J-A14018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DIANA L. SWISHER                              IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

ROBERT C. KEMMERER

                        Appellant                  No. 1967 MDA 2013


Appeal from the Order and Judgment of Sentence Entered October 17, 2013
             In the Court of Common Pleas of Franklin County
                Domestic Relations at No(s): DRS 1999-675
                         PACSES NO. 631101412


KATHLEEN                                      IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

ROBERT C. KEMMERER

                        Appellant                  No. 1968 MDA 2013


Appeal from the Order and Judgment of Sentence Entered October 17, 2013
             In the Court of Common Pleas of Franklin County
              Domestic Relations at No(s): DRS 2006-00915
                         PACSES NO. 875108741

BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                     FILED SEPTEMBER 16, 2014

     Appellant, Robert C. Kemmerer, appeals from an October 17, 2013

order and judgment of sentence holding him in civil and criminal contempt.

We affirm.

     The trial court summarized the relevant facts as follows:

* Retired Senior Judge assigned to the Superior Court.
J-A14018-14



     The current appeal arises from two long[-]standing support
     orders, one issued on April 2, 2008 for K
     another issued on March 19, 2009 for Diana Swisher. The April
     2, 2008 [o]rder directed Appellant to pay $216.66 per month in
     arrears for the support of his dependents(s), and as of May 1,
     2013, Appellant had accumulated arrearages of $10,316.02.
     The March 19, 2009 [o]rder directed Appellant to pay $181.17
     per month plus $21.73 per month in arrears for the support of
     his dependents(s), and as of May 1, 2013, Appellant had
     accumulated arrearages of $5,097.50. Prior to this appeal,
     Appellant has been held in contempt several times for his
     perpetual failure to pay.

     The most recent [p]etitions for [c]ontempt filed on May 1, 2013
     and August 26, 2013 are implicated in this appeal. On May 1,
     2013, two [p]etitions were filed (one in each case) ordering
     Appellant to appear in court on June 6, 2013 at 1:00 p.m. in the
     assigned courtroom for a contempt hearing, and notifying
     Appellant that if he failed to appear, a bench warrant would be
     issued for his arrest. Appellant in fact did fail to appear and the
     [c]ourt issued a bench warrant in each case on June 13, 2013.

     Appellant was apprehended and attended a bench warrant
     hearing on August 26, 2013. The [c]ourt continued the hearing
     until September 12, 2013, when a full evidentiary hearing could

     Therefore, on August 26, 2013, [p]etitions for contempt were
     again filed in both cases, directing Appellant to appear in court
     on September 12, 2013 at 1:00 p.m. in the assigned courtroom
     for a hearing. The [p]etitions informed Appellant that if he failed
     to appear, a bench warrant would be issued for his arrest. Also
     on August 26, 2013, via a [d]omestic [r]elations [d]etainer, the
     [c]ourt detained Appellant until his September 12, 2013 hearing
     and conditioned his release upon payment of $600[.00.]
     Appellant was subsequently released after making the $600[.00]
     payment to the [d]omestic [r]elations [s]ection.

     On September 12, 2013, Appellant again failed to appear at the
     noticed and scheduled hearing, and bench warrants were issued
     for his arrest on September 17, 2013.             Appellant was
     apprehended and brought before the [c]ourt for a bench warrant
     hearing on October 17, 2013. In the interest of judicial economy
                                           ling to attend scheduled

                                    -2-
J-A14018-14


       proceedings, the [c]ourt held a joint contempt hearing on


       in each case. After conducting the hearing, the [c]ourt found
       Appellant in contempt and sentenced him to 180 days
       incarceration, work release eligible, for his failure to appear on
       June 6, 2013, and September 12, 2013. The [c]ourt also
       sentenced Appellant to an additional, consecutive, 120 day
       sentence with a purge amount of $500.00 in each case


       findings.

Trial Court Opinion, 12/11/13, at 2-4 (record citations omitted).1



       Whether the bench warrant court failed to provide Appellant with
       all of the essential procedural safeguards that attend criminal


       days    imprisonment?


       is, in reality, a criminal contempt sentence and should be
       vacated because the court failed to afford Appellant all of the
       essential procedural safeguards that attend criminal proceedings


       Whether the imposition of a civil contempt sentence, which has
       as one of its purge conditions, the condition of serving a
       consecutive jail sentence prior to being eligible to purge himself
       of civil contempt, or obtaining employment, violates the rule
       prohibiting a court from imposing purge conditions on a civil

                                    y?


____________________________________________


1
  Both parties and the trial court have complied with the requirements of
Pa.R.A.P. 1925.




                                           -3-
J-A14018-14


       We have carefully examined the submissions of the parties, the

opinion of the trial court, and the certified record on appeal. Based upon our

review, we are satisfied that Appellant is not entitled to relief for the reasons




has adequately and accurately addressed each of the claims Appellant raises

on appeal.2     Therefore, we direct the parties to include a copy of the trial


____________________________________________


2

constituted indirect criminal contempt. See Trial Court Opinion, 12/11/13,
at 8
as Appellant outright failed to appear in court. Instead, Appellant violated

quotation marks omitted).

