Potorski, E. v. Nicholson, C.

J-S30026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ELIZABETH POTORSKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOFER NICHOLSON :
:
Appellant : No. 488 MDA 2021
Appeal from the Order Entered March 18, 2021
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2019-14318
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: JANUARY 14, 2022
Christofer Nicholson (Appellant) appeals from the order entered in the
Luzerne County Court of Common Pleas finding him in civil contempt for
violating a Protection from Abuse Order (PFA) issued on behalf of Elizabeth
Potorski.1 Appellant argues the trial court: (1) abused its discretion when it
sentenced him to probation and failed to impose conditions capable of purging
said sentence; and (2) applied the incorrect burden of proof for a contempt
finding. For the following reasons, we affirm the trial court’s finding of
contempt, but vacate the order in part and remand to the trial court for further
proceedings to determine proper civil contempt sanctions.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Potorski did not file a brief.
J-S30026-21
Appellant and Potorski have a child together, I.N., who was 1 year and
9 months old at the time of the PFA violation hearing. The trial court set forth
the underlying facts and procedural history of this case as follows:
This matter arises from a Petition for Civil Contempt For
Disobedience of a [PFA] filed by Plaintiff, [ ] Potorski, against
[Appellant]. The petition was filed on June 8, 2020[,] alleging
[Appellant] violated a final [PFA] entered on January 2, 2020,
prohibiting [Appellant] from any contact with [Potorski] with the
exception of text messaging for “custody only.” A hearing was
scheduled for June 19, 2020[, but] continued multiple times for
various reasons including Covid-19, scheduling conflicts[,] and the
hospitalization of the parties’ minor child.
The hearing was ultimately held on March 18, 2021.
[Appellant] stipulated that text messages which formed the basis
for [Potorski’s] petition were sent by him to [her] and agreed to
admit them into evidence. The text messages from [Appellant] to
[Potorski] provide in relevant part:
• Our daughter has a nervous [tic] if you have noticed.
She grabs her ears and fidgets with her hand when she
is anxious, sad or nervous. She started doing this more
routinely the last few times as she sees us pack our
things up and getting her strapped in. Thought you
should know if you didn’t already she has also been going
regularly number two with us and her stool demonstrates
darkness indicative of medicine. Not sure if it’s the extra
stimulation or what. She does good by being with us.
Other than that, I urge you to please read and
educate yourself about the repercussions of
sheltering her from her father and family. Please
let me know if I can see her ASAP, as it shows to
benefit her while being apart from her
psychological aspect until that is further able to
show. [sic] Bye.
• Would just like to add that our legal and custodial
disputes have only just begun. To punish her that
repercussions that she absorbs should not be used. We
are in a lot of court hearings and investigating. I am
cooperating with representatives in Colorado to help both
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of us get back to the beginning of all of this. I hope you
understand that this is for [I.N.’s] wellbeing. I want to
provide her with the best life possible and want you to be
there for her mentally as they are for her mentally as
well. [sic] Take care of yourself, please.
[Potorski] responded: I’ve already contacted the
police regarding this. Your court ordered
supervised visitation with [I.N.] is June 5th,
6th[,] and 7th.
• What are you talking about? 12 hours a month for her
to developmentally benefit from being with her father
and other family and she has shown beneficial signs. Are
you okay? Is [I.N.] okay? You’re not making any sense.
I do not think you are looking out for the best interest or
even wellbeing of our daughter. Your lawyer can contact
me. Although I have asked her agency to appoint a new
representative as I have dealt with her against Kevin. His
PFA is coming up soon as well. Your father saw [I.N.]
this weekend on February 20th unannounced to me. I
do not see how you and Laura[2] think you are above the
law. Please contact my lawyer.
Trial Ct. Op. 6/24/21, at 1-2 (some emphasis omitted).
At the March 18, 2021, hearing, the trial court noted Appellant was
previously found guilty of criminal contempt for a violation of the same PFA.3
Trial Ct. Op. at 3. After the prior PFA violation, the trial court ordered
Appellant to “undergo an assessment for batterer’s [intervention] and anger
management[.]” Id. Appellant, at the direction of the probation office,
completed a four-hour class, which did not comply with the court’s order. Id.;
____________________________________________
2 The record does not indicate who Kevin and Laura are.
3Appellant was found in criminal contempt for a December 5, 2019, violation.
This violation occurred before the PFA became final on January 2, 2020, but
after the temporary order was entered on December 2, 2019.
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N.T. PFA Violation H’rg, 3/18/21, at 15-16. The trial court noted that there is
“no four hour class” and it “did not know” why the probation office so directed
Appellant. N.T. PFA Violation H’rg, at 16. The trial court declined to fault
Appellant for his non-compliance with the PFA order because he attempted to
comply but was “misdirected by” the probation office. Id. at 21.
