J-A14018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DIANA L. SWISHER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT C. KEMMERER
Appellant No. 1967 MDA 2013
Appeal from the Order and Judgment of Sentence Entered October 17, 2013
In the Court of Common Pleas of Franklin County
Domestic Relations at No(s): DRS 1999-675
PACSES NO. 631101412
KATHLEEN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT C. KEMMERER
Appellant No. 1968 MDA 2013
Appeal from the Order and Judgment of Sentence Entered October 17, 2013
In the Court of Common Pleas of Franklin County
Domestic Relations at No(s): DRS 2006-00915
PACSES NO. 875108741
BEFORE: FORD ELLIOTT, P.J.E., OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 16, 2014
Appellant, Robert C. Kemmerer, appeals from an October 17, 2013
order and judgment of sentence holding him in civil and criminal contempt.
We affirm.
The trial court summarized the relevant facts as follows:
* Retired Senior Judge assigned to the Superior Court.
J-A14018-14
The current appeal arises from two long[-]standing support
orders, one issued on April 2, 2008 for K
another issued on March 19, 2009 for Diana Swisher. The April
2, 2008 [o]rder directed Appellant to pay $216.66 per month in
arrears for the support of his dependents(s), and as of May 1,
2013, Appellant had accumulated arrearages of $10,316.02.
The March 19, 2009 [o]rder directed Appellant to pay $181.17
per month plus $21.73 per month in arrears for the support of
his dependents(s), and as of May 1, 2013, Appellant had
accumulated arrearages of $5,097.50. Prior to this appeal,
Appellant has been held in contempt several times for his
perpetual failure to pay.
The most recent [p]etitions for [c]ontempt filed on May 1, 2013
and August 26, 2013 are implicated in this appeal. On May 1,
2013, two [p]etitions were filed (one in each case) ordering
Appellant to appear in court on June 6, 2013 at 1:00 p.m. in the
assigned courtroom for a contempt hearing, and notifying
Appellant that if he failed to appear, a bench warrant would be
issued for his arrest. Appellant in fact did fail to appear and the
[c]ourt issued a bench warrant in each case on June 13, 2013.
Appellant was apprehended and attended a bench warrant
hearing on August 26, 2013. The [c]ourt continued the hearing
until September 12, 2013, when a full evidentiary hearing could
Therefore, on August 26, 2013, [p]etitions for contempt were
again filed in both cases, directing Appellant to appear in court
on September 12, 2013 at 1:00 p.m. in the assigned courtroom
for a hearing. The [p]etitions informed Appellant that if he failed
to appear, a bench warrant would be issued for his arrest. Also
on August 26, 2013, via a [d]omestic [r]elations [d]etainer, the
[c]ourt detained Appellant until his September 12, 2013 hearing
and conditioned his release upon payment of $600[.00.]
Appellant was subsequently released after making the $600[.00]
payment to the [d]omestic [r]elations [s]ection.
On September 12, 2013, Appellant again failed to appear at the
noticed and scheduled hearing, and bench warrants were issued
for his arrest on September 17, 2013. Appellant was
apprehended and brought before the [c]ourt for a bench warrant
hearing on October 17, 2013. In the interest of judicial economy
ling to attend scheduled
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J-A14018-14
proceedings, the [c]ourt held a joint contempt hearing on
in each case. After conducting the hearing, the [c]ourt found
Appellant in contempt and sentenced him to 180 days
incarceration, work release eligible, for his failure to appear on
June 6, 2013, and September 12, 2013. The [c]ourt also
sentenced Appellant to an additional, consecutive, 120 day
sentence with a purge amount of $500.00 in each case
findings.
Trial Court Opinion, 12/11/13, at 2-4 (record citations omitted).1
Whether the bench warrant court failed to provide Appellant with
all of the essential procedural safeguards that attend criminal
days imprisonment?
is, in reality, a criminal contempt sentence and should be
vacated because the court failed to afford Appellant all of the
essential procedural safeguards that attend criminal proceedings
Whether the imposition of a civil contempt sentence, which has
as one of its purge conditions, the condition of serving a
consecutive jail sentence prior to being eligible to purge himself
of civil contempt, or obtaining employment, violates the rule
prohibiting a court from imposing purge conditions on a civil
y?
____________________________________________
1
Both parties and the trial court have complied with the requirements of
Pa.R.A.P. 1925.
-3-
J-A14018-14
We have carefully examined the submissions of the parties, the
opinion of the trial court, and the certified record on appeal. Based upon our
review, we are satisfied that Appellant is not entitled to relief for the reasons
has adequately and accurately addressed each of the claims Appellant raises
on appeal.2 Therefore, we direct the parties to include a copy of the trial
____________________________________________
2
constituted indirect criminal contempt. See Trial Court Opinion, 12/11/13,
at 8
as Appellant outright failed to appear in court. Instead, Appellant violated
quotation marks omitted).