We

misconduct of a person in the presence of the court, or so near thereto to
interfere with its immediate b            Commonwealth v. Patterson,
308 A.2d 90, 92 (Pa. 1973). A litigant who defies an order to appear in
court may be held in direct criminal contempt. See Commonwealth v.
Ferrara, 409 A.2d 407, 411 (Pa. 1979) (appellants brought to court under
bench warrants were held in direct criminal contempt for failure to appear
for either arraignment or trial); Commonwealth v. Edwards, 703 A.2d
1058, 1060 (Pa. Super. 1997) (failure to appear in court as required by
previous court proceedings may be considered act of direct criminal
contempt when defendants were finally brought to court). In view of these

proceedings pursuant to the orders issued by the trial court constituted
direct criminal contempt.

Although we have re-
transgression, we conclude that the trial court correctly found Appellant to
be in criminal contempt of court. Pennsylvania trial courts possess an
(Footnote Continued Next Page)


                                           -4-
J-A14018-14


                       _______________________
(Footnote Continued)

inherent power to impose punishment for contempt of court. This power is
memorialized in the Judicial Code, which provides:

      § 4132. Attachment                and      summary   punishment   for
      contempts

      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. To demonstrate contempt where it has been alleged
that a party disobeyed legal process issued by the court in violation of
§ 4132(2), the following elements must be established:

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

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

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

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

Commonwealth v. Pruitt, 764 A.2d 569, 574 (Pa. Super. 2000)
(quotations and citations omitted).     Here, the trial court found ample
support for each element of this four-
contention that the trial court deprived him of his procedural rights. See
Trial Court Opinion, 12/11/13, at 8-11. Hence, we fully adopt the trial




                                            -5-
J-A14018-14




appeal.

     Order of civil contempt affirmed.    Judgment of sentence for criminal

contempt affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2014




                                    -6-
                                                                                     Circulated 08/21/2014 02:23 PM




                IN 1m COURT OF dOMMON PLEAS OF THE 39                    TH
                                                                              JUDICIAL
              DISTRICT OF PENNSYLYANlA - FRANKLIN CO~TTY BRANCH
                              Domestic Relations Section,

 Kathleen M. O'Connor,                                 Civil Action - Law In Support
             Plaintiff
                                                       No. DRS 2006-00915
                          v.
                                                       PACSES Case No. 875108741
 Robert C. Kemmerer,
             DefendantlAppellant
                                                       Honorable Carol L. Van Horn,

               IN THE COURr OF COMMON PLEAS OF THE 39 TH' JUDICIAL
              DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
          •    ,~~ ,,-, ~_n,
                          -   Domestic Relatitm.f'S.ection ,__ ,______ n_ -~-- __________ -
                                 -                                                            _n_   --




 Diana L. Swisher,                                     Civil Action - Law In Support
              Plaintiff

                          v.
Robert C. Kemmerer,                                    PACSES Case No. 631101412
            Defendant
                                                       Honorable Carol L. Van Horn




                   OPINION sur Pa.R.A.P. 1925(a) At'lD ORDER OF COURT




Before VanHorn, J:
                                                                                                                                                                               Circulated 08/21/2014 02:23 PM

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                                                                                                                                                                                       ". t                  -: .. '
                                                                IN   THE
                                                                      COURT OF COMMON PLEAS OF THE 39Tll J(J))IClAL .
                                                               DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
                                                                                             Domestic Relations Section

                                                 Kathl~n      M. O'Connor,                                                     Civil Action,:"" Law In Supp.ort '
                                                                 Plaintiff
                                                                                                                               No. DRS 2006~00915
                                                                            v.                                                                                             <   .

                                                                                                                               PACSES Case No. 875108741
                                                 Robert C. Kemmerer,
                                                             Defendant!Appellant
                                                                                                                               Honorable Carol L. Van HOI'll

                                                                IN THE COURT OF CUMMON PLEAS OF THE 39m JUDICIAL
                                                               DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
                                                             .. ----~--·-··--·----···-.:.·-··DQmestiC_Relatinn !c_'_'s""eCL4ti'o<nn~·~_--_-·~-·_··__"__--_.~_-._--__----"_ _ _ _ _ _ _~
                                                                                                               ....         ....                     ..          ... ..

                                                Diana L. Swisher,                                                              Civil Action - Law In Support
                                                             Plaintiff
                                                                                                                               No, DRS 1999-00675
                                                                            v.

                                               Robert C. K~mmerer,                                                             PACSES Case No. 631101412 .
                                                            Defendant
                                                                                                                               Honorable Carol L. Van Horn

                                                                                       STATEMENT Ol THE CASE

                                                           Appellant, Robert C. Kemmerer, is appealing two contempt findings arising                                                               frOID        two

                                              different support proceedings involving plaintiffs Kathleen M. O'Connor and Diane L. Swisher.

                                              As the Superior Court has consolidated both cases, we will address them together. At an October

                                              17,2013 hearing, Appellant was found in contempt for failing to appear as ordered on September·

                                              12, 2013 and June 6,2013,1 Appellant was also found in contempt for failing to pay court

                                              ordered. child support or complete employment s~arch forms? . Appellant filed a Notice of

                                              Appeal on October 28, 2013, and a Concise StateIp.ent of Errors Complained of on Appeal




                                              I Order of Court, Oct. 17, 2013.
                                              2Id.        .

                                                                                                                         1
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                             ['Statement") on November 18, 2013, In his Statement, Appellant raises two issues with respect

                            to the Court's contempt findings: 3

                                           1. The Court committed an abuse of discretion and an'crror of law by denying Appellant

                            the full panoply of rights attendant to a criminal offenseJ specifically) but not limited to, notice,

                            time to prepare a defense, meaningful assistance of counsel.

