R.C. Bowman, Inc. v. Bowman, R., III

J-S35036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.C. BOWMAN, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD C. BOWMAN, III :
APPELLANT :
: No. 798 MDA 2021
Appeal from the Order Entered May 21, 2021
In the Court of Common Pleas of Clinton County Civil Division at No(s):
1690-2019
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
DISSENTING STATEMENT BY KUNSELMAN, J.: FILED: JANUARY 14, 2022
I respectfully depart from the Majority’s application of the law on a few
points, and, ultimately, I dissent because I would find the trial court acted
within its discretion when it held Bowman III in contempt.
Regarding the law, I depart from the Majority’s interpretation of the
three-prong contempt analysis under Stahl v. Redcay, 897 A.2d 478, 489
(Pa. Super. 2006). As the Majority notes, Stahl provides in relevant part:
To be punished for contempt, a party must not only have
violated a court order, but that order must have been
“definite, clear, and specific—leaving no doubt or
uncertainty in the mind of the contemnor of the prohibited
conduct.” Because the order forming the basis for civil
contempt must be strictly construed, any ambiguities or
omissions in the order must be construed in favor of the
defendant. In such cases, a contradictory order or an order
whose specific terms have not been violated will not serve
as the basis for a finding of contempt. To sustain a finding
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* Retired Senior Judge assigned to the Superior Court.
J-S35036-21
of civil contempt, the complainant must prove certain
distinct elements: (1) that the contemnor had notice of the
specific order or decree which he is alleged to have
disobeyed; (2) that the act constituting the contemnor's
violation was volitional; and (3) that the contemnor acted
with wrongful intent. A person may not be held in contempt
of court for failing to obey an order that is too vague or
that cannot be enforced.
Id. (emphasis added).
Here, the Majority does not reach the three-prong analysis, because it
first determines that the language in the trial court’s order was not “definite,
clear, and specific.” See Majority Memorandum, at 11, n.7 (citing Stahl, 897
A.2d at 489.) In other words, the Majority imposes a threshold question to
the three-prong analysis; it first decides whether the trial court order was “too
vague” or was sufficiently “definite, clear, and specific.” It concludes the
three-prong analysis does not apply here since it found the order was too
vague.
By contrast, I view the question of whether the order was “too vague”
or “sufficiently specific” as part of the analysis regarding the contemnor’s state
of mind under the third prong. See Stahl, 897 A.2d at 489 (“[T]hat order
must have been “definite, clear, and specific – leaving no doubt or uncertainty
in the mind of the contemnor of the prohibited conduct.”) (citation omitted)
(emphasis added).
Moreover, Stahl instructs that if there are ambiguities, they should be
construed in favor of the defendant. Id. Stahl does not instruct that the
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existence of an ambiguity renders contempt impossible. Therefore, I believe
the Majority terminates its contempt analysis prematurely.
Even if I am mistaken in my interpretation of Stahl, I would still depart
from the Majority’s decision because I would find the trial court’s order here
was sufficiently “definite, clear, and specific.” The order provided: “Bowman
III may not contact [Penn State] for the purposes of soliciting business for
[his company.]” See Order, 12/04/20, at 2 (pagination provided).
My plain reading of the order is informed by the dictionary definition of
“solicit.” “Solicit” is defined as: “to ask for (something, such as money or
help) from people, companies, etc.” Merriam-Webster’s Online
Dictionary, http://www.merriam-webster.com/dictionary/solicit (last visited
January 5, 2022). I recognize that the contact was initiated by Penn State,
not Bowman III. Still, I view Penn State’s contact merely as an invitation for
Bowman III to bid on a project – in other words, to solicit business from Penn
State – which was precisely what the trial court forbade.1 Therefore,
regardless of my disagreement with the Majority about the proper application
of Stahl, I would still reach the three-prong contempt analysis.
Once there, I would conclude R.C. Bowman clearly satisfied the first and
second prongs regarding notice and volition. Less clear is whether Bowman
III acted with wrongful intent under the third prong. I see both sides. That
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1Because we have held, in a companion appeal, that Exhibit 11 is not a trade
secret, absent reversal by our Supreme Court, we note such solicitation will
not be improper going forward. See Bowman v. R.C. Bowman, Inc., 415
MDA 2012 at *19 (Pa. Super. 2022).
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Penn State initiated the contact is certainly a mitigating factor. However,
while the contempt finding might have been a close call for the trial court,
given our standard of review, it should not be a close call for this Court.
Our precedent holds that, “[e]ach 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.” Stahl, 897 A.2d at 488-489 (citation
omitted). Thus, we must give deference to the trial court, as it attempts to
safeguard its process. Frankly, under these facts, reasonable minds could
differ as to whether Bowman III’s actions constituted contempt. As such, the
trial court would have operated within its discretion had it reached the
opposite conclusion or in reaching the one it did. Thus, the trial court did not
exercise its discretion “in a manner lacking reason.” Lachat v. Hinchcliffe,
769 A.2d 481, 487 (Pa. Super. 2001); see also Majority Memorandum, at 6,
n.3. In these circumstances, we cannot substitute our judgment for that of
the trial court.
For these reasons, I must respectfully dissent.
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