Estate of DiSabato, Dec'd. Appeal of DiGiovanni, P

J-A08041-17
2017 Pa. Super. 185
IN RE: ESTATE OF HELEN J. : IN THE SUPERIOR COURT OF
DISABATO, DECEASED : PENNSYLVANIA
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APPEAL OF: PETER DIGIOVANNI :
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: No. 692 EDA 2016
Appeal from the Order Entered February 3, 2016
In the Court of Common Pleas of Chester County
Orphans’ Court at No(s): 1506-0528
BEFORE: PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JUNE 13, 2017
Pro se Appellant, Peter DiGiovanni, challenges the Order entered by
the Court of Common Pleas of Chester County, Orphans’ Court division,
finding him in “continuing contempt” for his failure to make scheduled
payments to an estate for which he previously acted as administrator. We
affirm.
On December 18, 2015, and February 3, 2016, the Orphans’ Court of
Chester County entered Orders declaring Appellant Peter DiGiovanni to be in
continuing contempt of the court’s previous Orders of July 18, 2012, August
6, 2013, and July 29, 2014. The previous Orders directed DiGiovanni to pay
$500.00 per month to the Co-Executors until he paid off a $29,279.55 debt
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*
Former Justice specially assigned to the Superior Court.
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representing costs and fees incurred by the Estate in succeeding DiGiovanni
as executor/administrator back in 2007.1
As for the July 18, 2012, Order, DiGiovanni argued that the court
expressly acknowledged that he had no present ability to comply with the
Order and directed him to liquidate property declared exempt from his
Chapter 7 bankruptcy proceedings. Of note, Appellee’s Co-Executors had
previously prevailed upon the bankruptcy court that DiGiovanni’s debt to the
estate was non-dischargeable because it was caused by DiGiovanni’s willful
behavior and misconduct.
DiGiovanni argued that the trial court’s July 18, 2012, Order
wrongfully imposed a new financial obligation upon him. On direct appeal,
this Court affirmed the trial court’s Order, but it remanded the matter for the
court to enter a new Order calling for the sale of items not protected under
the federal bankruptcy law.
On July 29, 2014, another hearing upon a Petition for Contempt
resulted in an Order reiterating DiGiovanni’s obligation to make $500
payments every month until he paid off the $29,279.55-plus-interest sum.
The Order further declared that any failure of DiGiovanni to comply with this
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1
Then-Orphans’ Court Judge Paula Francisco Ott entered two Orders finding
DiGiovanni in contempt: one requiring payment of $23,070 for costs
incurred in connection with the prosecution of the Demkos’ contempt petition
and for additional attorneys’ fees incurred to complete administration; and
one requiring him to pay $6,209.55 for income tax.
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or any previous Order would entitle Appellee Estate, through the Co-
Executors, to obtain a Review Hearing. DiGiovanni never appealed from this
Order.
On January 23, 2015, Appellee requested a Review Hearing for
DiGiovanni’s continuing failure to comply with the Order. At the April 28,
2015, hearing, DiGiovanni admitted to receiving payments in cash for odd
jobs, electrical work, and law clerking, as his license to practice law had
been suspended since 2010. He actually had been eligible to seek
reinstatement of his license since 2011, but he claimed he could not afford
the approximately $4,500 in costs and fees necessary to accomplish
reinstatement.2
Near the conclusion of the hearing, the Orphan’s Court summarized
the frustration of DiGiovanni’s chronic failure to make regular payments
despite every appearance that he possessed the ability to earn more income
than he was earning:
THE COURT: Okay. The conundrum for me, Mr. DiGiovanni, is
you have never denied, at least not recently, that you owe the
money, that it should be coming in on a regular basis and that
you need to be working in order to do that, and then the wheels
fall off, and frankly I am not inclined to keep awarding counsel
fees, it’s just not – there comes a point at which it is completely
counterproductive.
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2
Given the suspension of DiGiovanni’s law license and his election not to
seek its reinstatement, we disapprove of his use of the title, “Esquire,” in his
filings with this Court.
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On the other hand, I have not found the approach or the
sanction that seems to really work and seems to be the
motivation that there tended to be in order to have you make
payments that you’re called to make, which payments, by the
way, were a tremendous break from the lump sum that was due,
and I recognize that.