                                          2. The court [sic] entered a sentence for civil contempt. Appellant did not have the .

                            present ability to comply with the conditions imposed by th,e court to plU'ge himself of civil

                            contempt, specifically, the court imposed financial conditions which the court elToneously

                            neglected to detemrine beyond· a reasonable- doubt that Appellant had the present ability to

                            comply. Also) by imposing a consecutive civil contempt sentence, the court, by definition,

                           preCluded Appellant the ~'present ability"                                          to purge himself of contempt until after the expiration
                           oftbe preceding sentence,

                                        The ColUt now responds to Appellant's Statement though this Opinion and Order

                           pUrsuant to Pa,R.AP. 1925(a).

                                                                                                          BACKGROUI\"J)

                                       The current appeal arises from two long standing support orders, one issued on April 2,

                           2008 for Kathleen O'Connor,4 and another issu;ed on March 19,2009 for Diana Swisher,S The

                          April 2, 2008 Order directed Appellant to pay $216.66 per month in arrears for the support of his

                          dependent(s), and as of May 1,2013, Appellant had accumulated Rnearages of $10,316.02. 6 The

                          March 19, 2009 Order directed Appellant to pay $181.17 per month plus $21.73 per month in
                                                         .               . .


                          alTears for the support of his dependent(s), and as of May 1, 2013, Appellant had accumulated
                                    .                                                                                                           ,                    .




                                                                                                                 "
                          ) Concise Statement ofMatte~ Complained of on Appeal, Nov. 18.2013.
                          ~ Petition for Contempt - Defendant, Kathleen M. O'Connor, May 1, 2013.
                          j Petition for Contempt ~ Defenrumt, Diana L. Swisher, May 1,2013.

                          6 Petition for Contempt - Defendant, ~athleen M O'Connor, May 1,2013.


                                                                                                                      2
                                                                                                                                                          Circulated 08/21/2014 02:23 PM

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                 arrearages of $5,097.50,7 Prior to tills appeal, Appellant has been held in ~ontempt se~eral times

                 for his perpetUal failme to pay.

                         The most recent Petitions for' contempt filed on May 1) 2013 and August 26, 2013                                                                       are
                 implicated in this appeal. .on May 1, 2013, two Petitions were filed (one in each case) ordering

                 Appellant to appear in court on June 6, 2013 at 1:00 p,m. in the assigned courtroom for a

                 contempt hearing, and notifying Appellant that if he failed to appear, a bench warrant would 'be

                 issued for his an·est. 8 Appellant in fact did fail to appear and the Court issued a bench warrant in

                 each case on Jlme 13,2013. 9

                        Appellant was apprehended and                     att~nded       a bench warrant hearing on August 26, 2013.

             The Court continued the hearing ~til September 12,2013> when a full evidentiary hearing could

             be held on Appellant's failure to appear on June 6, 2013. 10 Therefore, on August 26. 2013,

            . Petitions for contempt were again filed in both cases, directing Appellant to appear in court on

             September 12, 2013 at 1;00 p.m. in the ~signed courtroom for a hearing. ll The Petitions

             informed Appellant that if he failed to appear, a bench warrant would be issued for his arrest. 12

             Also on August 26,2013, via a Domestic Relations Detainer, the Court detained Appellant witil

            his September 12, 2013 hearing and conditioned his release upon payment of $600, 13 Appellant

            was subsequently released after making the $600 payment to the Domestic Relations Section. 14




            7 Petitionfor  Conwrnpt - Defendant, Diana L. Swisher, May 1,2013,
            8 Petition for Contempt - Defendant, Diana L. Swisher, May 1,2013; Petition for Contempt - Defendant, Kathleen
            M. O'Connor, May 1,2013 [hereinafter referred together as "Petitions for Contempt, May 1,2013"),
            9 Bench Warrants - Defendllnt, June 13,'2013,           .      .
            10 Tr. of Proceedings of Bench Warrant and Contempt Hearing, October 17,2013, at 2; Domestic Relations
            Detainer, August 26, 2013.                                                             .           ..
            II Petition for Contempt - Defendant, Diana L, Swisher, Aug. 26, 2013; Petition for Contempt - Defendant, .
            Kathleen M. O'Connor, Aug. 26, 2013 [hereinafter referred together as ''Petitions for Contempt, Aug, 26, 2013"],"
            ~U                                       ' . . '                                                                                              .
            13   D~mestic<Re]atfo~s petainers, August 26, 2013.                     .                                                                         .
            14   Orders of Court, September 9,20.13; Tr. of Proceedings of Bench Warrant and Contempt Hearing, October 17,
            20)3, at 2 . '                                                                                      .

                                                                                    3
                                                                                     Circulated 08/21/2014 02:23 PM




            On September 12, 2013,     Appe~t again failed to appear at'the noticed and scheduled

     hearing~ and bench warrants were issued forhlsarrest on September 17> 2013. 15 Appellant was

     apprehended and brought before the Court for a bench warrant hearing on O~ober 17, 2013. In

     the interest of judiCial economy and Appellanfs proven history of failing to attend scheduled

 proceedings, the Court held a joint contempt hearing on Appellant's failure to appear on June 6,

 2013 and September 12,2013, and Appellant's failure to comply with the support ordeIs in each

 case. 16 After conducting the hearing, the Court found Appellant in contempt and sentenced him

 to 180 days incarceration., work release eligible, fOl' his failure to appear on June 6, 2013, and

 September 12, 2013. 1? The Court also sentenced Appellant to an additional, consecutive, 120

 day sentence with a purge amount of $500.00 in each case ($1,000 total) for Appellant's failure

 to comply with the support orders: l g Appellant has appealed the Court~s contempt findings.

