J-A20023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN A. PEZZUTI                              IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

LINDA S. PEZZUTI

                        Appellant                 No. 2772 EDA 2013


              Appeal from the Order Entered August 27, 2013
              In the Court of Common Pleas of Wayne County
                   Civil Division at No(s): 399-2003 Civil


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                        FILED AUGUST 22, 2014

      Appellant, Linda S. Pezzuti, appeals from the August 27, 2013 order

finding her in direct criminal contempt and sentencing her to pay a fine of

$500.00.   After careful review, we reverse the August 27, 2013 contempt

order and discharge Appellant.

      The factual and procedural history of this case can be summarized as

follows.   Appellant and Appellee, John A. Pezzuti (Father), have been

involved in contentious custody litigation concerning their daughter, A.P.,

now age 15, since their first separation in October, 2000.     The original

custody action was filed in Monroe County.     Appellant moved to Wayne

County shortly after the commencement of the custody action.     At times,

Appellant has unsuccessfully sought to have venue of the custody case

established in Wayne County.
J-A20023-14


       Relative to matters proceeding in Wayne County, the certified record

reveals Appellant, on September 8, 2003, initially filed a pro se Preacipe for

writ of summons, including a request for admissions and a motion for

transfer of venue of the Monroe County custody action.1           On October 10,

2003, Appellant filed a counseled petition for modification of the Monroe

County custody order of July 17, 2003 as amended by order dated August

12, 2003.     By this time, Father resided in Pike County, but asserted his

intention of moving back to Monroe County. On October 14, 2003, the trial

court entered an order, sua sponte, transferring the matter to Monroe

County. On October 31, 2003, Appellant filed a motion to reconsider. After



motion for reconsideration. In its accompanying opinion the trial court noted



                                       Mother had already unsuccessfully litigated

in Monroe County requests for change of venue to Wayne County including

appeals to this Court.

       On February 27, 2004, Appellant filed another motion in Wayne

County to modify the August 12, 2011 Monroe County custody order. The

trial court, apparently treating the motion as a petition for reconsideration,
____________________________________________
1
   These were filed under the instant civil docket number notwithstanding
they sought to raise a custody matter. As a writ of summons is ineffective
to commence a custody complaint or petition for modification, this filing
triggered no trial court action.



                                           -2-
J-A20023-14


ordered the case transferred to Monroe County on March 3, 2004. On March

11, 2004, Appellant filed a notice of appeal from the March 3, 2004 order.

This Court affirmed the trial court in a memorandum opinion filed on

December 14, 2004. Pezzuti v. Pezzuti, 869 A.2d 23 (Pa. Super. 2004)

(unpublished memorandum).

       On February 17, 2012, Appellant filed a copy of a custody order from

Monroe County dated December of 2011.            On August 16, 2013, Appellant

filed a pro se

                                      pro se

                                                                 equested the

same relief, to wit that the current custody order be amended to allow A.P.

to attend a new high school with revised custody and partial custody

schedules. In both petitions, Appellant referred to the order to be amended

                         bout December 13, 2011, the current court [sic] was

entered with both parents sharing both physical and legal custody. Entered



Petition, 8/16/13, at 2, ¶ 6; Emergency Motion, 8/16/13, at 1, ¶ 6.2

       Although there is no entry in the trial court docket indicating the

scheduling of a hearing on these motions, the trial court entered an order on


____________________________________________
2
  As noted the actual date of the filing of the foreign order from Monroe
County was February 17, 2012. A copy of the Monroe County order was
attached to the Emergency Petition.


                                           -3-
J-A20023-14


representations of [Appellant] that there was an existing Wayne County



having realized subsequent to the hearing that the active custody case and

                                                                         mergency

petition and directed that all future pleadings related to custody of A.P. be

filed in Monroe County unless leave to file elsewhere is first granted by

Monroe County.        Id., ¶¶ 1, 2.      The trial court also directed Appellant to

                               why [Appellant] should not be held in Criminal

                         Id. at 2, ¶ 3.

       On August 27, 2013, following a brief hearing, the trial court entered

an order finding Appellant in direct criminal contempt of court, and imposing

a fine of $500.00.       Trial Court Order, 8/27/13, at 1.      On September 26,

2013, Appellant filed a timely pro se notice of appeal.3

       On appeal, Appellant raises the following issue for our consideration.


              conviction of direct criminal contempt when no
              evidence was presented to indicate that [Appellant]
              is a member of court personnel or that the trial court
              had previously entered an order or decree that


              was appropriate under the particular circumstances?




____________________________________________
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.      Father, nominally an appellee, has not
participated in this appeal.