We
misconduct of a person in the presence of the court, or so near thereto to
interfere with its immediate b Commonwealth v. Patterson,
308 A.2d 90, 92 (Pa. 1973). A litigant who defies an order to appear in
court may be held in direct criminal contempt. See Commonwealth v.
Ferrara,
409 A.2d 407, 411 (Pa. 1979) (appellants brought to court under
bench warrants were held in direct criminal contempt for failure to appear
for either arraignment or trial); Commonwealth v. Edwards,
703 A.2d
1058, 1060 (Pa. Super. 1997) (failure to appear in court as required by
previous court proceedings may be considered act of direct criminal
contempt when defendants were finally brought to court). In view of these
proceedings pursuant to the orders issued by the trial court constituted
direct criminal contempt.
Although we have re-
transgression, we conclude that the trial court correctly found Appellant to
be in criminal contempt of court. Pennsylvania trial courts possess an
(Footnote Continued Next Page)
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J-A14018-14
_______________________
(Footnote Continued)
inherent power to impose punishment for contempt of court. This power is
memorialized in the Judicial Code, which provides:
§ 4132. Attachment and summary punishment for
contempts
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.
42 Pa.C.S.A. § 4132. To demonstrate contempt where it has been alleged
that a party disobeyed legal process issued by the court in violation of
§ 4132(2), the following elements must be established:
(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.
Commonwealth v. Pruitt,
764 A.2d 569, 574 (Pa. Super. 2000)
(quotations and citations omitted). Here, the trial court found ample
support for each element of this four-
contention that the trial court deprived him of his procedural rights. See
Trial Court Opinion, 12/11/13, at 8-11. Hence, we fully adopt the trial
-5-
J-A14018-14
appeal.
Order of civil contempt affirmed. Judgment of sentence for criminal
contempt affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
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IN 1m COURT OF dOMMON PLEAS OF THE 39 TH
JUDICIAL
DISTRICT OF PENNSYLYANlA - FRANKLIN CO~TTY BRANCH
Domestic Relations Section,
Kathleen M. O'Connor, Civil Action - Law In Support
Plaintiff
No. DRS 2006-00915
v.
PACSES Case No. 875108741
Robert C. Kemmerer,
DefendantlAppellant
Honorable Carol L. Van Horn,
IN THE COURr OF COMMON PLEAS OF THE 39 TH' JUDICIAL
DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
• ,`` ,,-, ~_n,
- Domestic Relatitm.f'S.ection ,__ ,______ n_ -~-- __________ -
- _n_ --
Diana L. Swisher, Civil Action - Law In Support
Plaintiff
v.
Robert C. Kemmerer, PACSES Case No. 631101412
Defendant
Honorable Carol L. Van Horn
OPINION sur Pa.R.A.P. 1925(a) At'lD ORDER OF COURT
Before VanHorn, J:
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IN THE
COURT OF COMMON PLEAS OF THE 39Tll J(J))IClAL .
DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Domestic Relations Section
Kathl~n M. O'Connor, Civil Action,:" Law In Supp.ort '
Plaintiff
No. DRS 2006~00915
v. < .
PACSES Case No. 875108741
Robert C. Kemmerer,
Defendant!Appellant
Honorable Carol L. Van HOI'll
IN THE COURT OF CUMMON PLEAS OF THE 39m JUDICIAL
DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
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['Statement") on November 18, 2013, In his Statement, Appellant raises two issues with respect
to the Court's contempt findings: 3
1. The Court committed an abuse of discretion and an'crror of law by denying Appellant
the full panoply of rights attendant to a criminal offenseJ specifically) but not limited to, notice,
time to prepare a defense, meaningful assistance of counsel.
2. The court [sic] entered a sentence for civil contempt. Appellant did not have the .
present ability to comply with the conditions imposed by th,e court to plU'ge himself of civil
contempt, specifically, the court imposed financial conditions which the court elToneously
neglected to detemrine beyond· a reasonable- doubt that Appellant had the present ability to
comply. Also) by imposing a consecutive civil contempt sentence, the court, by definition,
preCluded Appellant the ~'present ability" to purge himself of contempt until after the expiration
oftbe preceding sentence,
The ColUt now responds to Appellant's Statement though this Opinion and Order
pUrsuant to Pa,R.AP. 1925(a).