                                              DISCUSSION

 I. Standard of Review

           Our appellate courts have a 'narrow scope of review when examining an appeal of a

contempt order and will only reverse upon an abuse of discretion. Hyle v. Hyle, 868 A.2d 60 l,

604 (pa. Super. 2005) (citing Diamond v. Diamond, 792 A.2d 597, 600 (Pa. Super. 2002)). "The

court abuses its discretion if it misapplies the law or exercises its discretion in a manner lacking

reasolL" [d. (citing Lachat v. Hinchcliffe, 769 A.2d 481. 487 (pa. Super. 2001»). An appellate

cOurt "must place great reliance on the sound discretion of the trial judge when reviewing an

,order of contempt." ,Godfrey v. Godfrey, 894 A.2d 776, 780 (Fa. Super. 2006) (quotlllg Rhoades

v. Plyce, 874 A2d 148, 153 (Pa. Super. 2005».


15 Bench  Warrants - Defendant, Sep~em'oer 17,2013.'          ,
16 Tr.of Proceedings of Bench Warrant and Contempt Hearing, October 17,2013, at 4.
11 Order of Court, October 17,2013.
IE   Id,              '

                                                      4
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                              II. The Court did not err or abuse its discretion

                                            a. Appellant IS beld in criminal and civil contempt

                                            Appellant first asserts that the Court erred and abused its discretion by denying Appellant

                             the full panoply of rights attendant to a criminal offense such as nouce, time to prepare a

                             defense, and meaningful assistance of counsel. AppellanCs contempt arises from two support

                             actions. Punishment for contempt in support actions is governed by 23 Pa.C.s. § 4345 (failure to

                             pay) and 23 Pa.C.S, § 4344 (failure to appear). To address this issue fully, we must first exaIillne

                             whether Appellant's contempt is civil or criminal. H\\l"hether a particular order contemplates

                             civil or criminal contempt is imperapve because each classification confers different and distinct

                            procedural rights on the contemnor." Warmkessel v. He.fJher, 17 A.3d 408, 414 (pa. Super.

                            2011) (citing Lachat 769 A.2d at 487).

                                                                Civil contempt has as its dominant pmpose to enforce compliance
                                                                with an order of COUlt for the benefit of the' party in whose favor
                                                                the order runs. while criminal contempt has as its dominant
                                                                purpose, the vindication of the dignity and authority of the court
                                                                and the protection of the interest of the general public. This
                                                                distinction between civil and criminal contempt is 'important
                                                                because the type of contempt being punished will detennine the
                                                                manner in which the contempt is to be adjudjcatcd as well as the
                                                                punishlllent which may be Jinposed. It must be noted that the
                                                                characteristic that distinguishes civil from criminal contempt is the
                                                                ability of the contemnor to purge himself of civil .contempt by
                                                                complying with the court IS dtl'ecttve.·                     .

                           Godfrey, 894 A.2d at 782 (citations omitted) (emphasis added). Civil contempt orders have a

                           remedial purpose and are design,ed to compel an individu'al to comply with a oourt order. See

                           Hyle, 868 A.2d at 604 (citing Gunther v. Bolus. 853 A.2d 1014. 1016 CPa. Super. 2004».

                                                                 The factors generaUy said to point to a civil contempt are these: (1)
                                                               . [w)here the complainant is a private person as opposed to the
                                                                 government (,>r a governmental agency; (2) where the proceeding is
                                                                 entitled in the original,,, aotion and ftled as a continuatioo·tl1ereof
                                                                 as opposed to a separate and independent action; (3) where holding
                                                                the [respondent] in contempt affords relief toa private party; (4)
                                                                                                                         5
                                                                                                                                                                                Circulated 08/21/2014 02:23 PM

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                                                          where the relief requested is primarily for the benefit of the
                                                          complainant; and (5) where the acts of contemp~ complained of ar~
                                                          primarily civil in character and do not of themselves coristitute
                                                          crimes or conduct by the [respondent] so contumelious that the
                                                          court is impelled to act on its own motion.

                         Warmkessel) 17 AJd at 414 (citations omitted) ..

                                      We now turn to the Court's specific contempt findings. First,                                                                 Appellan~   failed to appear

                        twice at noticed hearings on June 6) 2013 and September 12, 2013. Therefore, on October 17,

                        2013, pursuant to 23 Pa.C,S. § 4344) the Court entered an order fInding Appellant in contempt
                              .                 .

                        and sentenced him to 180 ~ays incarceration, work release eligible, § 4344 states:

                                                        A person who willfully fails or refuses to appear in response to a
                                                        duly served order or other process under this chapter may, as
                                                        prescribed by general rule, be adjudged in contempt. Contempt
                                                        shall be punishable by anyone or rome of the following: (1)
                                                        Imprisomnent for a period not to exceed six months. (2) A fine not
                                                        to exceed $500. (3) Probation for a period not to exceed six
                                                        months.

                       23 Pa,C.S. § 4344.                                  Second, Appellant failed to pay court mdered support or complete

                       employment search                            fOilllS     and was held in contempt pursuant to 23 Pa:C.S. § 4345. § 4345

                       states:

                                                       (a) General rule.-A person who willfully fails to comply with any
                                                       order under this chapter, ·except an Older subject to section 4344
                                                       (relating to contempt for failure of obligor to appear), may, as
                                                       prescribed by general rule, be adjudged in contempt. Contempt
                                                       shall be punishable by 'any one or more of the following: .
                                                       (1) .Imprisonment for a period not to exceed six months,.
                                                       (2) A fme not to exceed $1,000.
                                                       (3) Probation for a period not to exceed one year.
                                                       (b) Condition for release.--An ordor committing a defendant to jail
                                                       under tbis section shall specify the condition the fulfillment of
                                                       which wil~ result in the release ofthe obligor.

