Com. v. Fishel, R.

• Court: Superior Court of Pennsylvania
• Decided: April 30, 2025
• Docket: 526 WDA 2024
• Status: Unpublished

Opinion

J-S06013-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RODNEY JOSEPH FISHEL : : Appellant : No. 526 WDA 2024

Appeal from the Order Entered March 1, 2024 In the Court of Common Pleas of Clarion County Criminal Division at No(s): CP-16-CR-0000219-2013

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RODNEY JOSEPH FISHEL : : Appellant : No. 1014 WDA 2024

Appeal from the Order Entered March 1, 2024 In the Court of Common Pleas of Clarion County Criminal Division at No(s): CP-16-CR-0000196-2014

BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY PANELLA, P.J.E.: FILED: APRIL 30, 2025

Rodney Joseph Fishel appeals from the order entered March 1, 2024,

holding him in contempt of court for failing to pay fines and costs on two

dockets. Fishel challenges the court’s finding that he has the ability to pay the

purge amount of $472.98. After careful review, we affirm in part and vacate

in part. J-S06013-25

Fishel pled guilty to simple assault on docket CP-16-CR-0000219-2013

on September 11, 2013. As part of the sentence imposed, Fishel was ordered

to pay the costs of prosecution and court costs. Fishel pled guilty to simple

assault on docket CP-16-CR-0000196-2014 on May 7, 2014. As part of the

sentence imposed, Fishel was again ordered to pay the costs of prosecution

and court costs. Fishel made periodic payments over the next several years,

resulting in twelve hearings for non-payment of these costs and four bench

warrants for failing to appear at the hearings.

Although Fishel was subjected to many hearings for non-payment, this

is the first time he has been held in contempt for failing to pay these costs.

The trial court aptly provided the following procedural history related to this

appeal:

On October 30, 2023, a bench warrant hearing was held … . The bench warrant was issued due to [Fishel’s] failure to appear at a fines and costs hearing. At the bench warrant hearing, [Fishel] testified he was working and able to pay the past due balance of $225.00, therefore, he was ordered to pay $225 towards his fines and costs balance or report for a contempt hearing on November 28, 2023. [Fishel] failed to pay the amount ordered and also failed to appear for the contempt hearing on November 28, therefore a bench warrant was issued. [Fishel] was eventually apprehended on the bench warrant and on February 1, 2024, a bench warrant hearing was held at which time [Fishel] explained he was working but not getting paid. It was ordered by the Honorable James G. Arner to schedule a contempt hearing for failure to make payments and failure to appear for court proceedings.

On February 27, 2024, a contempt hearing was held, and [Fishel] was found in contempt for failure to make any payments towards his fines and costs since March 2023 and for specifically failing to comply with the court’s October 30, 2023 order. [Fishel] was ordered to serve a sentence of sixty (60) days of incarceration

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for contempt subject to the condition that he could purge himself of the incarceration sentence by paying the balance due in the amount of $472.98. At the hearing, th[e trial] court made a finding that [Fishel] did have the ability to pay but willfully failed to do so because he willfully quit his job and did not obtain gainful employment thereafter.

On March 8, 2024, [Fishel] filed a motion for reconsideration requesting that his February 27, 2024, sentence be modified. On March 25, 2024, th[e trial] court denied the motion. On April 25, 2024, [Fishel] filed a [n]otice of [a]ppeal. On April 26, 2024, th[e trial] court ordered a concise statement of errors complained of on appeal. On May 17, 2024, [Fishel] filed a [c]oncise [s]tatement of [m]atters [c]omplained of on [a]ppeal [p]ursuant to Rule 1925(b)[.]

Trial Court Opinion, 8/6/24, at 1-2 (pagination provided).

Fishel raises one issue for our review:

Whether the [t]rial [c]ourt erred by holding Mr. Fishel in contempt for nonpayment of his fines and court costs, when Mr. Fishel lacked the ability to make payment on those financial obligations?

Appellant’s Brief, at 4.

Before we address the merits of this appeal, we must determine if we

have jurisdiction to hear it. See Commonwealth v. Gaines, 127 A.3d 15, 17

(Pa. Super. 2015) (en banc) (“We may raise issues concerning our appellate

jurisdiction sua sponte.”) (citation omitted). Fishel purports to appeal from the

order denying reconsideration. See Notice of Appeal, 4/25/24 (unpaginated).

Generally, when an appellant files a motion for reconsideration of a final order, they must file a protective notice of appeal to ensure preservation of their appellate rights if the court does not expressly grant reconsideration within the thirty-day appeal period prescribed under Pa.R.A.P. 903(a). In other words, the mere filing of a motion for reconsideration does not toll the thirty- day appeal period[.]

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Commonwealth v. Zieglar, 322 A.3d 256, 262 (Pa. Super. 2024) (citation

omitted).