                                           -4-
J-A20023-14


       It is axiomatic that

                                                                   Williams v.

Williams, 681 A.2d 181, 182 (Pa. Super. 1996), affirmed, 721 A.2d 1072

(Pa. 1998). That power, however, is circumscribed by statute, providing in

relevant part as follows.

              § 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:



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

42 Pa.C.S.A. § 4132.4

contempt under this provision there must be proof beyond a reasonable

____________________________________________
4
   Appellant devotes a portion of her argument demonstrating the
inapplicability of Subsections (1) and (2) of Section 4132, which permit an
adjudication for contempt in the following circumstances.

              (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.

42 Pa.C.S.A. 4132 (1), (2). See                             -21. Although the
trial court does not reference Section 4132 in its order or Rule 1925 opinion,

(Footnote Continued Next Page)

                                           -5-
J-A20023-14


doubt: (1) of misconduct, (2) in the presence of the court, (3) committed

with the intent to obstruct the proceedings, (4) that obstructs the

                                   Commonwealth v. Williams, 753 A.2d 856,

861 (Pa. Super. 2000), appeal denied, 75 A.2d 89 (Pa. 2000).


             reviewed under an abuse of discretion standard.
             Commonwealth v. Stevenson, 482 Pa. 76, 393
             A.2d 386, 393 (1978) (plurality opinion).

                              We have held that in considering an
                       appeal from a contempt order, we place great
                       reliance on the discretion of the trial judge.
                       Each court is the exclusive judge of contempts
                       against its process, and on appeal its actions
                       will be reversed only when a plain abuse of
                       discretion occurs. In cases of direct criminal
                       contempt, that is, where the contumacious act
                       is committed in the presence of the court and
                       disrupts the administration of justice, an
                       appellate court is confined to an examination
                       of the record to determine if the facts support
                       the trial co

             Commonwealth v. Jackson, 367 Pa.Super. 6, 532
             A.2d 28, 31 32 (1987) (quotations and citations
             omitted).

Commonwealth v. Moody, 46 A.3d 765, 771 (Pa. Super. 2012), appeal

granted in part, 79 A.3d 1093 (Pa. 2013).5

                       _______________________
(Footnote Continued)
Subsection (3).   Trial Court Opinion, 11/22/13, at 4; see also N.T.,
8/27/13, at 10-11. We agree that subsections (1) and (2) do not apply to
the circumstances of this case, which do not implicate official misconduct or
lawful process.
5

allowance of appeal in Moody on the following questions.
(Footnote Continued Next Page)

                                            -6-
J-A20023-14




Behr v. Behr, 695 A.2d 776, 779 (Pa. 1997).

             When acting to uphold its authority, [] a court must
             use the least possible power and should first consider
             less severe remedies such as civil contempt before
             imposing summary criminal contempt. The judge
             should resort to criminal sanctions only after he
             determines, for good reason, that the civil remedy


Moody, supra at 773, n.7, quoting Commonwealth v. Garrison, 386 A.2d

971, 976 (Pa. 1978).

judgment and, on appeal, the trial court will not be found to have abused its

discretion unless the record discloses that the judgment exercised was

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-

        Commonwealth v. Walsh, 36 A.3d 613, 620 (Pa. Super. 2012)

(citation omitted).



the suffi

                       _______________________
(Footnote Continued)

             (1) Did the Superior Court err in ruling that
                                       -court conduct was not
             summary direct criminal contempt because the trial
             court supposedly did not observe the conduct?

             (2) In cases of summary direct criminal contempt, is
             a defendant entitled to counsel and to call witnesses?

Commonwealth v. Moody, 79 A.3d 1093, 1093-1094 (Pa. 2013) (per
curiam order)



                                            -7-
J-A20023-14


criminal contempt.6       First, we note that the basis for the trial court finding

Appellant in direct criminal contempt in this case was its determination that,

at the August 20, 2013 hearing, Appellant made misrepresentations and

omissions, leading the trial court to believe Wayne County was the proper



11/22/13, at 3. The trial court concluded that Appellant thereby attempted

                                               Id. at 4.

                                                               tive to her alleged




required

                                                               Id. at 22. Upon a




____________________________________________
6
    The trial court clearly distinguished its determination from a proceeding for


                                f the contempt. Grubb v. Grubb, 473 A.2d
1060, 1062 (Pa. Super. 1984); see N.T., 8/27/13, at 10-11. Criminal
Contempt involves the imposition of a fixed fine or term of incarceration
intended to punish. Id. Such is the instant case. There is a further
distinction between direct and indirect criminal contempt. Moody, supra at

claim that a violation of an Order or Decree of court occurred outside the
                         Id., quoting Commonwealth v. Brumbaugh, 932
A.2d 108, 109 (Pa. Super. 2007). Again, such is not the instant case.