                      23 Pa.C.S. § 4345. Appellant was sentenced to a consecutive te1ID of 120 days with a purge

                      amount of$500.00 for both of his caseS ($1 ,000 total).··



                                                                                                                           6
                                                                                  Circulated 08/21/2014 02:23 PM




        Here, the most important element in determining whether Appellant is held in civil or

 criminal contempt is the·Court's selective application of a purge amOllilt. As noted above, "[tJhe

 characteristic that distinguishes civil from criminal contempt is the ability of the contemnor t9

 pmge hirr!self of contempt by complying with the. court's directive. U Colberf ·v. GUnning, 533

 A.2d 471, 472 (pa Super. 1987) (citing In re.Martorano, 346 A.2d 22 (pa, 1975); Janet D. v.

 Carros, 362 A.2d 1060 (pa. Super. 1976)). Therefore, Appellant is held in criminal contempt for

 his failure to appear because his sentence of 180 days incarceration is more of a punishment than

 a remedial measure and he was not afforded the ability to purge himself. See Fatemi v. Fatemi,

 537 A.2d 840, 845 (pa, Super, 1988) (citing In re Martorano, 346 A.2d 22, 29 (pa. 1975) ("a

contemnor who will be sentenced to a detenninate tenn of imprisonment ... which· he is

po\verless to escape by purging himself of his contempt, is entitled to the essential procedural

safeguards that attend criminal proceedings generally/').           The "dominant purpose)) of

Appellant's criminal contempt sentence is to vindicate the authority ofthe,court by reprimanding

him for his repeated non-compliance. Godfrey, 894 A,2d at 782.

       Alternatively, Appellant is held in civil contempt pursuantto his failure to comply with

the support orders and complete employment search forms because his incarceration is

conditioned upon the Court's imposition of $500.00 purge amOl.Ults. This contempt is clearly

civil because the   ~'dominant   purpose" of imposing a sentence conditioned on a purge payment is

"to COerce [Appellant] into compensating his children for the an'earages accumulated in the
                                  .                                         .


past. 1I Barrett v. Barrett) 368 A.2d 616, 619 (Pa. 1977). Additionally, ?p})l.ying the factors

entunerated in Warrnkessel v..HeJfoer~ Appellant is a private person, and holdi~ him in

contempt with the ability to purge himself affords relief to his childIen iflwhen he pays thepurge

amount. Also, the act of failing to pay child support or complete employment search forms is



                                                   7
                                                                                                                           Circulated 08/21/2014 02:23 PM

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                              pri.mRri1y civil in nature. Importantly, we note that Appellant's civil sentence runs after his

                             criminal sentence, and as of the date of this Opinion and Order, he is serving his sentence for

                             criminal contempt.

                                     b. Appellant was afforded the necessary rights and procedural safeguards

                                               i. Criminal contempt proceedings

                                    As noted above, Appellant argues that the Court erred' and abused its discreti on by

                            denying Appellant the full panoply of rights attendant to a criminal offense such as notice, 'time



                            was found to be in both criminal and civil contempt, we must now examine what procedural

                           rights, if any, he should have been afforded. Considering civil and crinllnal contempt, ueach has

                           its own distinct procedures and confers distinct procedural rights; the two may not be casually

                           comruing1ed/'         Barrett, 368 A,2d at 619 (citing Philadelphia Marine Trade Association v,

                           International Longshoremen IS Association, 140 A.2d 814 (Pa, 1958)).

                                    We will first address Appellant's criminal contempt fInding, Criminal contempt can be

                           either direct or indirect. See Commonwealth v. Moody, 46 A.3d 765, 772 (Fa. Super, 2012),

                           Direct contempt punishes conduct occurring in the "presence of the court, thereby obstructing the

                           administration of justice," Commonwealth v, Ashton, 824 A2d 1198, 1202 (Fa. Super, 2003)

                           (citing 42 Pa.C,S, § 4132(3»). Alternatively, "[a] ,charge of indirect criminal contempt consists

                           of a claim ,that a violation of an Order or Decree of court
                                     ....   ,                                        .
                                                                                                    OCCUlTed   outside the presence of the
                                                        ,                        '




                           court.," Moody, 46 AJd at 772 (citations omitted). Here, the behavior at issue did not DCcm in
                                                                  "                         -

                           the "presence of the court," as Appell~t outright "failed to appear in court. Instead, Appellant

                           violated court orders to appear and his contempt is therefore indirect.

                                            To establish it:idirect criminal contempt, the Commonwealth -must
                                            prove: 1) the Order was su~cielltly definite~ clear, and specific ~o


                                                                                                8
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                                                                                   the cOntemnor as to leave no doubt of the conduct prohibited; 2)
                                                                                   the contenmor had notice of the Order; (3) the act constituting the
                                                                                   violation Il)ust have been volitional; and 4) the contemnor must
                                                                                   have acted with wrongful intent.