I mean, receiving a $500 a month [obligation] over time when
the principal amount is somewhere in the $28,000 range, that a
long time it’s going to take, but I want the Demkos to be made –
the estate to be made whole, if at all possible.
We have been through a lot. We’ve been through bankruptcy,
we’ve been through cyclical inability to obtain any kind of work,
and I think one of the frustrations, Mr. DiGiovanni, is that you do
a pretty darn good job of putting together information for the
Court when push comes to shove. Your exhibits are clear, your
tax return’s clear. I mean, I know that’s a program, but
nonetheless, you work with attorneys who find your work
sufficiently good that they’re willing to have you come back and
do more for them.
…
So obviously you’re capable, the question is now how do we turn
that into something that gets you out of my courtroom, out of
my hair, out of their hair and gets you out from under this
obligation, and I’m listening for suggestions at this point because
counsel fees haven’t done anything.
N.T. 4/18/15 at 195-97. The court later declared that it did not “have any
questions really at this point that Mr. DiGiovanni’s in continuing contempt.”
N.T. at 202.
Counsel for Appellee then suggested the option of a civil contempt
Order with a conditional jail sentence giving the contemnor the opportunity
to purge the contempt and avoid the sentence by compensating Appellee
with payment of a designated amount based on his present ability to pay.
N.T. at 197. Counsel reminded the Court that its predecessor in this case,
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Judge Ott, ordered the incarceration of DiGiovanni on similar terms, and he
managed to come up with the necessary funds at that point to purge his
contempt. Counsel posited that DiGiovanni does not take his obligation to
the Estate seriously and believes he can “talk his way out of just about
anything.” N.T. at 198. He therefore asked the court to impose the sanction
of civil contempt incarceration with a purging condition.
DiGiovanni immediately opposed the suggestion, arguing that the
option is exclusive to matters involving contempt of child support Orders.
Counsel for Appellee Estate cited a case authorizing the mechanism to
enforce compliance with an agreement, but the Court noted that the statute
relied upon in that case was also found in the Divorce Code.
The Court then commented on how DiGiovanni’s obvious skill in
practicing law only reinforces its belief that more needed to be done to
motivate him into meeting his obligations:
THE COURT: I find your acumen remarkable, Mr. DiGiovanni. I
mean, I have lawyers who practice in front of me all the time
who wouldn’t have thought right off the bat that that isn’t
actually authorized by the support laws that were – I mean, you
know, not that anybody’s ever [decided in this respect], but
you’re no dummy, okay, so it appears you’ve got acumen,
you’ve got skills.
N.T. at 203. With that observation, the court found it reasonable to insist
that DiGiovanni expand his paralegal/clerking services—if he will not seek
reinstatement to the bar—and use the proceeds to pay off this debt at the
rate of $500 a month consistent with the prior Order. N.T. at 204-205. The
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court also noted the display of “help wanted” signs in town if DiGiovanni was
in need of additional work, regardless if it was not commensurate to his
education, to meet his obligations.
The Court concluded by giving DiGiovanni 10 days to submit authority-
based argument that civil contempt incarceration was unauthorized in this
context. The record is silent on whether DiGiovanni filed a submission with
the Court.
On December 18, 2015, the Orphan’s Court entered an Order based on
its findings from the April 28, 2015, hearing. The Order found DiGiovanni in
“continuing contempt” for failing to make payments as directed in the
previous Orders, placed him on “probation,” and stated that the terms of
said probation required DiGiovanni to pay $1,000 by January 5, 2016, and
thereafter pay $500 by the 21st day of each month, starting in February.
Failure to comply with these terms, the Order instructed, may result in the
imposition of fees, costs, and fines, as well as the issuance of a bench
warrant for DiGiovanni’s commitment to Chester County Prison for 3 months
or until such time as he purges his contempt by remitting all payments
missed between the December 18, 2015, date of the Order and the date of
the bench warrant.
DiGiovanni filed exceptions to the Order, but the court denied his
exceptions on February 3, 2016. This timely appeal followed.
