016, the Orphans’ Court of

Chester County entered Orders declaring Appellant Peter DiGiovanni to be in

continuing contempt of the court’s previous Orders of July 18, 2012, August

6, 2013, and July 29, 2014. The previous Orders directed DiGiovanni to pay

$500.00 per month to the Co-Executors until he paid off a $29,279.55 debt




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*
    Former Justice specially assigned to the Superior Court.
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representing costs and fees incurred by the Estate in succeeding DiGiovanni

as executor/administrator back in 2007.1

       As for the July 18, 2012, Order, DiGiovanni argued that the court

expressly acknowledged that he had no present ability to comply with the

Order and directed him to liquidate property declared exempt from his

Chapter 7 bankruptcy proceedings.              Of note, Appellee’s Co-Executors had

previously prevailed upon the bankruptcy court that DiGiovanni’s debt to the

estate was non-dischargeable because it was caused by DiGiovanni’s willful

behavior and misconduct.

       DiGiovanni argued that the trial court’s July 18, 2012, Order

wrongfully imposed a new financial obligation upon him. On direct appeal,

this Court affirmed the trial court’s Order, but it remanded the matter for the

court to enter a new Order calling for the sale of items not protected under

the federal bankruptcy law.

       On July 29, 2014, another hearing upon a Petition for Contempt

resulted in an Order reiterating DiGiovanni’s obligation to make $500

payments every month until he paid off the $29,279.55-plus-interest sum.

The Order further declared that any failure of DiGiovanni to comply with this


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1
  Then-Orphans’ Court Judge Paula Francisco Ott entered two Orders finding
DiGiovanni in contempt:      one requiring payment of $23,070 for costs
incurred in connection with the prosecution of the Demkos’ contempt petition
and for additional attorneys’ fees incurred to complete administration; and
one requiring him to pay $6,209.55 for income tax.



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or any previous Order would entitle Appellee Estate, through the Co-

Executors, to obtain a Review Hearing. DiGiovanni never appealed from this

Order.

       On January 23, 2015, Appellee requested a Review Hearing for

DiGiovanni’s continuing failure to comply with the Order.      At the April 28,

2015, hearing, DiGiovanni admitted to receiving payments in cash for odd

jobs, electrical work, and law clerking, as his license to practice law had

been suspended since 2010.               He actually had been eligible to seek

reinstatement of his license since 2011, but he claimed he could not afford

the approximately $4,500 in costs and fees necessary to accomplish

reinstatement.2

       Near the conclusion of the hearing, the Orphan’s Court summarized

the frustration of DiGiovanni’s chronic failure to make regular payments

despite every appearance that he possessed the ability to earn more income

than he was earning:

       THE COURT: Okay. The conundrum for me, Mr. DiGiovanni, is
       you have never denied, at least not recently, that you owe the
       money, that it should be coming in on a regular basis and that
       you need to be working in order to do that, and then the wheels
       fall off, and frankly I am not inclined to keep awarding counsel
       fees, it’s just not – there comes a point at which it is completely
       counterproductive.

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2
   Given the suspension of DiGiovanni’s law license and his election not to
seek its reinstatement, we disapprove of his use of the title, “Esquire,” in his
filings with this Court.



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     On the other hand, I have not found the approach or the
     sanction that seems to really work and seems to be the
     motivation that there tended to be in order to have you make
     payments that you’re called to make, which payments, by the
     way, were a tremendous break from the lump sum that was due,
     and I recognize that.

     I mean, receiving a $500 a month [obligation] over time when
     the principal amount is somewhere in the $28,000 range, that a
     long time it’s going to take, but I want the Demkos to be made –
     the estate to be made whole, if at all possible.

     We have been through a lot. We’ve been through bankruptcy,
     we’ve been through cyclical inability to obtain any kind of work,
     and I think one of the frustrations, Mr. DiGiovanni, is that you do
     a pretty darn good job of putting together information for the
     Court when push comes to shove. Your exhibits are clear, your
     tax return’s clear.    I mean, I know that’s a program, but
     nonetheless, you work with attorneys who find your work
     sufficiently good that they’re willing to have you come back and
     do more for them.