                                         Commonwealth Y. Brumbaugh} 932 A.2d 108, 11 0 (pa. Super. 2007) (citing Ashton, 824 A.2d at

                                         1203). Indirect criminal contenlptprompts the need for "the essential procedural s~feguards that

                                         attend cr~al proceeclings generally.n Ingebrethsen)l. Ingebrethsen, 661 A.2d 403} 405(pa.

                                         Super. 1995) (citations omitted); see also Hyle) 868 A,2d at 606; Ashton, 824 A.2d at 1203.

                                         Adclitionally, gnil~ must. be found beyond a reasonable doubt Ashton, 824 A2d at 1203. We

t-------....;.im'et;tim
               m alty=-note1!iitl 'A-ppeff~fd--irm-fuive                                                                               'it   r1ght-to-a-jury~trlal ~becaciSe··te                                                                      did-no.....tUt. . . ·.f"<fa,..,.,c""e·-----
                                                                                                                                                                                                                                                                          .

                                         incarceration for Olore than six months. Commonwealth v. McMullen, 961 A.2d 842, 847                                                                                                                                      (pa.
                                         2008). We next turn to Appellant's argument that the Court denied Appellant his criminal rights

                                         such as notice, time to prepare a defense, and meaningful assistance of counsel. It is unclear

                                         what Appellant is claiming he did not have notice of, but there is no evidence to indicate that .

                                         Appellant did not have notice of the June 6,2013 and September 12,2013 hearings, and it was

                                     Appellant's failure to attend these hearings which prompted the Court's fineting of criminal

                                     contempt. In fact, the Petitions for contempt filed on May 1,2013 and August 26, 2013, gave

                                    Appellant clear notice of the date, time, and place of these hearings, informed him that he could

                                    be found in contempt if the court detennined he "willfully failed to comply with its order for

                                    sUpport," and explained to him that a bench wanant would be issued if he failed to appear.

                                   Turning to the September 12, 2013 hearing specifically, it was scheduled after Appellant was

                                   apprehended on a bench wanant and attended the hearing on August 26, 2013. FollOWing the

                                   August 26, 2013 hearing, notice of the September 1~, 2013 hearing was mailed to the jail as




                                                                                                                                             9
                                                                                              Circulated 08/21/2014 02:23 PM




 Appellant remained incarcenited. 19 Pursuant to his failure to attend the September 12, 2013

 bearing, a bench warrant was issued again and he was subsequently apprehended and brought

 before the Comi on October 17, 2013. At the Octo bet 17, 2013 hearing, Appellant's attorney

 infonned the Court that he failed to attend the September 12, 2013 hearing because he di"d not

 have a ride. 20 Appellant clearly knew about the September 12, 2013 hearing, yet chose not to

 attend.

           Next, addressing Appellant's concerns about his cowlSel not haviIig time to prepare a



 public defender at the October 17,2013 hearing. At the hearing, counsel verbalized his concerns

 over handling the contempt proceedings as he was only prepared to represent Appellant in the

bench warrant proceedings. 21 Despite counsel's apprehensions, the criminal contempt issue was

both simple and synonymous with the bench warrant issue because both concerned Appellant's

failure to appear. Counsel was experienced in criminal defense and capable of representing

Appellant competently and meaningfully. There was no need for discovery, witnesses, or the

resolution of any evidentiary issues. At the bearing, Appellant was offered an opportunity to

explain why he did not appear, and his explanatio~ that he did not have a ride was not sufficient

enough basis to excuse bis contempt. Appellant was in no way prejudiced as the same evidence

would have been considered by the Court bad the proceedings only resolved the outstanding

bench "WalTant.

           By failing to appear, Appellant was attempting to avoid the consequences of his fail:u-e to

pay. Such an act was volitional and intentionally wrongful.                   Appellant's history shows the



I~ Tr. of Proceedings of Bench Warrant and Contempt Hearing, October 17,2013, at 4; Petitions for Contempt, Aug.
26,2013"                         "
2ll 'fr. of Proceedings of Bench Warrant and ConttHnpt Hearing, October 17,2013, at 7.
2t Tr. of Proceedings of Bell ch Warrant and Qontempt Hearing, October 17> 2013.

                                                        10
                                                                                                                 Circulated 08/21/2014 02:23 PM

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                            numerous opportunities provided to him for compliance with court orders, and he hail been well

                            educated on the process., Overall, Appellant was satisfactorily provided with the procedural

                        , safeguards attendant to criminal proceedings generally.

                                           ii. Civil contempt proceedings

                                   For purposes of completion, we will also examine the process by which Appellant was

                            found in civil contempt to en1>'UI'e that he was afforded all necessary rights. Initially, even though

                            Appellant was represented at the hearing by a public defender, he was not entitled to counsel



                        Process Clause does not automatically require the provision of counsel at civil contempt

                        proceedings to an indigent individual who is subject to a child support order, even if that

                        individual faces incarceration (for up to a year.)"); See qlso Rittel v. Riffel, 485 A.2d 30, 34 n.5

                        (pa. Super. 1984). Therefore. the issues conceming Appellant's counsel are moot. Additionally,

                        Appellant was not entitled to a jury trial. See In re Martorano, 346 A.2d 22,31 (Pa. 1975).

                                   Traditionally, courts have followed a    five~step   process when holding an individual in

                        civil contempt. "1) a rule to show cause why an attaclunent-Should not issue, 2) an answer and

                        hearing. 3) rule absolute (arrest), 4) a hearing on contempt citation, and 5) an adjudication of

                        contempt." McMahon v. McMahon, 706 A.2d 350, 356 (pa. Super. 1998) (quoting Crislip v.