                                           -8-
J-A20023-14


      The trial court references the fol

misrepresentations and omissions.

            While presenting the Petition for Modification on
            August 20, 2013, [Appellant] was questioned about
            the current custody order under which the parties
            were operating, [Appellant] failed to inform the
            Court that the custody Order was issued in Monroe
            County.     [Appellant] was questioned regarding
            whether the docket number was a civil or domestic
            relations docket. The Court asked [Appellant] if the
            case was a divorce and custody action. Plaintiff
            Mother replied that the case was in fact a divorce
            and custody matter.

Trial Court Opinion, 11/22/13, at 3.    The trial court continued that it only



misrepresentations by omissi                                                   Id.

However, a review of the transcript from the August 27, 2013 hearing

reveals that the trial court did not consult the record to confirm or discount

                                                                         rder to

her   emergency   motions,    which    she   contends   belies   any   claim    of

misrepresentation.

                   [Appellant:]      In my petition, if you look at
            it, I attached the court order and I used Exhibit A, B
            and C and it all referred to the court order of Monroe
            County.

                  [The Trial Court:]Not in the copy I have.       I


N.T., 11/27/13, at 10.   The record, however, reflects Appellant did attach

the Monroe County order she sought to have modified as an exhibit to her


                                      -9-
J-A20023-14


petition for emergency modification, albeit not her contemporaneous

emergency motion for modification, which contained additional exhibits.



Appellant intentionally misled the trial court about the county of origin of the

order sought to be modified.

      Even assuming the trial court remained unaware of the procedural



hearing on her emergency petition/motion for modification, our review of the

circumstances of this case, in light of the required proofs cited above, leads

us to conclude that a charge of direct criminal contempt cannot be

sustained. With respect to the first element, our Supreme Court has defined

misconduct as behavior tha

Commonwealth v. Garrison, 386 A.2d 971, 979 (Pa. 1978). We find no

case where an erroneous attempt to invoke the jurisdiction or venue of a

particular court has been considered misbehavior amounting to direct

criminal contempt.

      We also conclude the second element of proof necessary for direct

criminal contempt, i.e., that the misbehavior be in the presence of the court,

is problematic in this case.

parties have exited the courtroom without causing any disturbance, and the

record reflects no behavior that actually and significantly disrupted the




                                     - 10 -
J-A20023-14




behavior that it only learns about subsequent       Behr, supra at 779-780.

        Instantly, as the trial court noted, it only became aware of the Monroe

County connection with the case from the court administrator after the

August 20, 2013 proceeding, but before it entered its intended order of

modification. N.T., 8/27/13, at 3. It is also clear that the trial court relied

on non-



August 27, 2013 rule-to-show-cause hearing, related her communications

with her attorney, William Watkins, Esquire, relative to her pro se filings. Id

at 4-

Watkins] told our Court Administrator that he talked to you and he said you

wanted a Petition for Emergency Relief because of school matters and he

told you that school matters are not a matter for emergency relief in Monroe

            Id. at 5. Thus, contrary to the standard articulated in Behr, the

trial court here did not conclude that Appellant was in contempt based on

misbehavior it observed in its presence, but relied on information provided

by others after the subject proceeding.



and disingenuous with respect to the issue of venue, did not obstruct the



element of direct criminal contempt.


                                     - 11 -
J-A20023-14


            To obstruct justice, conduct must significantly
            disrupt proceedings.   [C]ontempt requires actual,
            imminent prejudice to a fair proceeding or prejudice

            and authority.

Williams v. Williams, 721 A.2d 1072, 1074 (Pa. 1998) (citations omitted).

      Instantly, the t

not unsympathetic, is not concerned with the orderly procedure or authority

of the court.    The August 20, 2013 hearing proceeded in good order.

Rather, the problem is with the fundamental jurisdictional and procedural

issues in the case for which the trial court and Father had recourse to civil

sanctions or other types of relief for any vexatious conduct by Appellant.

These, however are outside the purview of direct criminal contempt.

trial court should not use the drastic sanction of finding a person in criminal

                                                 In. Re C.W., 960 A.2d 458,

466 (Pa. Super. 2008).

      For all the foregoing reasons, we conclude the trial court abused its

discretion in finding Appellant in direct criminal contempt and imposing a



order and Appellant is hereby discharged.

      Order reversed. Appellant discharged. Jurisdiction relinquished.




                                    - 12 -
J-A20023-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




                          - 13 -