In all, Appellant DiGiovanni raises numerous issues to support two
overarching themes in his appeal positing that evidence of his contempt was
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lacking and the December 18, 2015, Order imposed unlawful criminal
contempt sanctions. As explained below, we disagree with DiGiovanni’s
positions, as we find ample evidence of his continuing contempt of the
court’s prior Orders and conclude that the court’s contempt Order aimed to
compel compliance by setting forth an appropriate purging condition
carefully measured in accordance with testimonial evidence relating to his
present ability to pay. The purging amount, thus, did not represent a
modification of the prior Orders and amounted to only one month’s worth of
arrearages tacked on to the scheduled December 21, 2015, payment that
was nearly due. DiGiovanni had failed to pay regularly under the prior Order
for eight years. We likewise reject DiGiovanni’s suggestion that the
imposition of probation within the Order constituted a de facto criminal
punishment unauthorized by 42 Pa.C.S.A. §§ 4132 and 4133.3
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3
Sections 4132 and 4133 provide, respectively:
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;
(Footnote Continued Next Page)
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The power to punish for contempt, including the power to
inflict summary punishment, is a right inherent in the courts and
is incidental to the grant of judicial power under the Constitution.
Colbert v. Gunning, 533 A.2d 471, 472 (Pa.Super.1987). The
court may order civil or criminal contempt.
The characteristic that distinguishes civil from criminal contempt
is the ability of the contemnor to purge himself of contempt by
complying with the court's directive. If he is given an
opportunity to purge himself before imposition of punishment,
the contempt Order is civil in nature. If the purpose of the Order
is to punish despite an opportunity to purge, the Order is
criminal in nature. Id.
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(Footnote Continued)
Except as otherwise provided by statute, the punishment of
commitment for contempt provided in section 4132 (relating to
attachment and summary punishment for contempts) shall
extend only to contempts committed in open court. All other
contempts shall be punished by fine only.
42 Pa.C.S.A. § 4133.
In Stewart v. Foxworth, 65 A.3d 468 (Pa.Super. 2013), this Court
recognized that
[v]iolations of section 4132 are viewed as criminal contempt. To
find direct criminal contempt:
There must be proof beyond a reasonable doubt of (1)
misconduct; (2) in the presence of the court; (3)
committed with the intent to obstruct justice; and (4)
that obstructs the administration of justice. Misconduct is
behavior that is inappropriate to the role of the actor.
Wrongful intent will be found where the contemnor knows
or reasonably should be aware that his conduct is
wrongful.
Id. at 471-72.
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A court may exercise its civil contempt power to enforce
compliance with its Orders for the benefit of the party in whose
favor the Order runs but not to inflict punishment. Id. A party
must have violated a court Order to be found in civil contempt.
[Goodman v. Goodman, 556 A.2d 1379, 1391 (Pa.Super.
1989)]. The complaining party has the burden of proving by a
preponderance of evidence that a party violated a court Order.
C.R. by the Guardian of her Estate, Dunn v. The Travelers,
626 A.2d 588, 592 (Pa.Super. 1993).
However, a showing of non-compliance is not sufficient in itself
to prove contempt. Wetzel v. Suchanek, 541 A.2d 761, 762
(Pa.Super. 1988). If the alleged contemnor is unable to perform
and has in good faith attempted to comply with the court Order,
contempt is not proven. Id. (emphasis in original). The alleged
contemnor has the burden of proving the affirmative defense
that he has the present inability to comply with the court Order.
Commonwealth ex rel. Ermel v. Ermel, 469 A.2d 682, 683
(Pa.Super. 1983). A court cannot impose a coercive sentence
conditioned on the contemnor's performance of an act which is
incapable of performance. Crozer–Chester Medical Center v.
Moran, 560 A.2d 133, 137 (Pa. 1989). To impose civil
contempt the trial court must be convinced beyond a reasonable
doubt from the totality of evidence presented that the contemnor
has the present ability to comply with the Order. Wetzel, 541
A.2d at 764.
Sinaiko v. Sinaiko, 664 A.2d 1005, 1009 (Pa.Super. 1995) (internal
quotation marks and parallel citations removed). See also Orfield v.