BACKGROUI"J)
The current appeal arises from two long standing support orders, one issued on April 2,
2008 for Kathleen O'Connor,4 and another issu;ed on March 19,2009 for Diana Swisher,S The
April 2, 2008 Order directed Appellant to pay $216.66 per month in arrears for the support of his
dependent(s), and as of May 1,2013, Appellant had accumulated Rnearages of $10,316.02. 6 The
March 19, 2009 Order directed Appellant to pay $181.17 per month plus $21.73 per month in
. . .
alTears for the support of his dependent(s), and as of May 1, 2013, Appellant had accumulated
. , .
"
) Concise Statement ofMatte~ Complained of on Appeal, Nov. 18.2013.
~ Petition for Contempt - Defendant, Kathleen M. O'Connor, May 1, 2013.
j Petition for Contempt ~ Defenrumt, Diana L. Swisher, May 1,2013.
6 Petition for Contempt - Defendant, ~athleen M O'Connor, May 1,2013.
2
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arrearages of $5,097.50,7 Prior to tills appeal, Appellant has been held in ~ontempt se~eral times
for his perpetUal failme to pay.
The most recent Petitions for' contempt filed on May 1) 2013 and August 26, 2013 are
implicated in this appeal. .on May 1, 2013, two Petitions were filed (one in each case) ordering
Appellant to appear in court on June 6, 2013 at 1:00 p,m. in the assigned courtroom for a
contempt hearing, and notifying Appellant that if he failed to appear, a bench warrant would 'be
issued for his an·est. 8 Appellant in fact did fail to appear and the Court issued a bench warrant in
each case on Jlme 13,2013. 9
Appellant was apprehended and att~nded a bench warrant hearing on August 26, 2013.
The Court continued the hearing ~til September 12,2013> when a full evidentiary hearing could
be held on Appellant's failure to appear on June 6, 2013. 10 Therefore, on August 26. 2013,
. Petitions for contempt were again filed in both cases, directing Appellant to appear in court on
September 12, 2013 at 1;00 p.m. in the ~signed courtroom for a hearing. ll The Petitions
informed Appellant that if he failed to appear, a bench warrant would be issued for his arrest. 12
Also on August 26,2013, via a Domestic Relations Detainer, the Court detained Appellant witil
his September 12, 2013 hearing and conditioned his release upon payment of $600, 13 Appellant
was subsequently released after making the $600 payment to the Domestic Relations Section. 14
7 Petitionfor Conwrnpt - Defendant, Diana L. Swisher, May 1,2013,
8 Petition for Contempt - Defendant, Diana L. Swisher, May 1,2013; Petition for Contempt - Defendant, Kathleen
M. O'Connor, May 1,2013 [hereinafter referred together as "Petitions for Contempt, May 1,2013"),
9 Bench Warrants - Defendllnt, June 13,'2013, . .
10 Tr. of Proceedings of Bench Warrant and Contempt Hearing, October 17,2013, at 2; Domestic Relations
Detainer, August 26, 2013. . ..
II Petition for Contempt - Defendant, Diana L, Swisher, Aug. 26, 2013; Petition for Contempt - Defendant, .
Kathleen M. O'Connor, Aug. 26, 2013 [hereinafter referred together as ''Petitions for Contempt, Aug, 26, 2013"],"
~U ' . . ' .
13 D~mestic 2013. 15 Appellant was
apprehended and brought before the Court for a bench warrant hearing on O~ober 17, 2013. In
the interest of judiCial economy and Appellanfs proven history of failing to attend scheduled
proceedings, the Court held a joint contempt hearing on Appellant's failure to appear on June 6,
2013 and September 12,2013, and Appellant's failure to comply with the support ordeIs in each
case. 16 After conducting the hearing, the Court found Appellant in contempt and sentenced him
to 180 days incarceration., work release eligible, fOl' his failure to appear on June 6, 2013, and
September 12, 2013. 1? The Court also sentenced Appellant to an additional, consecutive, 120
day sentence with a purge amount of $500.00 in each case ($1,000 total) for Appellant's failure
to comply with the support orders: l g Appellant has appealed the Court~s contempt findings.
DISCUSSION
I. Standard of Review
Our appellate courts have a 'narrow scope of review when examining an appeal of a
contempt order and will only reverse upon an abuse of discretion. Hyle v. Hyle,
868 A.2d 60 l,
604 (pa. Super. 2005) (citing Diamond v. Diamond,
792 A.2d 597, 600 (Pa. Super. 2002)). "The
court abuses its discretion if it misapplies the law or exercises its discretion in a manner lacking
reasolL" [d. (citing Lachat v. Hinchcliffe,
769 A.2d 481. 487 (pa. Super. 2001»). An appellate
cOurt "must place great reliance on the sound discretion of the trial judge when reviewing an
,order of contempt." ,Godfrey v. Godfrey,
894 A.2d 776, 780 (Fa. Super. 2006) (quotlllg Rhoades
v. Plyce, 874 A2d 148, 153 (Pa. Super. 2005».
