J-A26002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

W.R.M.,                                        IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

W.M.M.,

APPEAL OF: N. CHRISTOPHER MENGES,
ESQUIRE,

                        Appellant                   No. 558 MDA 2014


               Appeal from the Order Entered March 5, 2014
               In the Court of Common Pleas of York County
                Civil Division at No(s): 2013-FC-002222-03


BEFORE: BOWES, MUNDY, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                      FILED NOVEMBER 19, 2014

      N.C.M., the attorney for the father in this custody dispute, appeals

from the March 5, 2014 order finding him in criminal contempt of a

January 10, 2014 order. After careful review, we vacate the March 5, 2014

order.

      The pertinent facts are not in dispute. The present action is a custody

matter and was scheduled for a pre-trial conference in an order that read as

follows:

            AND NOW, this 10th day of January, 2014, upon the
      request of Conciliator, IT IS HEREBY ORDERED that a pre-trial
      conference shall be held in this matter on March 4, 2014 at
      9:30 a.m. in Courtroom 10, 7th Floor of the York County
      Judicial Center, 45 North George Street, York, Pennsylvania,
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      17401. Counsel and each of the parties are directed to be
      present at that date and time.

            A pre-trial memorandum shall be prepared by each party
      and filed in the office of the PROTHONOTARY with a
      courtesy copy to be served on the Chambers of the
      undersigned not later than one (1) week prior to the time
      scheduled for the pre-trial conference. The Prothonotary
      will   not    accept    facsimile      transmissions   of    any
      memorandum. The memorandum shall include the information
      and shall be in substantially in the form as the sample enclosed
      with this Order.

Order for Pre-Trial Custody Conference, 1/10/14, at 1 (emphasis in original).

The order also directed the parties to file parenting plans with the pre-trial

memoranda.

      In a letter received by the trial court on February 26, 2014, Mother’s

counsel informed the court that the parties had reached an oral agreement,

and that she had mailed a copy of the written accord, which had been signed

by Mother, to Appellant. Appellant mailed it to his client, but had not yet

received it back.

      Since Appellant had not yet received the agreement executed by

Father, the pre-trial conference was held as scheduled.          Another attorney

from Appellant’s law firm appeared at the appointed time and date.           The

attorney informed the trial court that the matter was settled. The trial court

demanded that Appellant attend the conference, and Appellant appeared at

9:53 a.m., twenty-three minutes after the conference was scheduled.            At

that time, Appellant was adjudicated in contempt of court and fined.         The

court justified its contempt finding on the record as follows:

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            The court finds itself confronted with a circumstance where
     it is unable to conclude the matter scheduled before it. The
     Court finds that had timely and attentive action been taken, not
     only would this proceeding have been unnecessary, the failure to
     follow the Court's directives on filings and the timing of filings
     would have been moot, for lack of a better word.

           Now while it may be true the Court could not have
     recaptured the time reserved for this and the Court had no
     opportunity to attempt to place something else in this time
     schedule, there is no question that [mother’s attorney] did work
     that, in hindsight, was unnecessary but prudent because she
     complied with the Court's order and her client shouldn't bear the
     costs for that. [Mother] lost eight hours of work today that
     obviously is unnecessary, and she should not have to bear that
     expense.

           While we accept [Appellant’s] apology, we do not believe
     that he willfully disrespected the Court's order. The sad
     fact is that he did disregard the Court's order and did so
     expecting something to happen that has not happened, and thus
     we are sitting here unable to conclude this case. At the time we
     may have anticipated concluding the case based on [mother’s
     attorney’s] heads-up letter of February 25th.

                                     ***

                                   ORDER

           Having found [Appellant] in contempt of Court, we impose
     the sanction of $917 to be paid within 30 days to [Mother’s
     attorney who] will distribute the money for [Mother’s] loss of
     work.

N.T., 3/[4]/14, at (unnumbered pages) 2-3 (emphasis added).               The

settlement agreement was filed the following day.

     Appellant filed the present appeal from the contempt order.      In his

timely-filed Pa.R.A.P. 1925(b) statement, Appellant complained that he was

never apprised of whether he was found in civil contempt, direct criminal


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contempt, or indirect criminal contempt. He further observed that the trial

court’s express finding that he did not willfully disrespect the January 10,

2014 order precluded a finding that he was in contempt of court. Appellant

also pointed out that there was no clear indication of precisely what action or

inaction on his part resulted in the contempt finding.