With respect to the present petition for contempt, the trial court found
Appellant violated the PFA when he sent Potorski text messages “offering
opinions and making threatening and harassing comments[.]” Trial Ct. Op. at
2. The trial court extended the PFA order to March 18, 2024. Order, 4/14/21,
at 2 (unpaginated). The court sentenced Appellant to six months’ probation,
and directed: “[Appellant] shall undergo an evaluation for Anger
Management/Batterer’s Intervention through a court approved program.” Id.
(“[Appellant] shall report in person to the Luzerne County [probation office]
beginning . . . March 29, 2021.”). The court also set a purge condition as
follows:
[Appellant] may purge himself of the sentence of probation by
undergoing the Anger Management/Batterer’s Intervention
evaluation and following all of the rules, requirements and
recommendations of the evaluation.
Id. The sentence could also be purged if the assessment determined “no
intervention was necessary.” N.T. PFA Violation H’rg at 27; Trial Ct. Op. at 3.
Appellant filed a motion for reconsideration of sentence, which the trial
court denied on April 14, 2021. On April 19th, Appellant filed a notice of
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appeal and timely complied with the trial court’s order to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).4
Appellant raises the following claims on appeal:
1. Did the trial court err or abuse its discretion by imposing a
sentence and/or sanction which could not be purged rendering
the proceeding criminal rather than civil contempt?
2. Did the trial court err in applying the incorrect burden of proof
of less than a reasonable doubt when determining that the
Defendant was in contempt of a final PFA order?
Appellant’s Brief at 2.
Preliminarily, we note this contempt order is appealable because it is a
final order imposing sanctions on Appellant. See Diamond v. Diamond, 792
A.2d 597, 600 (Pa. Super. 2002).
This Court will not reverse or modify a final decree unless there
has been an error of law or an abuse of discretion, or if the findings
are not supported by the record, or there has been a capricious
disbelief of the credible evidence. As each court is the exclusive
judge of contempt[ ] against its process, we will reverse an order
of contempt only upon a showing of a plain abuse of discretion.
Id. (citations and some punctuation omitted).
____________________________________________
4 On April 15, 2021, Appellant’s attorney, Joseph J. Gronchal, Esquire, filed a
petition to withdraw. Attorney Gronchal stated that “given the civil nature of
the proceeding, [he] and the Office of the Public Defender [of Luzerne County]
request this appointment be terminated.” Gronchal’s Petition for Leave to
Withdraw as Counsel, 4/15/21, at 3 (unpaginated). After filing this petition,
Attorney Gronchal filed a timely notice of appeal. The trial court then granted
Attorney Gronchal’s petition to withdraw. Order, 4/19/21. Appellant is
currently represented by Robert M. Buttner, Esquire, of the Luzerne County
Public Defender’s office. It is not apparent from the record when the trial
court appointed Attorney Buttner.
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In his first issue on appeal, Appellant argues the trial court abused its
discretion when it imposed a sentence for civil contempt that he could not
immediately purge. Appellant’s Brief at 7. Appellant maintains it is impossible
for him to complete a 12-session anger management class and a 32-session
batterer’s intervention class before the 6-month probation period ends. Thus,
Appellant argues, his “ability to purge [is] illusory.” Id. at 10-11. Appellant
noted he would need to complete a total of 44 sessions if ordered attend both
classes and,
[e]ven if [he] entered the programs immediately, which is not
realistic, and attend[ed 2] sessions per week, it would take [22]
weeks to complete the courses, leaving only [2] weeks of
probation which could be purged. [E]ven if this were possible,
[Appellant] would remain on probation until the trial court
reviewed the appropriate paperwork and lifted the probation,
adding at least another [1] to [2] weeks.
Id. at 11. Appellant insists these circumstances render the purge condition
punitive rather than coercive. Id. In terms of requested relief, Appellant
suggests the trial court “direct[ him to] complete [the recommended courses]
within a number of months and provide certificates of completion[.]” Id. at
13. Appellant proposes that should he fail to comply with this order, the trial
court impose the six-month term of probation. Id. We agree that relief is
due.
23 Pa.C.S. § 6114.1(c) states the following:
A sentence for civil contempt under this chapter may include
imprisonment until the defendant complies with provisions in the
order or consent agreement or demonstrates the intent to do so,
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but in no case shall a term of imprisonment under this section
exceed a period of six months.
23 Pa.C.S. 23 Pa.C.S. § 6114.1(c).
This Court has distinguished civil and criminal contempt:
The proper classification of a contempt adjudication is
important because it governs the procedures that must be
followed. If the adjudication is criminal, then the contemnor is
entitled to all of the procedural rights and safeguards afforded to
criminal defendants, including the right to trial by jury. There is
nothing inherent in the violation of a court order that renders the
violation itself civil or criminal. Rather, it is the judicial response
to the violation that determines whether the contempt is civil or
criminal. We must look to the nature of the sanction imposed in
order to ascertain the trial court’s “dominant purpose.” In the
most basic terms, if the dominant purpose is to coerce the
contemnor to comply with a court order, it is civil; if the dominant
purpose is to punish the contemnor for a past violation, it is
criminal.