15 Bench Warrants - Defendant, Sep~em'oer 17,2013.' ,
16 Tr.of Proceedings of Bench Warrant and Contempt Hearing, October 17,2013, at 4.
11 Order of Court, October 17,2013.
IE Id, '
4
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II. The Court did not err or abuse its discretion
a. Appellant IS beld in criminal and civil contempt
Appellant first asserts that the Court erred and abused its discretion by denying Appellant
the full panoply of rights attendant to a criminal offense such as nouce, time to prepare a
defense, and meaningful assistance of counsel. AppellanCs contempt arises from two support
actions. Punishment for contempt in support actions is governed by 23 Pa.C.s. § 4345 (failure to
pay) and 23 Pa.C.S, § 4344 (failure to appear). To address this issue fully, we must first exaIillne
whether Appellant's contempt is civil or criminal. H\\l"hether a particular order contemplates
civil or criminal contempt is imperapve because each classification confers different and distinct
procedural rights on the contemnor." Warmkessel v. He.fJher,
17 A.3d 408, 414 (pa. Super.
2011) (citing Lachat 769 A.2d at 487).
Civil contempt has as its dominant pmpose to enforce compliance
with an order of COUlt for the benefit of the' party in whose favor
the order runs. while criminal contempt has as its dominant
purpose, the vindication of the dignity and authority of the court
and the protection of the interest of the general public. This
distinction between civil and criminal contempt is 'important
because the type of contempt being punished will detennine the
manner in which the contempt is to be adjudjcatcd as well as the
punishlllent which may be Jinposed. It must be noted that the
characteristic that distinguishes civil from criminal contempt is the
ability of the contemnor to purge himself of civil .contempt by
complying with the court IS dtl'ecttve.· .
Godfrey,
894 A.2d at 782 (citations omitted) (emphasis added). Civil contempt orders have a
remedial purpose and are design,ed to compel an individu'al to comply with a oourt order. See
Hyle, 868 A.2d at 604 (citing Gunther v. Bolus.
853 A.2d 1014. 1016 CPa. Super. 2004».
The factors generaUy said to point to a civil contempt are these: (1)
. [w)here the complainant is a private person as opposed to the
government (,>r a governmental agency; (2) where the proceeding is
entitled in the original,,, aotion and ftled as a continuatioo·tl1ereof
as opposed to a separate and independent action; (3) where holding
the [respondent] in contempt affords relief toa private party; (4)
5
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where the relief requested is primarily for the benefit of the
complainant; and (5) where the acts of contemp~ complained of ar~
primarily civil in character and do not of themselves coristitute
crimes or conduct by the [respondent] so contumelious that the
court is impelled to act on its own motion.
Warmkessel) 17 AJd at 414 (citations omitted) ..
We now turn to the Court's specific contempt findings. First, Appellan~ failed to appear
twice at noticed hearings on June 6) 2013 and September 12, 2013. Therefore, on October 17,
2013, pursuant to 23 Pa.C,S. § 4344) the Court entered an order fInding Appellant in contempt
. .
and sentenced him to 180 ~ays incarceration, work release eligible, § 4344 states:
A person who willfully fails or refuses to appear in response to a
duly served order or other process under this chapter may, as
prescribed by general rule, be adjudged in contempt. Contempt
shall be punishable by anyone or rome of the following: (1)
Imprisomnent for a period not to exceed six months. (2) A fine not
to exceed $500. (3) Probation for a period not to exceed six
months.
23 Pa,C.S. § 4344. Second, Appellant failed to pay court mdered support or complete
employment search fOilllS and was held in contempt pursuant to 23 Pa:C.S. § 4345. § 4345
states:
(a) General rule.-A person who willfully fails to comply with any
order under this chapter, ·except an Older subject to section 4344
(relating to contempt for failure of obligor to appear), may, as
prescribed by general rule, be adjudged in contempt. Contempt
shall be punishable by 'any one or more of the following: .
(1) .Imprisonment for a period not to exceed six months,.
(2) A fme not to exceed $1,000.
(3) Probation for a period not to exceed one year.
(b) Condition for release.--An ordor committing a defendant to jail
under tbis section shall specify the condition the fulfillment of
which wil~ result in the release ofthe obligor.
