Camper, C. v. Werner, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAROLYN T. CAMPER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRADLEY S. WERNER :
:
Appellant : No. 3179 EDA 2019
Appeal from the Order Entered September 5, 2019
In the Court of Common Pleas of Bucks County Civil Division at No(s):
No. A06-13-60988-D
BEFORE: BOWES, J., STABILE, J., and COLINS, J.*
CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:
FILED JULY 29, 2021
I respectfully dissent. While I concur in the learned Majority’s vacatur
of the financial sanction imposed by the trial court’s September 5, 2019 final
contempt order, I cannot join in its conclusions regarding mootness. Pursuant
to Pennsylvania precedent, I would expand the Majority’s limited grant of relief
to vacate all three of the contempt findings entered against Husband.
As the Majority has noted in its factual summary, there were three
separate orders entered in these ancillary contempt proceedings,1 which
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* Retired Senior Judge assigned to the Superior Court.
1 These contempt proceedings are ancillary to the underlying equitable
distribution matter, which was pending on appeal when this dispute arose.
See, e.g., V.C. v. L.P., 179 A.3d 95, 97 (Pa.Super. 2018) (quashing all
unrelated portions of an appeal taken from a finding of contempt); see also,
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concerned Husband’s compliance with his obligation to provide regular reports
to Wife detailing the finances of Werner Athletic Management, LLC (“WAM”),
and Pennsbury Racquet and Athletic Club (“PRAC”). The trial court’s
September 5, 2019 order was the culmination of these proceedings and
subjected Husband to incarceration and required him to pay $5,000 for Wife’s
attorney fees. The earlier interlocutory contempt findings entered on January
8, 2019, and May 28, 2019, respectively, contained no such sanctions.
Following a single day behind bars, Husband relented and provided the
withheld information to Wife. Thereafter, in parallel proceedings, this Court
vacated the trial court’s equitable distribution order due to reversible errors in
its division of assets. See Camper v. Werner, 225 A.3d 1126 (Pa.Super.
2019) (non-precedential decision at 1-11).
Husband now seeks to vacate these three contempt findings based upon
this Court’s invalidation of the underlying equitable distribution order that
formed the basis for the trial court’s contempt findings. See Husband’s brief
at 13-28. Our standard of review over such claims is as follows:
In reviewing a contempt order, this Court must ensure that the
trial court correctly applied the law in reaching its findings and did
not abuse its discretion. We will only reverse where the trial court
misapplies the law, or its judgment is manifestly unreasonable, or
the evidence of record shows that its decision is a result of
partiality, prejudice, bias, or ill will.
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e.g., Raynor v. D’Annunzio, 243 A.3d 41, 57 (Pa. 2020) (Wecht, J., concur.)
(“Contempt hearings and motions for sanctions, by contrast, are ancillary to
the underlying civil action . . . .”).
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The enforceability of the lower court’s sanction rests not only on
the legality of the order itself, but also on the legality of the
underlying order[.]
Commonwealth v. Tyson, 800 A.2d 327, 331 (Pa.Super. 2002) (cleaned
up). To that end, this Court has previously vacated direct civil contempt
orders where the legal justification underlying the finding of contempt is
invalidated on separate grounds in subsequent appellate proceedings. See
Kuppel v. Auman, 529 A.2d 29, 30-31 (Pa.Super. 1987).
With these principles in mind, I must disagree with the Majority’s finding
of mootness. There is a paucity of Pennsylvania law supporting the Majority’s
position that the mere purging of an underlying civil contempt order renders
it moot for the purposes of appellate review.2 Tellingly, the Majority has cited
no authoritative Pennsylvania holdings in support of its conclusion. Rather,
the tenuous lynchpin of the Majority’s analysis is an unpublished writing from
Maryland, which it cites for the broad proposition that an appeal from an
“order of incarceration” entered in connection with civil contempt is moot if
the contemnor has purged the contempt. Majority Memorandum at 8 (citing
In re B.T., 2019 WL 931718, at *3-*4 (Md. Ct. Spec. App. 2019)).
The Majority’s reliance upon this precedent is ill-advised. As an
“unreported” decision of the Maryland Court of Special Appeals, the law of our
sister jurisdiction clearly provides that In re B.T. “is neither precedent within
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2 By contrast, there is a robust line of precedent wherein this Court has
refused to find waiver in the context of expired civil contempt sanctions
where a petitioner remains subject to an underlying order. See Orfield v.
Weindel, 52 A.3d 275, 278 (Pa.Super. 2012) (collecting cases);
Warmkessel v. Heffner, 17 A.3d 408, 413 (Pa.Super. 2011) (same).