The typical sanction for civil contempt is remedial in nature.
For example, a court may require the contemnor to compensate
the opposing party for losses incurred as a result of the violation
or reimburse the party’s attorneys’ fees and costs. It is also
common in civil contempt for a court to impose a conditional
prison sentence, giving the contemnor an opportunity to purge the
contempt and avoid the sentence by compensating the opposing
party, paying counsel fees, or doing some other affirmative act
within a certain time period.
Gunther v. Bolus, 853 A.2d 1014, 1016 (Pa. Super. 2004) (citations
omitted).
Further:
If the relief provided is a sentence of imprisonment, it is remedial
if “the defendant stands committed unless and until he performs
the affirmative act required by the court’s order,” and is punitive
if “the sentence is limited to imprisonment for a definite period.”
Vito v. Vito, 551 A.2d 573, 574 (Pa. Super. 1988) (citations omitted).
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This Court has stated that while incarceration for civil contempt it
permitted, the violator must be afforded the opportunity to purge the
sentence. In Wetzel v. Suchanek, 541 A.2d 761 (Pa. Super. 1988), the trial
court found the appellant in civil contempt and sentenced him to 60 days’
incarceration with the ability to purge by finding employment. Wetzel, 541
A.2d at 763-64. This Court concluded “[r]equiring [the appellant] to secure
employment while behind bars [was] tantamount to simply sentencing him to
an unconditional 60 days[’] imprisonment[.]” Id. at 764. We concluded the
trial court committed reversible error when it ordered a purge condition that
the appellant could not complete before the end of the imposed prison
sentence. See id.
Here, at the March 18th hearing, the trial court sentenced Appellant to
“up to 6 months’ probation.” Trial Ct. Op. at 3; N.T. PFA Violation H’rg, at 27.
In its written order, the trial court specified Appellant’s term of probation
would begin March 29, 2021. Order, 4/16/21, at 2. To purge the sentence,
Appellant had to “undergo a full anger management [and] batterer’s
intervention assessment and [ ] complete [the classes] successfully if ordered
to go.” N.T. PFA Violation H’rg, at 17. During the hearing, the trial court
noted that anger management classes would require about 12 sessions and
batterer’s intervention would require about 32 sessions. Id. at 16. The trial
court specified Appellant’s probation would not end until he successfully
completed any recommended programs. See id., at 18-19, 21.
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In its opinion, the trial court specified it found Appellant in civil, not
criminal, contempt, and that it provided a purge condition:
If intervention was recommended following the assessment, the
sentence of probation would be purged following [Appellant’s]
successful completion of the recommendations. In other words,
the sentence of six months’ probation was conditional upon
[Appellant’s] failure to purge himself of contempt. If he chose to
timely participate, his probation would end early. The only way
[Appellant] would serve the full six months of probation is he
chooses not to do the purge. [Appellant] was not powerless to
escape the Court’s sentence. As such, the sentence was
remedial and coercive and was therefore civil in nature, not
criminal.
Trial Ct. Op. at 6.
Our review of the record supports this conclusion. The purpose of the
trial court’s condition was not to punish, but to coerce Appellant to comply
with the present PFA order against him. However, while the trial court sought
to impose a civil sanction, we agree with Appellant that the time constraint to
complete the purge condition was not only too restrictive, but impossible to
comply with. Because completing the condition within a 6-month period is not
possible, it became essentially an “unconditional” sentence limited to a
“definite period.” See Vito, 551 A.2d at 574; Wetzel, 541 A.2d at 764.
Because Appellant would not be able to complete the trial court’s purge
condition, he is entitled to relief. We affirm the trial court’s finding of
contempt, but vacate the sentence and purge conditions and remand for
further proceedings to impose appropriate sanctions and determine the
number of anger management and batterer’s intervention classes Appellant
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would have to complete if recommended. Parties may present evidence as to
the number, frequency, and availability of the classes, and most pertinent
whether Appellant would be able to complete the classes before the six month
period expires.
In his second claim, Appellant argues the trial court applied the incorrect
burden of proof in determining he was in contempt of a PFA order. Appellant’s
Brief at 13. Appellant claims the trial court should have applied a “beyond a
reasonable doubt” standard instead of “preponderance of the evidence.” Id.
at 14. Appellant insists because the trial court applied the incorrect standard,
it “deprived [him] of a fair hearing[.]” Id. Due to our disposition on
Appellant’s first claim, we do not reach his second claim.
Order affirmed in part and vacated in part. Case remanded for
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2022
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