       On appeal, Appellant raises these issues:

       1.     Did the trial court commit reversible error by failing to
              specify the type of contempt in its original Order?

       2.     Did Appellant's actions show sufficient intent to justify a
              finding of criminal contempt?

       3.     Was Appellant given sufficient notice of the accusation of
              criminal contempt against him to satisfy Due Process
              requirements?

       4.     Did the trial court error by finding Appellant in direct
              criminal contempt?

       5.     Were the sanctions imposed by the trial court appropriate
              to its finding of criminal contempt?

Appellant’s brief at 3-4.1

       After the appeal was filed, the trial court clarified that it found

Appellant in direct and indirect criminal contempt.2 Trial Court Opinion,

____________________________________________


1
    Mother did not file a brief.
2
  Direct contempt pertains to conduct that transpires in the court’s
presence, whereas indirect criminal contempt consists of a claim that the
violation of the court order occurred outside of its presence.
Commonwealth v. Moody, 46 A.3d 765, 771 (Pa.Super. 2012). When
contempt is found in a summary manner, without advance notice, it must be
(Footnote Continued Next Page)


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4/30/14, at (unnumbered page) 6 (Appellant’s conduct constituted “both

direct and indirect criminal contempt.”).            The court also indicated that it

premised its contempt finding upon a violation of 42 Pa.C.S. § 4132(2). Id.

at 4.

        Initially, we observe that the “[u]se of the court's summary contempt

power is reviewed under an abuse of discretion standard.” Commonwealth

v. Moody, 46 A.3d 765, 771 (Pa.Super. 2012). The trial court’s power to

impose contempt in this case derived from 42 Pa.C.S. § 4132, which states:

              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.

        If a court finds a person in contempt under § 4132, it is considered

criminal rather than civil contempt.             Stewart v. Foxworth, 65 A.3d 468

(Pa.Super. 2013).         As noted, the contempt finding was premised upon



                       _______________________
(Footnote Continued)

committed in the court’s presence. Id. Since the contempt at issue herein
was summarily imposed, we consider it direct criminal contempt.



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§ 4132(2). Contempt under § 4132(2) can be sustained only if the following

four elements are present:

            (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.

                  Further, unless the evidence establishes an
                  intentional disobedience or an intentional
                  neglect of the lawful process of the court, no
                  contempt has been proven.         Moreover, a
                  conviction for criminal contempt requires proof
                  beyond a reasonable doubt.

      Commonwealth v. Kolansky, 800 A.2d 937, 940 (Pa.Super.
      2002) (quotation, quotation marks, and citations omitted).

             This Court has held that “a degree of intentional
      wrongdoing is an ingredient of the offense of criminal contempt.
      Willfulness is, of course, an element of a criminal contempt and
      must be proved beyond a reasonable doubt.” In the Matter of
      James, 307 Pa.Super. 570, 453 A.2d 1033, 1034 (1982)
      (quotations and quotation marks omitted).

In re C.W., 960 A.2d 458, 467 (Pa.Super. 2008).

      We conclude that the record does not support a finding that Appellant

was in criminal contempt. Initially, we note that the trial court’s explanation

for its action herein, as articulated in its Pa.R.A.P. 1925(a) statement, is

inconsistent with the rationale for the contempt finding proffered on March

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4, 2014. As noted, on March 4, 2014, the contempt finding was premised

solely upon the fact that Appellant had failed to file the settlement

documents prior to the pre-trial conference. The court was upset due to the

fact that it had to hold the pre-trial conference, and that the lawyer who

appeared for Father did not have the settlement documents when he

arrived. It additionally made a factual finding that Appellant did not engage

in willful misconduct.

      However, the March 4, 2014 record cannot sustain a finding of

contempt against Appellant.    First, there was no order in place requiring

Appellant to file settlement documents before the pre-trial conference.

Thus, no order was violated based upon the action that incurred the court’s

wrath.   Additionally, under the pertinent law outlined above, the court’s

March 4, 2014 express finding that Appellant did not act with wrongful intent

precludes a finding of contempt.

      In its Pa.R.A.P. 1925(a) opinion, the court insists that Appellant’s

“failure to comply with a clear and unambiguous direct Order is beyond

question.” Id. at 5. However, the trial court simply did not delineate to any

degree of clarity exactly what conduct that it found contemptuous.         It

mentions, at various points in its opinion, these actions: 1) Appellant’s

failure to appear at the conference; 2) Appellant’s late appearance at the

conference; 3) the fact that Appellant did not file a pre-trial memorandum




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J-A26002-14


and parenting plan;3 and 4) Appellant’s neglect to obtain his client’s

signature on the settlement agreement before the pre-trial conference so

that the proceeding could be canceled.