                        Harshman, 365 A.2d .. 1260. 1261 (pa. Super. 1976); Lowenschuss v, Lowenschuss, 470 A.2d

                        970, 973 (pa. Super. 1983), In support actions, the procedural requirements for civil contempt

                       proceedings are simplified and outlined in PemlSylvania Rule of Civil Procedure 1910.25.

                        Pursuant to Pa.R.C.P. 1910.25, upon an obligor's failure to comply with a support order. the

                       obligee may fIle a p~tition for civil.contempt or the domestic relations section shall fIle a petition

                       for civil contempt pursuant to the guidelines promulgated by the rule.                Pa.R.C.P. 1910.25



                                                                            11·
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                                   (a)(1)&(2).           The petition must begin with an order of court in the proscribed form, and

                                   specifically no.tify an obligor of the time and place of the hearing, that a warrant may be issued

                                   for his arrest if he fails to show, and that he may be held in contempt if the court determines he .

                                   Hwillfully failed to comply with its order for supp0l1. H Pa.R.C.P. 1910.25(b). Additionally,

                                                          (0) {t]he petition shall aver the facts alleged to constitute the failure
                                                          to comply vvith the support order. The petition shall set forth the
                                                          amount of SUppOlt alTearages, if any, as provided by the domestic
                                                          relations section. Unless specially ordered by the court, no answer
                                                          to the petition is required.
                                                          (d) The petitio~ shall be served upon the respondent .
                                                  . .. ._(L)._hy ordinary~mail with .the~reJllfn__addIess of th~Ldp.mestiQ_.
                                                          relations section appearing thereon; or".
                                                          (2) by any fonn of mail which requires the respondent to sign a
                                                         receipt; or
                                                         (3) oy a competent adult; or ...
                                                         (4) plU'suant to special order 0 f court
                                                         A respondent who attends the conference and/or hearing in person
                                                         shall be deemed to have been served.
                                                         (e) The court may issue a bench warrant as provided by Rule
                                                          1910.13-1 for failure bfthe respondent to appear.
                                                         (f) The respondent shall be advised in the OrderINotice to Appear
                                                         that his or her present ability to pay is a critical issue in the
                                                         contempt proceeding..The respondent shall be provided with
                                                         Income and Expense Statements to demonstrate financial ability to
                                                         pay. At the hearing, the respondent shall be provided the
                                                         opportunity to respond to any questions about his or her financial
                                                         status. The trier of fact shall issue an express finding that the
                                                         respondent does or does not have the present ability to pay.

                                 Pa.RC.P. 191O.25(c)(d)(e)&(f); see also Lowenschuss, 470 A2d at 973.

                                             After examining the contempt Petitions filed on May '1, 2013, they clearly conformed to

                                 Pa.RC,P. 1910.25. The Petitions were in order fonn and gave Appellant clear notice of the date,

                                 time, and place of the hearing, informed him that he could be found in contempt lf the court

                                 detennined he ~'~llfully failed to comply with its order for support," and explained to him that a

                                 bench warrant would be issued if he failed to appear. Despite this information in the Petitions,

                                 Appellant still did not appear at the. scheduled contempt hearing. There is' no doubt that all .

                                                                                                                               12
                                                                                     Circulated 08/21/2014 02:23 PM



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                                                     .   .   .

  required procedural steps were taken to put. Appellant on notice of his civil contempt

  proceedings.

         Once Appellant was apprehended a second time for his failme to appear on Septcmber

 12, 2013, the Court decided to hold his civil contempt hearing simultaneously with his bench

 warrant hearing and criminal contempt hearing because Appellant's attendance was guaranteed.

 Appellant was therefore afforded a hearing pursuant to Pa.R.C.P. 1910.25"5, which requires a

 hearing to be held to in~cel'ate an individual as a sanction for civil contempt in a support

__ ~~c:>~s.:. ~~~:.~:,~.P:_N?: }~.1_~>25-5C[nJo   respondent ~~be _iE-~~~~ated as a san.?~~!1 for

 contempt without an evidentiary hearing before a judge.''), We are confident Appellant was

 afforded all proper civil procedural safeguards and the Court did not commit error or abuse its

 discretion.

III. Appellant's civil contempt sentence was proper

        Second, Appellant argues that he does not have the present ability to purge himself, the

 Comi neglected to determine beyond a reasonable doubt whether he had the present ability to

comply, and two consecutive civil contempt sentences actually prevents Appellant from having

the "present ability" to purge himself.      '(To be fOlmd in civil contempt, a party must have

violated a court ·order/ I by a preponderance of the evidence as shown by the complaining party.

Godfrey, 894 A,2d at 782 (citations omitted). Then, the alleged contemnor can show that he is

presently unable to comply with the court order. Id Non-compliance is insufficient to prove

contempt because '~[i]f the alleged contemnor is unable to perform and has in good faith

attem,pted to comply with the court order) cot:J.tempt is not proven.;' Sinaiko v. Sinaiko, 664 A.2d

1005, 1009 (Fa. Super. 1995) .'(citations omitted).              "[T]he court, in imposing coercive

impriso~ent for civil contempt, s~ould set conditions fo1' purging the contempt and effecting



                                                   13
                                                                                             Circulated 08/21/2014 02:23 PM

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     release from imprisonment with which it is convinced beyond a reasonable doubt, from the

     totality Qfthe evidence before it, the contemnor has the present ability to· comply." Warmkessel.

