In Re: Estate of Grimm, S., Appeal of: Grimm, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF SARA GRIMM, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
APPEAL OF: WILLIAM L. GRIMM
No. 1186 WDA 2014
Appeal from the Order June 23, 2014
In the Court of Common Pleas of Mercer County
Orphans' Court at No(s): 2011-153
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 23, 2015
William L. Grimm appeals from the order of contempt entered in the
Court of Common Pleas of Mercer County. Upon careful review, we vacate
the contempt order.
The relevant factual and procedural history of this matter is as follows.
Sara Jane Grimm (“Decedent”) died on February 28, 2011, leaving a will
dated January 25, 2005, in which she appointed her daughter, Rebecca J.
Bernhard, appellee herein, as Executrix. On March 31, 2011, Executrix filed
a petition for citation, directed to Appellant,1 to show cause why he should
not be ordered to file an account of his actions as agent under a power of
attorney executed by Decedent on or about November 30, 2010. Among the
allegations in the petition were that “several checks for large amounts of
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1
Appellant is Decedent’s stepson.
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money that were made payable to [Appellant] by [Appellant] in his capacity”
as Agent had not been accounted for. Petition for Accounting, 3/31/11, at ¶
8. By order dated June 27, 2011, the court directed Appellant to provide
Executrix with an account of his term as Agent, which Appellant did.
Executrix filed “exceptions” to the account, alleging, inter alia, that Appellant
used the power of attorney to transfer to himself the sum of $77,000 in
contravention of the authority granted under the document. The Executrix
also requested that the court find Appellant in contempt for failing to comply
with the June 27, 2011 order and sought reimbursement for her costs and
attorney’s fees.
Appellant responded to the exceptions, denying that he had improperly
converted funds from the Decedent and asserting that the Decedent had
made lifetime gifts to him and other individuals. He also attached a
supplemental account. The Executrix filed a discovery motion, which the
court denied as premature.
Thereafter, Appellant, represented by new counsel, filed an answer to
the petition for account filed by the Executrix in March 2011.2 In that
answer, Appellant asserted that the Decedent had an account at First
National Bank of Pennsylvania containing $77,746.19, which the Decedent
instructed him to close and take the balance as a gift to Appellant and his
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2
The Appellant had not previously filed an answer to the petition, although
he had submitted an account.
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wife.3 Appellant subsequently withdrew $77,000 from the account and
deposited it in an investment account in his own name.
In July 2012, the Executrix filed a motion to compel discovery and to
establish an escrow account, into which Executrix requested that Appellant
be required to deposit the funds he allegedly misappropriated using the
Decedent’s power of attorney. The court held a hearing on that motion on
November 2, 2012, after which it entered an order directing that Appellant:
(1) provide Executrix with all statements from the investment account
containing the proceeds of Decedent’s First National Bank of Pennsylvania
account; (2) not make any withdrawals from the investment account
pending further order of court; and (3) provide Executrix with statements
from all of his bank accounts.
On December 18, 2012, Executrix filed a motion for contempt,
claiming that Appellant had failed to comply with the November 2, 2012
order by not providing certain discovery. Prior to the date of a scheduled
hearing, Appellant turned over some discovery to Executrix, who requested
the hearing be continued as a result. After reviewing the documents
provided by Appellant, Executrix once more filed for contempt, claiming the
discovery was incomplete and not in compliance with the court’s order.
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3
Appellant claims that the source of the funds contained in the account was
his father and mother. His mother passed away in 1992 and his father
thereafter married the Decedent.
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Executrix also requested that Appellant be required to pay her fees and costs
and turn over to the estate the $77,000 allegedly given to Appellant by the
Decedent. After meeting with counsel in chambers, the court entered an
order directing the parties to meet to review previously produced discovery
and create lists of any missing items.
On March 7, 2014, Executrix once again filed a petition for contempt,
alleging that Appellant still had not turned over certain missing items of
discovery and requesting that Appellant be required to reimburse the estate
for costs and expenses incurred in its attempts to obtain discovery.
Appellant responded, averring that he had, in fact, provided all relevant
information. He also asserted that, because he had actually provided an
account and a supplemental account, he should not be required to pay costs
and fees absent a finding by the court that he be surcharged.
The court held a hearing on April 24, 2014, after which it entered an
order directing the Appellant to provide within ten days an affidavit
regarding the disposition of the contested $77,000. The court also issued an
order scheduling a status hearing, at which time it would determine if any
outstanding discovery issues remained and would impose sanctions if
necessary.
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On May 14, 2014, counsel for Appellant had an ex parte meeting with
the Honorable Thomas R. Dobson, P.J.,4 at which time counsel revealed,
pursuant to Rule of Professional Responsibility 3.3., that Appellant had
misrepresented to the court that he had not spent any of the disputed
$77,000. Counsel told Judge Dobson that Appellant had, in fact, spent
$27,000 of that money. This meeting was transcribed and, pursuant to an
order entered by Judge Dobson, sealed, to be provided only to the
Honorable Daniel P. Wallace, the presiding judge. Judge Dobson also
ordered that counsel immediately file a motion to withdraw his appearance
on behalf of Appellant. Finally, Judge Dobson ordered that the remaining
funds be paid into escrow with the Register of Wills. Counsel was
subsequently permitted to withdraw his representation. Judge Wallace also
reviewed the transcript of the May 14, 2014 ex parte meeting and directed
the Register of Wills to reseal the transcript.