       We look at these actions individually. First, we categorically reject the

trial court’s indication that Appellant did not appear at the pre-trial

conference. He sent another lawyer who worked for his law firm, and that

lawyer appeared at 9:30 a.m. on the day in question.         We simply cannot

support a finding that a lawyer can be found to have violated an order to

appear at a proceeding when he sends a substitute lawyer from his own law

firm to the proceeding.           Additionally, the lawyer in question had the

pertinent facts within his knowledge, which was that his client had assented

to the settlement.         Moreover, Appellant immediately appeared at the

proceeding when summoned.                Therefore, he was not tardy for the

proceeding in question, and we reject tardiness as a proper basis for a

finding of contempt.

       The only portion of the January 10, 2014 order that Appellant violated

was that he did not file the pre-trial memorandum and parenting plan.

However, this omission, as a matter of law, cannot be considered either

volitional or performed with wrongful intent. As the court plainly outlined on
____________________________________________


3
    While the trial court points out that Mother’s counsel did file the
documents in question, albeit in an untimely manner, we do not view the
actions of Mother’s counsel as pertinent herein. It is Appellant’s actions that
are relevant since he was found in contempt.



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the record on March 4, 2014, the matter was settled and the necessity to file

those documents was moot.

     A review of the initial contempt finding and the Pa.R.A.P. 1925(a)

opinion reveals the true crux of the trial court’s displeasure.        Its tirade

against Appellant and its contempt finding is premised solely upon the fact

that the settlement documents were not filed before the pre-trial conference.

On the record at the March 4, 2014 proceeding, the trial court was solely

displeased by the fact that it had to conduct the conference. It was angry

because it supposedly could not conclude this matter, even though it could

have been concluded since there was a settlement agreement.            The court

also complained that, if Appellant had obtained the agreement, the

proceeding would have been unnecessary.            However, if the court had

accepted Appellant’s truthful representation about the state of this action,

the court would only have had to spend a few minutes at the pre-trial

conference.

     Likewise,   in   its   Pa.R.A.P.   1925(a)   statement,   the   court   said:

“Receiving no settlement documents, the Court convened its Pre-Trial

Conference as scheduled. [Appellant] did not appear but sent an associate

to inform the Court the case was settled.             However, no settlement

documents were in hand nor was the client present.” Trial Court Opinion,

4/30/14, at (unnumbered page) 2. The trial court continued:

     We additionally have the circumstance where counsel, knowing
     of the scheduled Pre-Trial Conference, had approximately 2

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      weeks to effect his client’s signing of the settlement documents
      and did not timely do so, while sending an associate to then
      report a settlement with no documents in hand. This is most
      certainly a reckless disregard for the procedures in place for the
      orderly and timely processing of custody cases as well as the
      Court’s time not only reserved for counsel’s case, but the Court’s
      preparation time as well.

Id. at 5.

      Initially, we stress again that if the trial court had merely accepted

Appellant’s   associate’s   truthful   representation   that   a   settlement   had

occurred, the court would have spent a paltry five minutes on this matter.

Secondarily, the fact remains that there was no order requiring Appellant to

have a settlement agreement filed before the pre-trial conference occurred.

Thus, Appellant’s failure to have the executed settlement documents on the

record before the pre-trial conference cannot be the basis for a contempt

finding as there was no order in place mandating that Appellant perform that

action.

      We also observe that there is another flaw in the court’s decision since

on the record the court acknowledged that Appellant did not engage in willful

misconduct. Although the court backtracked on this finding in its Pa.R.A.P.

1925(a) opinion, stating “I must conclude that I misspoke in negating

counsel’s willful disrespect as transcribed by the court reporter,” id. at 6, we

conclude that the record fails to support this revised position. Appellant sent

an associate to the pre-trial conference on time to correctly report that the

parties had settled. Appellant personally appeared immediately after being


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summoned. His failure to file the pre-trial memorandum and parenting plan

was excusable as those documents were unnecessary in light of the

settlement. Hence, the order in question does not conform to the law.

     Order vacated. Case remanded. Jurisdiction relinquished.

     Judge Jenkins files a Concurring Memorandum.

     Judge Mundy Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2014




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