23 Pa.C.S. § 4345. Appellant was sentenced to a consecutive te1ID of 120 days with a purge
amount of$500.00 for both of his caseS ($1 ,000 total).··
6
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Here, the most important element in determining whether Appellant is held in civil or
criminal contempt is the·Court's selective application of a purge amOllilt. As noted above, "[tJhe
characteristic that distinguishes civil from criminal contempt is the ability of the contemnor t9
pmge hirr!self of contempt by complying with the. court's directive. U Colberf ·v. GUnning,
533
A.2d 471, 472 (pa Super. 1987) (citing In re.Martorano,
346 A.2d 22 (pa, 1975); Janet D. v.
Carros,
362 A.2d 1060 (pa. Super. 1976)). Therefore, Appellant is held in criminal contempt for
his failure to appear because his sentence of 180 days incarceration is more of a punishment than
a remedial measure and he was not afforded the ability to purge himself. See Fatemi v. Fatemi,
537 A.2d 840, 845 (pa, Super, 1988) (citing In re Martorano,
346 A.2d 22, 29 (pa. 1975) ("a
contemnor who will be sentenced to a detenninate tenn of imprisonment ... which· he is
po\verless to escape by purging himself of his contempt, is entitled to the essential procedural
safeguards that attend criminal proceedings generally/'). The "dominant purpose)) of
Appellant's criminal contempt sentence is to vindicate the authority ofthe,court by reprimanding
him for his repeated non-compliance. Godfrey, 894 A,2d at 782.
Alternatively, Appellant is held in civil contempt pursuantto his failure to comply with
the support orders and complete employment search forms because his incarceration is
conditioned upon the Court's imposition of $500.00 purge amOl.Ults. This contempt is clearly
civil because the ~'dominant purpose" of imposing a sentence conditioned on a purge payment is
"to COerce [Appellant] into compensating his children for the an'earages accumulated in the
. .
past. 1I Barrett v. Barrett) 368 A.2d 616, 619 (Pa. 1977). Additionally, ?p})l.ying the factors
entunerated in Warrnkessel v..HeJfoer~ Appellant is a private person, and holdi~ him in
contempt with the ability to purge himself affords relief to his childIen iflwhen he pays thepurge
amount. Also, the act of failing to pay child support or complete employment search forms is
7
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pri.mRri1y civil in nature. Importantly, we note that Appellant's civil sentence runs after his
criminal sentence, and as of the date of this Opinion and Order, he is serving his sentence for
criminal contempt.
b. Appellant was afforded the necessary rights and procedural safeguards
i. Criminal contempt proceedings
As noted above, Appellant argues that the Court erred' and abused its discreti on by
denying Appellant the full panoply of rights attendant to a criminal offense such as notice, 'time
was found to be in both criminal and civil contempt, we must now examine what procedural
rights, if any, he should have been afforded. Considering civil and crinllnal contempt, ueach has
its own distinct procedures and confers distinct procedural rights; the two may not be casually
comruing1ed/' Barrett, 368 A,2d at 619 (citing Philadelphia Marine Trade Association v,
International Longshoremen IS Association,
140 A.2d 814 (Pa, 1958)).
We will first address Appellant's criminal contempt fInding, Criminal contempt can be
either direct or indirect. See Commonwealth v. Moody,
46 A.3d 765, 772 (Fa. Super, 2012),
Direct contempt punishes conduct occurring in the "presence of the court, thereby obstructing the
administration of justice," Commonwealth v, Ashton, 824 A2d 1198, 1202 (Fa. Super, 2003)
(citing 42 Pa.C,S, § 4132(3»). Alternatively, "[a] ,charge of indirect criminal contempt consists
of a claim ,that a violation of an Order or Decree of court
.... , .
OCCUlTed outside the presence of the
, '
court.," Moody, 46 AJd at 772 (citations omitted). Here, the behavior at issue did not DCcm in
" -
the "presence of the court," as Appell~t outright "failed to appear in court. Instead, Appellant
violated court orders to appear and his contempt is therefore indirect.
To establish it:idirect criminal contempt, the Commonwealth -must
prove: 1) the Order was su~cielltly definite~ clear, and specific ~o
8
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the cOntemnor as to leave no doubt of the conduct prohibited; 2)
the contenmor had notice of the Order; (3) the act constituting the
violation Il)ust have been volitional; and 4) the contemnor must
have acted with wrongful intent.
Commonwealth Y. Brumbaugh} 932 A.2d 108, 11 0 (pa. Super. 2007) (citing Ashton, 824 A.2d at
1203). Indirect criminal contenlptprompts the need for "the essential procedural s~feguards that
attend cr~al proceeclings generally.n Ingebrethsen)l. Ingebrethsen,
661 A.2d 403} 405(pa.
Super. 1995) (citations omitted); see also Hyle) 868 A,2d at 606; Ashton, 824 A.2d at 1203.