     …

     So obviously you’re capable, the question is now how do we turn
     that into something that gets you out of my courtroom, out of
     my hair, out of their hair and gets you out from under this
     obligation, and I’m listening for suggestions at this point because
     counsel fees haven’t done anything.

N.T. 4/18/15 at 195-97. The court later declared that it did not “have any

questions really at this point that Mr. DiGiovanni’s in continuing contempt.”

N.T. at 202.

     Counsel for Appellee then suggested the option of a civil contempt

Order with a conditional jail sentence giving the contemnor the opportunity

to purge the contempt and avoid the sentence by compensating Appellee

with payment of a designated amount based on his present ability to pay.

N.T. at 197. Counsel reminded the Court that its predecessor in this case,

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J-A08041-17



Judge Ott, ordered the incarceration of DiGiovanni on similar terms, and he

managed to come up with the necessary funds at that point to purge his

contempt. Counsel posited that DiGiovanni does not take his obligation to

the Estate seriously and believes he can “talk his way out of just about

anything.” N.T. at 198. He therefore asked the court to impose the sanction

of civil contempt incarceration with a purging condition.

      DiGiovanni immediately opposed the suggestion, arguing that the

option is exclusive to matters involving contempt of child support Orders.

Counsel for Appellee Estate cited a case authorizing the mechanism to

enforce compliance with an agreement, but the Court noted that the statute

relied upon in that case was also found in the Divorce Code.

      The Court then commented on how DiGiovanni’s obvious skill in

practicing law only reinforces its belief that more needed to be done to

motivate him into meeting his obligations:

      THE COURT: I find your acumen remarkable, Mr. DiGiovanni. I
      mean, I have lawyers who practice in front of me all the time
      who wouldn’t have thought right off the bat that that isn’t
      actually authorized by the support laws that were – I mean, you
      know, not that anybody’s ever [decided in this respect], but
      you’re no dummy, okay, so it appears you’ve got acumen,
      you’ve got skills.

N.T. at 203. With that observation, the court found it reasonable to insist

that DiGiovanni expand his paralegal/clerking services—if he will not seek

reinstatement to the bar—and use the proceeds to pay off this debt at the

rate of $500 a month consistent with the prior Order. N.T. at 204-205. The



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court also noted the display of “help wanted” signs in town if DiGiovanni was

in need of additional work, regardless if it was not commensurate to his

education, to meet his obligations.

      The Court concluded by giving DiGiovanni 10 days to submit authority-

based argument that civil contempt incarceration was unauthorized in this

context. The record is silent on whether DiGiovanni filed a submission with

the Court.

      On December 18, 2015, the Orphan’s Court entered an Order based on

its findings from the April 28, 2015, hearing. The Order found DiGiovanni in

“continuing contempt” for failing to make payments as directed in the

previous Orders, placed him on “probation,” and stated that the terms of

said probation required DiGiovanni to pay $1,000 by January 5, 2016, and

thereafter pay $500 by the 21st day of each month, starting in February.

Failure to comply with these terms, the Order instructed, may result in the

imposition of fees, costs, and fines, as well as the issuance of a bench

warrant for DiGiovanni’s commitment to Chester County Prison for 3 months

or until such time as he purges his contempt by remitting all payments

missed between the December 18, 2015, date of the Order and the date of

the bench warrant.

      DiGiovanni filed exceptions to the Order, but the court denied his

exceptions on February 3, 2016. This timely appeal followed.

      In all, Appellant DiGiovanni raises numerous issues to support two

overarching themes in his appeal positing that evidence of his contempt was

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J-A08041-17



lacking and the December 18, 2015, Order imposed unlawful criminal

contempt sanctions.        As explained below, we disagree with DiGiovanni’s

positions, as we find ample evidence of his continuing contempt of the

court’s prior Orders and conclude that the court’s contempt Order aimed to

compel compliance by setting forth an appropriate purging condition

carefully measured in accordance with testimonial evidence relating to his

present ability to pay.        The purging amount, thus, did not represent a

modification of the prior Orders and amounted to only one month’s worth of

arrearages tacked on to the scheduled December 21, 2015, payment that

was nearly due. DiGiovanni had failed to pay regularly under the prior Order

for eight years.        We likewise reject DiGiovanni’s suggestion that the

imposition of probation within the Order constituted a de facto criminal

punishment unauthorized by 42 Pa.C.S.A. §§ 4132 and 4133.3
____________________________________________


3
    Sections 4132 and 4133 provide, respectively:

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

           (1) The official misconduct of the officers of such courts
           respectively.