On May 19, 2014, Executrix filed yet another petition for contempt,
claiming that Appellant had failed to comply with the court’s April 25, 2014
order directing him to file an affidavit regarding the disposition of the
contested $77,000. Instead, Executrix asserted, Appellant forwarded an
unsworn verification outlining the whereabouts of amounts adding up to only
$50,000. The court scheduled a hearing on the petition for contempt, to be
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4
Judge Dobson was not the presiding judge in this matter.
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held on June 20, 2014. Appellant claims that there is no proof in the record
that notice of either the petition or the hearing was given to him.
On June 18, 2014, the Executrix filed yet another petition for
contempt, asserting that only $20,000 had been deposited with the Register
of Wills as directed by the court. However, Appellant again claims that
“[t]here is no evidence in the record this second [p]etition for [c]ontempt
was served on the Appellant or the Rule was served on either the Appellant
or his former counsel.” Brief of Appellant, at 19.
Appellant appeared pro se at the contempt hearing held on June 20,
2014. At the hearing, the court did not take evidence or testimony from
either party. Rather, the court took the bench and immediately stated its
conclusions that: (1) a suitable affidavit had not been provided by the
Appellant; and (2) Appellant misled the court with regard to the $77,000.
While the court did not specify its basis for concluding that Appellant had
misled the court, it nevertheless entered an order directing Appellant to pay
Executrix’ fees and costs, and stated that if the fees and costs were not paid
in full by June 27, 2014, Appellant “shall report to the Mercer County Jail.”
N.T. Contempt Hearing, 6/20/14, at 4.
Having retained new counsel, Appellant filed exceptions to the June
20, 2014 contempt order on July 21, 2014, in which he alleged that he “was
unable to determine what [c]ourt [o]rder the contempt was based on, nor . .
. what conduct, [c]ourt [o]rder or factual basis existed for the contempt
finding.” Brief of Appellant, at 20. Appellant also claimed that the court’s
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order was unclear as to whether his contempt was civil or criminal and that
he was not provided an opportunity to retain new counsel, be heard, and
present a defense. Appellant also filed a notice of appeal on July 21, 2014,
followed by a Pa.R.A.P. 1925(b) statement.
On August 29, 2014, Judge Dobson entered an order allowing “for the
unsealing of the [May 14, 2014 ex parte meeting] transcript for the purpose
of allowing Judge Wallace to review [it] with [Appellant’s] counsel” at a post-
appeal conference. On September 2, 2014, Judge Wallace issued an order
clarifying his contempt order as follows:
The contempt [o]rder dated June 20, 2014, is hereby amended
to specify that Appellant was held in contempt for failing to abide
by Judge John Reed’s [o]rder of November 2, 2012, and the
[o]rder of May 14, 2014, and May 19, 2014, by Judge Thomas
Dobson.
Trial Court Order, 9/4/14.
On September 8, 2014, the trial court issued an order directing that
the May 14, 2014 transcript be resealed. Finally on September 19, 2014,
Judge Wallace issued a Rule 1925(a) opinion, in which he defended his
contempt order as follows:
On September 2, 2014, this [c]ourt met with Appellant’s counsel
for a post-appeal conference. At that time, this [c]ourt shared
with Appellant’s counsel a sealed transcript containing a
summary of why Appellant’s previous counsel was withdrawing
his appearance. President Judge Thomas R. Dobson heard prior
counsel’s reasons for withdrawing because this [c]ourt was
unavailable. More importantly, because prior counsel’s reasons
were subject to attorney-client privilege, Judge Dobson ordered
the transcript of the proceeding be sealed.
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While it is true that this [c]ourt failed to state the reason for
finding the Appellant in contempt at the contempt hearing on
June 20, 2014, this [c]ourt informed Appellant’s counsel at the
post-appeal conference that the information contained in the
sealed transcript was the reason for finding Appellant in
contempt. Furthermore, this Court then entered an amended
[o]rder dated September 2, 2014 setting forth the reasons for
contempt in a manner that did not divulge the privileged
information contained in the sealed transcript. In light of the
amended [o]rder, this [c]ourt believes Appellant’s basis for his
appeal has been remedied, and that the appeal should be
dismissed.
Trial Court Opinion, 9/19/14, at 1-2.
Appellant raises the following issue for our review:5
Whether the [t]rial [c]ourt erred in its contempt finding which
was made without the [c]ourt providing due process to the
Appellant, including [denying] the Appellant . . . sufficient notice
of the contempt allegations, conducting a hearing which [failed
to] provide[] the Appellant the opportunity to defend against the
allegations, and ordering purge conditions before adjudicating
the Appellant in contempt, as well as [failing to] require[e] the
complaining party to prove her allegations of contempt.
Brief of Appellant, at 5.