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the rule of stare decis nor persuasive authority.” Md. Rule 1-104(a). Were
this Court applying the law of Maryland, we would not be permitted to even
cite this holding. Md. Rule 1-104(b). Consequently, it seems unwise to
elevate it to the level of persuasive precedent here in the Commonwealth. To
the extent that In re B.T. stands for general principles of jurisprudence that
are reasonably appurtenant to the instant case, I read the gravamen of its
holding much differently than the Majority.
In the case, a petitioner appealed the validity of a civil contempt order
on the basis that the trial court had assigned a purge condition with which she
was allegedly unable to comply. However, she did not dispute the court’s
“authority to impose the conditions that served as the basis for the court’s
finding of contempt” and conceded that she had violated the at-issue order.
See In re B.T., supra at *4-*5. Consequently, the appellate court found
that the petitioner’s argument was moot under Maryland law. Id. at *4 (“As
a general proposition, an appeal of an order of contempt is moot if the
contempt is purged. . . . [A]bsent a challenge to the contempt finding itself,
there is nothing for this Court to consider.” (cleaned up)). To the extent that
this Maryland-specific law is fairly applicable here, I find it is readily
distinguishable. Specifically, the instant appeal directly implicates the trial
court’s authority to impose the at-issue contempt findings. A fair reading of
the cited Maryland case law supports a conclusion that challenges addressed
to the authority of the trial court to enter contempt orders is not rendered
moot by the contemnor’s decision to purge the sanction imposed. Id.
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Moreover, I find Kuppel binding on this point. In that case, the
petitioner was found to be in direct civil contempt due to his failure to preserve
a right of way across land that he owned. Several years after that finding of
contempt, this Court overturned the underlying order that had required the
petitioner to maintain the encumbrance. Thereafter, he filed a petition to
vacate his contempt, which was denied by the trial court. On appeal, this
Court reversed the trial court under a straightforward reasoning:
Where an appellate court reverses the decision of a trial court and
remands for new proceedings, the cause is restored to the status
it had before the proceedings began. The court order at issue
thereby became null and void. As of the date of the appellate
decision, the trial court edict had no continuing effect. It was a
nullity. It had no more force than a wisp of smoke dissipated in
the air.
The October 30, 1984 contempt order was based on a violation of
the order of November 4, 1983. Because the November order was
extinguished by the [S]uperior [C]ourt . . . , the order of October
30 also has no further validity. It is impossible to hold someone
in contempt of an order which does not exist.
Kuppel, supra at 31 (cleaned up).
Applying this holding to the case at bar, Husband’s challenge to the
validity of the trial court’s direct civil contempt findings arises under an
identical procedural posture, i.e., the underlying equitable distribution order
that required him to provide certain financial information to Wife has been
vacated. See Camper, supra. As a threshold matter of law, this vacated
order no longer exists and, consequently, cannot serve to justify the
imposition of direct civil contempt by the trial court. Accord Kuppel, supra-5-
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at 31. Indeed, the Majority relies upon Kuppel to vacate the award of
attorney’s fees contained in the third contempt order. See Majority
Memorandum at 11 (“[I]t is improper to hold a party in contempt for violating
an order that itself is defective.”) (citing Kuppel, supra at 31).
To my mind, the Majority’s well-reasoned rationale for granting limited
relief applies with equal force to all three contempt findings. There is nothing
in our persuasive or binding case law to suggest that we cannot grant a full
measure of relief to Husband merely because he has purged his contempt by
complying with the since-vacated equitable distribution order. While I agree
with the Majority’s general observation that this Court is not capable of
“unwinding” Husband’s decision to disclose financial information to Wife, I
believe that we are fully empowered to grant the specific relief sought in this
case, i.e., vacating the contempt findings entered against Husband that have
been invalidated by this Court’s holding in Camper.
Contrary to the Majority’s position, vacating the contempt findings
against Husband in toto will work a significant change in the procedural
posture of this case by returning the parties to the status that existed prior to
the erroneous equitable distribution proceedings. Kuppel, supra at 31(“When an appellate court reverses the decision of a trial court and remands
for new proceedings, the cause is restored to the status it had before the
proceedings began.”). Moreover, the ongoing existence of these unsupported
contempt findings have reputational implications for Husband that further
augur against finding them moot. See, e.g., PA. CONST., Art. I, § 11 (“[E]very
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man for an injury done him in his lands, goods, person or reputation shall
have remedy by due course of law . . . .” (emphasis added)); see also, e.g.,
In re B.T., supra at *5 (recognizing that a finding of direct civil contempt
“labels the [petitioner] a contemnor and imputes guilt to him or her”).
Based on the foregoing discussion, I concur to the extent that the
Majority vacates the financial sanction, however I would vacate the contempt
finding in full. Thus, in all other aspects, I respectfully dissent.
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