     17 A3d at 415 (citations omitted).

            Appellant's substantial atrearage in both cases sufficiently supports our finding by a

     preponderance of the evidence that Appellant willfully violated the support orders and has not

     made· good faith attempts to comply. See Godfrey, 894 A.2d at 783, Upon tms finding, the

 Appellant had the opportunity to show that he was presently unable to comply, and. at his



 l.Ulemployed and I don't work. I really have no income.,,22 The Court asked Appellant how he
    .                                          .


 supports hi!I1self and he said, "I live with my fumily ... Every once in a while I'll do a side job

 tTy to help out ... ,,23 The Court asked him how many side jobs he had worked since June and he

 responded "none,,,24. Despite Appellant's statements that he was unable to comply, he had made

 a support payment in April, 2013, and made a $600.00 purge payment so he could be released

 fi'om incarceration in August, 2013. 25 The Court "did not find his testimony credible regarding

his lack of income since June of 2013, particularly in light oftlle purge payment of $600.00 that

was [recently] made:.26                 Examining the totality of the evidence before it, the       COUlt   was

convinced beyond a reasonable doubt that Appellant had the present ability                  ~o   pay the purge

payments of $500.00 in each case.

           Finally, we will address Appellanes argument that by imposing two consecutive civil

contempt sentences, Appellant is prevented from having the I·present ability" to purge himself.

Appellant's argument has no meJ.it because he is not serving two consecutive civil contempt

n 'fr. of Proceedings of Bench Wjlffiill.t and Contempt Hearing, Octobm- 1"7, 2013, at 8.
231d.                                            .
241d.
ZSld.   at 6, 9.        .
26   Of9.er of Court, November 25,2013,

                                                                           14
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                                        sentences. He is first serving an indirect criminal contempt sentence of 180 days where he is

                                        eligible for, work release and then a consecutive civil contempt sentence of 120 days with a purge

                                        amount. Appellant must serve his criminal sentence first) and is' not entitled to a purge payment.

                                        He is therefore conect in the fact that he does not have the "present abiliti) to purge himself.

                                        Appellant's criminal contempt sentence has a punitive purpose and punishes him for his failure

                                        to appear, At the termination ofbis 180 day sentence criminal, Appellant will begin to serve his

                                        civil contempt sentence and only then will he be able to purgehlmself.

                                                                                                                                     CONCLUSION

                                                     The Court properly held Appellant in both criminal and civil contempt of court. In light

                                        of the foregoing reasonS, the Court did not commit an abuse of discretion or error of law because

                                        Appellant was afforded all necessary criminal and. civil rights pursuant to each respective

                                        contempt finding. In the civil contempt proceeclings) the Court found, boyond a reasonable

                                        doubt, that Appellant bad the present <ability to comply with the set purge amounts. Moreover,

                                        because Appellant's civil sentence runs consecutive to his criminal sentence, he must serve his

                                        criminal sentence before he will be afforded the opportunity to purge himself. For all the reasons

                                        stated herein, this Court respectfully requests that the Superior Court dismiss Appellant's appeal.




                                                                                                                                            15
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                                       IN THE COURT OF C0:M1\10N PLEAS OF THE 39'fB                                               .JU])ICIAL
                                      DISTRICT OF PENNSYLVANIA ~- FRANKLIN COUNTY BRANCH
                                           .
                                                                     Domestic Relations Section "

                           Kathleen M. O'Connor,                                         Civil Action - Law In Support
                                       Plaintiff
                                                                                         No. DRS 2006-00915
                                                  v.
                           Robert C. Kemmerer,                                           PACKEs Case No. 875108741
                                       Defendant
                                                                                         Honorable Carol L. Van Horn

                                       IN THE COURT OF COIYIMON PLEAS OF THE 39TH JUDICIAL
                                      DISTRICT OF PENNSYLVANIA - FRANKLIN COUl\TY BRANCH
                                                                     Domestic-Relations Section

                       Diana L.      Swis~el',                                           Civil Action - Law In Support
                                          Plaintiff
                                                                                        . No. DRS 1999-00675
                                                  v.
                       Robert C. Kemmerer,                                               PACSES Case Nd. 631101412
                                 . Defendant
                                                                                         Honorable Carol L. Van Horn

                                                                    ORDER OF THE COURT
                                                                ~                                .                                                              .
                                   AND NOW TIDS J.f[.UAY OF December, 20'13 pursuant to Pa,RA.P, 1931(c),

                            IT IS HEREBY ORDERED THAT the Prothonotary of Franklin County shall promptly
                     transmit to the Prothonotary of the Superior Court the record in this matter along with the
                    ,attached Opinion sur Pa,R,A.P, 1925(a), .




                                                                                   16
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                                  The Prothonotary shall immediatelydooket this Opinion and Order of Court and record
                          in the docket f1!e date it was made. The Prothonotary shall forthwith fornish a copy of the
                          Opinion and Order of Court, by mail or personal delivery, to each party or attorney, and shall
                          record in the docket the time and manner thereof              .

                                                                                                                                                                                 By the Cour4



                                                                                                                                                                                 Carol L. Van Horn, J.

                 copies:
                 Domestic Relations Office
             .___~nni!~~ .. N~~~'1..~q"J;:Q.~~Uor .Q..Q.lD.~~tic_Reh!.tio.ns _.... "__ ._. __ " .... _.~ __ . ~~." . _....... _~_. _..
+-----------Imtlrony Eo Miley., Esq., counset1'OrDe~.;an,;t--~....:.....:..=.::..:..=~~---------------




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