Adclitionally, gnil~ must. be found beyond a reasonable doubt Ashton, 824 A2d at 1203. We
t-------....;.im'et;tim
m alty=-note1!iitl 'A-ppeff~fd--irm-fuive 'it r1ght-to-a-jury~trlal ~becaciSe··te did-no.....tUt. . . ·.f"961 A.2d 842, 847 (pa.
2008). We next turn to Appellant's argument that the Court denied Appellant his criminal rights
such as notice, time to prepare a defense, and meaningful assistance of counsel. It is unclear
what Appellant is claiming he did not have notice of, but there is no evidence to indicate that .
Appellant did not have notice of the June 6,2013 and September 12,2013 hearings, and it was
Appellant's failure to attend these hearings which prompted the Court's fineting of criminal
contempt. In fact, the Petitions for contempt filed on May 1,2013 and August 26, 2013, gave
Appellant clear notice of the date, time, and place of these hearings, informed him that he could
be found in contempt if the court detennined he "willfully failed to comply with its order for
sUpport," and explained to him that a bench wanant would be issued if he failed to appear.
Turning to the September 12, 2013 hearing specifically, it was scheduled after Appellant was
apprehended on a bench wanant and attended the hearing on August 26, 2013. FollOWing the
August 26, 2013 hearing, notice of the September 1~, 2013 hearing was mailed to the jail as
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Appellant remained incarcenited. 19 Pursuant to his failure to attend the September 12, 2013
bearing, a bench warrant was issued again and he was subsequently apprehended and brought
before the Comi on October 17, 2013. At the Octo bet 17, 2013 hearing, Appellant's attorney
infonned the Court that he failed to attend the September 12, 2013 hearing because he di"d not
have a ride. 20 Appellant clearly knew about the September 12, 2013 hearing, yet chose not to
attend.
Next, addressing Appellant's concerns about his cowlSel not haviIig time to prepare a
public defender at the October 17,2013 hearing. At the hearing, counsel verbalized his concerns
over handling the contempt proceedings as he was only prepared to represent Appellant in the
bench warrant proceedings. 21 Despite counsel's apprehensions, the criminal contempt issue was
both simple and synonymous with the bench warrant issue because both concerned Appellant's
failure to appear. Counsel was experienced in criminal defense and capable of representing
Appellant competently and meaningfully. There was no need for discovery, witnesses, or the
resolution of any evidentiary issues. At the bearing, Appellant was offered an opportunity to
explain why he did not appear, and his explanatio~ that he did not have a ride was not sufficient
enough basis to excuse bis contempt. Appellant was in no way prejudiced as the same evidence
would have been considered by the Court bad the proceedings only resolved the outstanding
bench "WalTant.
By failing to appear, Appellant was attempting to avoid the consequences of his fail:u-e to
pay. Such an act was volitional and intentionally wrongful. Appellant's history shows the
I~ Tr. of Proceedings of Bench Warrant and Contempt Hearing, October 17,2013, at 4; Petitions for Contempt, Aug.
26,2013" "
2ll 'fr. of Proceedings of Bench Warrant and ConttHnpt Hearing, October 17,2013, at 7.
2t Tr. of Proceedings of Bell ch Warrant and Qontempt Hearing, October 17> 2013.
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numerous opportunities provided to him for compliance with court orders, and he hail been well
educated on the process., Overall, Appellant was satisfactorily provided with the procedural
, safeguards attendant to criminal proceedings generally.
ii. Civil contempt proceedings
For purposes of completion, we will also examine the process by which Appellant was
found in civil contempt to en1>'UI'e that he was afforded all necessary rights. Initially, even though
Appellant was represented at the hearing by a public defender, he was not entitled to counsel
Process Clause does not automatically require the provision of counsel at civil contempt
proceedings to an indigent individual who is subject to a child support order, even if that
individual faces incarceration (for up to a year.)"); See qlso Rittel v. Riffel,
485 A.2d 30, 34 n.5
(pa. Super. 1984). Therefore. the issues conceming Appellant's counsel are moot. Additionally,
Appellant was not entitled to a jury trial. See In re Martorano,
346 A.2d 22,31 (Pa. 1975).
Traditionally, courts have followed a five~step process when holding an individual in
civil contempt. "1) a rule to show cause why an attaclunent-Should not issue, 2) an answer and
hearing. 3) rule absolute (arrest), 4) a hearing on contempt citation, and 5) an adjudication of
contempt." McMahon v. McMahon,
706 A.2d 350, 356 (pa. Super. 1998) (quoting Crislip v.
Harshman, 365 A.2d .. 1260. 1261 (pa. Super. 1976); Lowenschuss v, Lowenschuss,
470 A.2d
970, 973 (pa. Super. 1983), In support actions, the procedural requirements for civil contempt
proceedings are simplified and outlined in PemlSylvania Rule of Civil Procedure 1910.25.