Weindel, 52 A.3d 275, 278–279 (Pa.Super. 2012) (“The purpose of a civil
contempt Order is to coerce the contemnor to comply with a court Order.”);
and Markey v. Marino, 521 A.2d 942, 945 (Pa.Super. 1987) (recognizing
only civil contempt must contain “conditions on the sentence so as to permit
the contemnor to purge himself; he must be allowed to carry the keys to the
jail in his pocket.”).
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First, as for the alleged lack of evidence to support the court’s Order,
we note that the record of the April 28, 2015, evidentiary hearing shows that
the Orphans’ Court carefully assessed DiGiovanni’s testimony relating to his
present ability to meet his $500 monthly obligation. In the court’s view,
DiGiovanni possessed enviable legal acumen making him quite capable of
earning enough money, but either his motivation or desire to do so was
lacking or he was not being entirely forthright in reporting his income, as
evidenced by DiGiovanni’s admission to receiving cash payments for certain
jobs. We find no abuse of discretion in this determination, as the record
supported it and this Court made similar findings in our disposition of
DiGiovanni’s direct appeal in 2013.
As for whether the “probationary” mechanism within the Order
reflected a criminal rather than a civil measure, several aspects to the
mechanism are insightful. First, the Order clearly incorporates all findings
from the April 28, 2015, evidentiary hearing, and these findings, as noted
supra, include the court’s determination that DiGiovanni had the present
ability to pay the purging condition. In this regard, moreover, the purging
condition amounted only to an initial payment of one months’ arrearage plus
an upcoming scheduled $500 monthly payment, to be followed by the
resumption of the prescribed $500 per month payment schedule in the
ensuing month. In this respect, the clear purpose of the Order was not to
punish DiGiovanni but, instead, to compel obedience to the prior Orders and
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compensate Appellee Estate for injuries resulting from DiGiovanni’s
continuing noncompliance.4
Second, although the Order’s use of the term “probation” may facially
suggest a criminal sanction, the probationary mechanism within the Order is
clearly civil in that it simply acknowledges DiGiovanni’s chronic
noncompliance with the prior Orders and otherwise conforms to the
requirement that DiGiovanni, as a civil contemnor, be subject to a purging
amount that is within his ability to pay. As noted above, we have found the
record to support the court’s conclusion that DiGiovanni possessed the
present ability to comply with the December 18, 2015, Order.
Concomitantly, DiGiovanni produced no evidence creating a reasonable
doubt that he lacked the present ability to comply with the Order.
The Order in question also addresses potential obligations in the event
DiGiovanni fails to comply with the terms of his present “probation.” While
the Order directs that noncompliance “may result in the imposition of fees,
costs, and fines” as well as commitment to jail subject to release upon
payment of a purging amount, it is undisputed that the court imposed none
of these measures as of the date of DiGiovanni’s notice of appeal. It is well-
settled that “until sanctions are actually imposed, an Order declaring a party
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4
It is for this reason, as well, that we conclude the court did not modify the
terms of the prior Order through its Order of December 18, 2015, but simply
exercised its power to enforce compliance with active prior Orders in the
wake of DiGiovanni’s intractable refusal to do so.
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in contempt is interlocutory and not appealable.” See Rhoades v. Pryce,
874 A.2d 148, 151 (Pa.Super. 2005). Thus, we decline to address this
aspect of DiGiovanni’s claim that the Order imposed criminal sanctions.
As we have determined that the court’s December 18, 2015, Order
was civil, not criminal, in nature, we reject DiGiovanni’s claims charging
error with the court’s noncompliance with Sections 4132 and 4133 of Judicial
Code, which apply exclusively to orders imposing summary punishments for
contempts of court.
The record, therefore, belies DiGiovanni’s contentions that the court
acted without evidentiary support, unlawfully modified the terms of its prior
Order, and imposed criminal contempt sanctions. The court entered its
December 18, 2015, Order consistent with its authority to compel obedience
to a prior Order and to compensate Appellee Estate for injuries sustained
because of DiGiovanni’s chronic nonpayment. Because the sanctions were
tailored to DiGiovanni’s ability to comply, they were strictly civil in nature
and, thus, outside the ambit of Sections 4132 and 4133.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2017
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