When considering an appeal from an [o]rder holding a party in
contempt for failure to comply with a court [o]rder, our scope of
review is narrow: we will reverse only upon a showing the court
abused its discretion. The court abuses its discretion if it
misapplies the law or exercises its discretion in a manner lacking
reason. To be in contempt, a party must have violated a court
[o]rder, and the complaining party must satisfy that burden by a
preponderance of the evidence.
Attorney fees may be assessed as a sanction for the contemnor’s
refusal to comply with a court [o]rder, causing the innocent
party to incur fees in an effort to obtain what was rightfully his.
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5
Because we grant Appellant relief on this claim, we need not address the
second claim raised by Appellant in his brief.
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Harcar v. Harcar, 982 A.2d 1230, 1234 (Pa. Super. 2009) (internal
citations omitted).
To sustain a finding 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.
Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013). The complaining
party must prove these elements by a preponderance of the evidence.
Barrett v. Barrett, 368 A.2d 616, 621 (Pa. 1977). A mere showing of
noncompliance with a court order, or even misconduct, is never sufficient
alone to prove civil contempt. Habjan, 73 A.3d at 637. Present inability
to comply is an affirmative defense, which must be proved by the alleged
contemnor. Barrett, 368 A.2d at 621.
Finally,
When holding a person in civil contempt, the court must
undertake: (1) a rule to show cause; (2) an answer and
hearing; (3) a rule absolute; (4) a hearing on the contempt
citation; and (5) an adjudication of contempt. Fulfillment of all
five factors is not mandated, however. The essential due
process requisites for a finding of civil contempt are notice and
an opportunity to be heard.
In re Cullen, 849 A.2d 1207, 1211 (Pa. Super. 2004) (citations and
punctuation omitted).
Here, the trial court created no record to support its finding of
contempt. The court held Appellant in contempt without (1) requiring
Executrix to prove Appellant’s noncompliance by a preponderance of the
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evidence or (2) providing Appellant an opportunity to be heard or defend
himself in any manner. Moreover, the record is devoid of any indication that
Appellant was provided with proper notice of either the Executrix’ petition for
contempt or the trial court order scheduling a hearing thereon.6 In Wood v.
Geisenhemer-Shaulis, 827 A.2d 1204, 1209 (Pa. Super. 2003), this Court
vacated a contempt order where the trial court had heard oral argument but
did not convene an evidentiary hearing, in contravention of the alleged
contemnor’s due process rights. The Court noted:
With respect to the [due process] inquiry, we find that the trial
court erred in finding [Appellant] in civil contempt without an
evidentiary hearing. The trial court’s finding was entered after
oral arguments, which did not allow [Appellant] to testify or
introduce evidence that would purportedly excuse his inability to
comply with the court’s . . . order. By extension, we cannot
ascertain whether [Complainant] met his burden of proof,
although under the facts of this case, [Appellant] clearly failed to
timely comply with the trial court’s order.
Id. at 1209 (internal citations omitted). In the matter sub judice, the trial
court failed to even give Appellant the benefit of oral argument, and instead
made an immediate finding of contempt upon taking the bench.
Moreover, the trial court’s contempt order fails to indicate which order
of court the Appellant had violated. Indeed, the court itself conceded in its
Rule 1925(a) opinion that “it is true that this [c]ourt failed to state the
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6
In that regard, we note that the trial court scheduling order bears a
notation that it was sent to two attorneys, neither of whom represented
Appellant. Indeed, the contempt order itself appears not to have been
served upon Appellant as required by Pa.R.C.P. 236(a).
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reason for finding Appellant in contempt at the contempt hearing on June
20, 2014[.]” It was not until approximately two and one half months later,
and after Appellant filed his notice of appeal, that the court on September 2,
2014, issued an amended order specifying that Appellant was held in
contempt for “failing to abide by Judge John Reed’s [o]rder of November 2,
2012, and the [o]rder of May 14, 2014, and May 19, 2014, by Judge Thomas
R. Dobson.” Trial Court Order, 9/2/14, at 1-2.
Even on appeal, the parties remained unclear as to the basis for the
contempt finding. Executrix stated the following in her brief:
The Appellee is unable to cogently address the issue of upholding
the [c]ourt’s determination of Appellant’s contempt because the
exact basis for that ruling has been withheld from Appellee.
Brief of Appellee, at 4.
Based on the foregoing, it is readily apparent that the trial court
abused its discretion in holding Appellant in contempt without an evidentiary
hearing. While it is clear from the record that Appellant has failed to comply
with certain of the court’s directives, due process requires that Executrix
prove Appellant’s violations by a preponderance of evidence after a hearing
held following due notice. As such was not done in this case, we are
constrained to vacate the order of contempt.7
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7
It appears that the proper course for the court to follow on remand is to
proceed with a hearing on the objections filed by the Executrix to Appellant’s
account to determine whether the $77,000 fund was, in fact, a gift from the
decedent to the Appellant. In the event the court, after a full hearing,
(Footnote Continued Next Page)
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Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/2015
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(Footnote Continued)
determines that the money was not a gift, a surcharge may be imposed
against the Appellant.
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