Pursuant to Pa.R.C.P. 1910.25, upon an obligor's failure to comply with a support order. the
obligee may fIle a p~tition for civil.contempt or the domestic relations section shall fIle a petition
for civil contempt pursuant to the guidelines promulgated by the rule. Pa.R.C.P. 1910.25
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(a)(1)&(2). The petition must begin with an order of court in the proscribed form, and
specifically no.tify an obligor of the time and place of the hearing, that a warrant may be issued
for his arrest if he fails to show, and that he may be held in contempt if the court determines he .
Hwillfully failed to comply with its order for supp0l1. H Pa.R.C.P. 1910.25(b). Additionally,
(0) {t]he petition shall aver the facts alleged to constitute the failure
to comply vvith the support order. The petition shall set forth the
amount of SUppOlt alTearages, if any, as provided by the domestic
relations section. Unless specially ordered by the court, no answer
to the petition is required.
(d) The petitio~ shall be served upon the respondent .
. .. ._(L)._hy ordinary~mail with .the~reJllfn__addIess of th~Ldp.mestiQ_.
relations section appearing thereon; or".
(2) by any fonn of mail which requires the respondent to sign a
receipt; or
(3) oy a competent adult; or ...
(4) plU'suant to special order 0 f court
A respondent who attends the conference and/or hearing in person
shall be deemed to have been served.
(e) The court may issue a bench warrant as provided by Rule
1910.13-1 for failure bfthe respondent to appear.
(f) The respondent shall be advised in the OrderINotice to Appear
that his or her present ability to pay is a critical issue in the
contempt proceeding..The respondent shall be provided with
Income and Expense Statements to demonstrate financial ability to
pay. At the hearing, the respondent shall be provided the
opportunity to respond to any questions about his or her financial
status. The trier of fact shall issue an express finding that the
respondent does or does not have the present ability to pay.
Pa.RC.P. 191O.25(c)(d)(e)&(f); see also Lowenschuss, 470 A2d at 973.
After examining the contempt Petitions filed on May '1, 2013, they clearly conformed to
Pa.RC,P. 1910.25. The Petitions were in order fonn and gave Appellant clear notice of the date,
time, and place of the hearing, informed him that he could be found in contempt lf the court
detennined he ~'~llfully failed to comply with its order for support," and explained to him that a
bench warrant would be issued if he failed to appear. Despite this information in the Petitions,
Appellant still did not appear at the. scheduled contempt hearing. There is' no doubt that all .
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required procedural steps were taken to put. Appellant on notice of his civil contempt
proceedings.
Once Appellant was apprehended a second time for his failme to appear on Septcmber
12, 2013, the Court decided to hold his civil contempt hearing simultaneously with his bench
warrant hearing and criminal contempt hearing because Appellant's attendance was guaranteed.
Appellant was therefore afforded a hearing pursuant to Pa.R.C.P. 1910.25"5, which requires a
hearing to be held to in~cel'ate an individual as a sanction for civil contempt in a support
__ ``c:>~s.:. ``~:.~:,~.P:_N?: }~.1_~>25-5C[nJo respondent ``be _iE-````ated as a san.?``!1 for
contempt without an evidentiary hearing before a judge.''), We are confident Appellant was
afforded all proper civil procedural safeguards and the Court did not commit error or abuse its
discretion.
III. Appellant's civil contempt sentence was proper
Second, Appellant argues that he does not have the present ability to purge himself, the
Comi neglected to determine beyond a reasonable doubt whether he had the present ability to
comply, and two consecutive civil contempt sentences actually prevents Appellant from having
the "present ability" to purge himself. '(To be fOlmd in civil contempt, a party must have
violated a court ·order/ I by a preponderance of the evidence as shown by the complaining party.
Godfrey, 894 A,2d at 782 (citations omitted). Then, the alleged contemnor can show that he is
presently unable to comply with the court order. Id Non-compliance is insufficient to prove
contempt because '~[i]f the alleged contemnor is unable to perform and has in good faith
attem,pted to comply with the court order) cot:J.tempt is not proven.;' Sinaiko v. Sinaiko, 664 A.2d
1005, 1009 (Fa. Super. 1995) .'(citations omitted). "[T]he court, in imposing coercive
impriso~ent for civil contempt, s~ould set conditions fo1' purging the contempt and effecting
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release from imprisonment with which it is convinced beyond a reasonable doubt, from the
totality Qfthe evidence before it, the contemnor has the present ability to· comply." Warmkessel.