           (2) Disobedience or neglect by officers, parties, jurors or
           witnesses of or to the lawful process of the court.

           (3) The misbehavior of any person in the presence of the
           court, thereby obstructing the administration of justice.

42 Pa.C.S.A. § 4132;
(Footnote Continued Next Page)


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              The power to punish for contempt, including the power to
      inflict summary punishment, is a right inherent in the courts and
      is incidental to the grant of judicial power under the Constitution.
      Colbert v. Gunning, 533 A.2d 471, 472 (Pa.Super.1987). The
      court may order civil or criminal contempt.

      The characteristic that distinguishes civil from criminal contempt
      is the ability of the contemnor to purge himself of contempt by
      complying with the court's directive.          If he is given an
      opportunity to purge himself before imposition of punishment,
      the contempt Order is civil in nature. If the purpose of the Order
      is to punish despite an opportunity to purge, the Order is
      criminal in nature. Id.

                       _______________________
(Footnote Continued)


      Except as otherwise provided by statute, the punishment of
      commitment for contempt provided in section 4132 (relating to
      attachment and summary punishment for contempts) shall
      extend only to contempts committed in open court. All other
      contempts shall be punished by fine only.

42 Pa.C.S.A. § 4133.

     In Stewart v. Foxworth, 65 A.3d 468 (Pa.Super. 2013), this Court
recognized that

      [v]iolations of section 4132 are viewed as criminal contempt. To
      find direct criminal contempt:

          There must be proof beyond a reasonable doubt of (1)
          misconduct; (2) in the presence of the court; (3)
          committed with the intent to obstruct justice; and (4)
          that obstructs the administration of justice. Misconduct is
          behavior that is inappropriate to the role of the actor.
          Wrongful intent will be found where the contemnor knows
          or reasonably should be aware that his conduct is
          wrongful.

Id. at 471-72.




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J-A08041-17


      A court may exercise its civil contempt power to enforce
      compliance with its Orders for the benefit of the party in whose
      favor the Order runs but not to inflict punishment. Id. A party
      must have violated a court Order to be found in civil contempt.
      [Goodman v. Goodman, 556 A.2d 1379, 1391 (Pa.Super.
      1989)]. The complaining party has the burden of proving by a
      preponderance of evidence that a party violated a court Order.
      C.R. by the Guardian of her Estate, Dunn v. The Travelers,
      626 A.2d 588, 592 (Pa.Super. 1993).

      However, a showing of non-compliance is not sufficient in itself
      to prove contempt. Wetzel v. Suchanek, 541 A.2d 761, 762
      (Pa.Super. 1988). If the alleged contemnor is unable to perform
      and has in good faith attempted to comply with the court Order,
      contempt is not proven. Id. (emphasis in original). The alleged
      contemnor has the burden of proving the affirmative defense
      that he has the present inability to comply with the court Order.
      Commonwealth ex rel. Ermel v. Ermel, 469 A.2d 682, 683
      (Pa.Super. 1983). A court cannot impose a coercive sentence
      conditioned on the contemnor's performance of an act which is
      incapable of performance. Crozer–Chester Medical Center v.
      Moran, 560 A.2d 133, 137 (Pa. 1989).            To impose civil
      contempt the trial court must be convinced beyond a reasonable
      doubt from the totality of evidence presented that the contemnor
      has the present ability to comply with the Order. Wetzel, 541
      A.2d at 764.

Sinaiko v. Sinaiko, 664 A.2d 1005, 1009 (Pa.Super. 1995) (internal

quotation marks and parallel citations removed).      See also Orfield v.

Weindel, 52 A.3d 275, 278–279 (Pa.Super. 2012) (“The purpose of a civil

contempt Order is to coerce the contemnor to comply with a court Order.”);

and Markey v. Marino, 521 A.2d 942, 945 (Pa.Super. 1987) (recognizing

only civil contempt must contain “conditions on the sentence so as to permit

the contemnor to purge himself; he must be allowed to carry the keys to the

jail in his pocket.”).




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J-A08041-17



        First, as for the alleged lack of evidence to support the court’s Order,

we note that the record of the April 28, 2015, evidentiary hearing shows that

the Orphans’ Court carefully assessed DiGiovanni’s testimony relating to his

present ability to meet his $500 monthly obligation.       In the court’s view,

DiGiovanni possessed enviable legal acumen making him quite capable of

earning enough money, but either his motivation or desire to do so was

lacking or he was not being entirely forthright in reporting his income, as

evidenced by DiGiovanni’s admission to receiving cash payments for certain

jobs.    We find no abuse of discretion in this determination, as the record

supported it and this Court made similar findings in our disposition of

DiGiovanni’s direct appeal in 2013.

        As for whether the “probationary” mechanism within the Order

reflected a criminal rather than a civil measure, several aspects to the

mechanism are insightful.     First, the Order clearly incorporates all findings

from the April 28, 2015, evidentiary hearing, and these findings, as noted

supra, include the court’s determination that DiGiovanni had the present

ability to pay the purging condition. In this regard, moreover, the purging

condition amounted only to an initial payment of one months’ arrearage plus

an upcoming scheduled $500 monthly payment, to be followed by the

resumption of the prescribed $500 per month payment schedule in the

ensuing month. In this respect, the clear purpose of the Order was not to

punish DiGiovanni but, instead, to compel obedience to the prior Orders and




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J-A08041-17



compensate        Appellee      Estate   for     injuries   resulting   from   DiGiovanni’s

continuing noncompliance.4

       Second, although the Order’s use of the term “probation” may facially

suggest a criminal sanction, the probationary mechanism within the Order is

clearly   civil    in    that    it   simply      acknowledges      DiGiovanni’s      chronic

noncompliance with the prior Orders and otherwise conforms to the

requirement that DiGiovanni, as a civil contemnor, be subject to a purging

amount that is within his ability to pay. As noted above, we have found the

record to support the court’s conclusion that DiGiovanni possessed the

present    ability      to   comply      with     the   December        18,   2015,   Order.

Concomitantly, DiGiovanni produced no evidence creating a reasonable

doubt that he lacked the present ability to comply with the Order.

       The Order in question also addresses potential obligations in the event

DiGiovanni fails to comply with the terms of his present “probation.” While

the Order directs that noncompliance “may result in the imposition of fees,

costs, and fines” as well as commitment to jail subject to release upon

payment of a purging amount, it is undisputed that the court imposed none

of these measures as of the date of DiGiovanni’s notice of appeal. It is well-

settled that “until sanctions are actually imposed, an Order declaring a party
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4
  It is for this reason, as well, that we conclude the court did not modify the
terms of the prior Order through its Order of December 18, 2015, but simply
exercised its power to enforce compliance with active prior Orders in the
wake of DiGiovanni’s intractable refusal to do so.



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in contempt is interlocutory and not appealable.” See Rhoades v. Pryce,

874 A.2d 148, 151 (Pa.Super. 2005).          Thus, we decline to address this

aspect of DiGiovanni’s claim that the Order imposed criminal sanctions.

      As we have determined that the court’s December 18, 2015, Order

was civil, not criminal, in nature, we reject DiGiovanni’s claims charging

error with the court’s noncompliance with Sections 4132 and 4133 of Judicial

Code, which apply exclusively to orders imposing summary punishments for

contempts of court.

      The record, therefore, belies DiGiovanni’s contentions that the court

acted without evidentiary support, unlawfully modified the terms of its prior

Order, and imposed criminal contempt sanctions.         The court entered its

December 18, 2015, Order consistent with its authority to compel obedience

to a prior Order and to compensate Appellee Estate for injuries sustained

because of DiGiovanni’s chronic nonpayment.       Because the sanctions were

tailored to DiGiovanni’s ability to comply, they were strictly civil in nature

and, thus, outside the ambit of Sections 4132 and 4133.

     Order is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017



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