17 A3d at 415 (citations omitted).
Appellant's substantial atrearage in both cases sufficiently supports our finding by a
preponderance of the evidence that Appellant willfully violated the support orders and has not
made· good faith attempts to comply. See Godfrey,
894 A.2d at 783, Upon tms finding, the
Appellant had the opportunity to show that he was presently unable to comply, and. at his
l.Ulemployed and I don't work. I really have no income.,,22 The Court asked Appellant how he
. .
supports hi!I1self and he said, "I live with my fumily ... Every once in a while I'll do a side job
tTy to help out ... ,,23 The Court asked him how many side jobs he had worked since June and he
responded "none,,,24. Despite Appellant's statements that he was unable to comply, he had made
a support payment in April, 2013, and made a $600.00 purge payment so he could be released
fi'om incarceration in August, 2013. 25 The Court "did not find his testimony credible regarding
his lack of income since June of 2013, particularly in light oftlle purge payment of $600.00 that
was [recently] made:.26 Examining the totality of the evidence before it, the COUlt was
convinced beyond a reasonable doubt that Appellant had the present ability ~o pay the purge
payments of $500.00 in each case.
Finally, we will address Appellanes argument that by imposing two consecutive civil
contempt sentences, Appellant is prevented from having the I·present ability" to purge himself.
Appellant's argument has no meJ.it because he is not serving two consecutive civil contempt
n 'fr. of Proceedings of Bench Wjlffiill.t and Contempt Hearing, Octobm- 1"7, 2013, at 8.
231d. .
241d.
ZSld. at 6, 9. .
26 Of9.er of Court, November 25,2013,
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sentences. He is first serving an indirect criminal contempt sentence of 180 days where he is
eligible for, work release and then a consecutive civil contempt sentence of 120 days with a purge
amount. Appellant must serve his criminal sentence first) and is' not entitled to a purge payment.
He is therefore conect in the fact that he does not have the "present abiliti) to purge himself.
Appellant's criminal contempt sentence has a punitive purpose and punishes him for his failure
to appear, At the termination ofbis 180 day sentence criminal, Appellant will begin to serve his
civil contempt sentence and only then will he be able to purgehlmself.
CONCLUSION
The Court properly held Appellant in both criminal and civil contempt of court. In light
of the foregoing reasonS, the Court did not commit an abuse of discretion or error of law because
Appellant was afforded all necessary criminal and. civil rights pursuant to each respective
contempt finding. In the civil contempt proceeclings) the Court found, boyond a reasonable
doubt, that Appellant bad the present '."-:' ..
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IN THE COURT OF C0:M1\10N PLEAS OF THE 39'fB .JU])ICIAL
DISTRICT OF PENNSYLVANIA ~- FRANKLIN COUNTY BRANCH
.
Domestic Relations Section "
Kathleen M. O'Connor, Civil Action - Law In Support
Plaintiff
No. DRS 2006-00915
v.
Robert C. Kemmerer, PACKEs Case No. 875108741
Defendant
Honorable Carol L. Van Horn
IN THE COURT OF COIYIMON PLEAS OF THE 39TH JUDICIAL
DISTRICT OF PENNSYLVANIA - FRANKLIN COUl\TY BRANCH
Domestic-Relations Section
Diana L. Swis~el', Civil Action - Law In Support
Plaintiff
. No. DRS 1999-00675
v.
Robert C. Kemmerer, PACSES Case Nd. 631101412
. Defendant
Honorable Carol L. Van Horn
ORDER OF THE COURT
~ . .
AND NOW TIDS J.f[.UAY OF December, 20'13 pursuant to Pa,RA.P, 1931(c),
IT IS HEREBY ORDERED THAT the Prothonotary of Franklin County shall promptly
transmit to the Prothonotary of the Superior Court the record in this matter along with the
,attached Opinion sur Pa,R,A.P, 1925(a), .
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The Prothonotary shall immediatelydooket this Opinion and Order of Court and record
in the docket f1!e date it was made. The Prothonotary shall forthwith fornish a copy of the
Opinion and Order of Court, by mail or personal delivery, to each party or attorney, and shall
record in the docket the time and manner thereof .
By the Cour4
Carol L. Van Horn, J.
copies:
Domestic Relations Office
.___~nni!`` .. N``~'1..~q"J;:Q.``Uor .Q..Q.lD.``tic_Reh!.tio.ns _.... "__ ._. __ " .... _.~ __ . ``." . _....... _~_. _..
+-----------Imtlrony Eo Miley., Esq., counset1'OrDe~.;an,;t--~....:.....:..=.::..:..=``---------------
17