Fishel was convicted of indirect civil contempt, as he held the keys to

the jailhouse doors by virtue of the purge condition. See In re Estate of

DiSabato, 165 A.3d 987, 992 (Pa. Super. 2017) (“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.”) (citations

As Fishel was convicted of indirect civil contempt, he did not have a right

to file a post-sentence motion pursuant to Pa.R.Crim.P. 720, as that only

applies to criminal proceedings. Fishel did, however, file a motion for

reconsideration. The court denied the motion on March 26, 2024, and Fishel

thereafter filed his notice of appeal, on April 25, 2024. As Fishel’s order of

contempt was entered on March 1, 2024, this notice of appeal was facially

untimely. See Pa.R.A.P. 903(a) (providing a notice of appeal must be filed

within 30 days); Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super.

2000) (holding “that an appeal from an order denying reconsideration is

improper and untimely.”) (citation omitted).

That does not end our inquiry, however, as the trial court incorrectly

advised Fishel in its order denying reconsideration that he had 30 days to file

a notice of appeal. See Order, 3/26/24 (single page). “[I]t has long been the

law of this Commonwealth that the failure to file a timely appeal as a result of

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a breakdown in the court system is an exception to th[e] general rule [that no

court has the authority to extend the time for filing a notice of appeal].”

Commonwealth v. Stansbury, 219 A.3d 157, 160 (Pa. Super. 2019)

(citation omitted). We have previously declined to quash untimely appeals and

found a breakdown in the court’s operation when the trial court misstates the

applicable appeal period. See Commonwealth v. Patterson, 940 A.2d 493,

499 (Pa. Super. 2007) (untimely post-sentence motion did not toll appeal

period, however, there was a breakdown in court operations as it did not

inform defendant that the untimely post-sentence motion did not toll appeal

period); Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003)

(incorrectly advised defendant of time for filing reconsideration and a notice

of appeal creating a breakdown in court operations). Because the trial court

incorrectly advised Fishel he had 30 days to appeal, we find a breakdown in

court operations and decline to quash this untimely appeal.

We now turn to the merits of Fishel’s claim. We review an order holding

a person in contempt for an abuse of discretion. See Commonwealth v.

Smetana, 191 A.3d 867, 870 (Pa. Super. 2018). “Discretion is abused when

the course pursued represents not merely an error of judgment, but where

the judgment is manifestly unreasonable or where the law is not applied.” Id.

(citation and brackets omitted).

There are three elements that must be met to find someone in indirect

civil contempt of court: “(1) that the contemnor had notice of the specific

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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.” Hanbicki v. Leader, 294 A.3d 1234,

1241 (Pa. Super. 2023) (citation omitted).

“The purpose of a civil contempt order is to coerce the contemnor to

comply with a court order.” Hyle v. Hyle, 868 A.2d 601, 604-05 (Pa. Super.

2005) (citation omitted). As Fishel’s contempt is for failure to pay on his court

costs and fines that arose from his criminal convictions, we turn to the

Sentencing Code for guidance.

Section 9730(b)(1) of the Sentencing Code provides that when “a

defendant defaults on [his] payment of court costs, restitution, or fines[,]” a

court “may conduct a hearing to determine whether the defendant is

financially able to pay.” 42 Pa.C.S.A. § 9730(b)(1). Only after a hearing and

a determination that the defendant is financially able to pay can the court

impose imprisonment for nonpayment. See 42 Pa.C.S.A. § 9730(b)(2);

Commonwealth v. Diaz, 191 A.3d 850, 866 (Pa. Super. 2018) (observing,

“prior to imprisoning a contemnor for failure to pay fines or costs, the trial

court must render findings of fact on the contemnor’s financial resources.”)

(citations omitted).

This Court has held that a trial court may not sentence an offender for

failure to pay without providing the offender an opportunity to establish their

inability to pay. See Smetana, 191 A.3d at 871. “The alleged contemnor has

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the burden of proving the affirmative defense that he has the present inability

to comply with the court [o]rder.” DiSabato, 165 A.3d at 992 (citation

omitted). While it is the contemnor’s burden to show he has the present

inability to comply with the order, the court may not impose imprisonment

unless “it is convinced beyond a reasonable doubt, from the totality of the

evidence before it, the contemnor has the present ability to comply.” Hyle,

868 A.2d at 604-05 (emphasis and citations omitted).

Here, Fishel does not dispute he had notice of the orders imposing costs

and fines nor that he did not make his monthly payments on his costs and

fines since March of 2023. See Appellant’s Brief, at 5. Fishel argues he does

not have the present ability to pay his costs and fines, and therefore, the order

holding him in contempt of court was illegal. See id. at 12. Fishel asserts his

testimony at the costs and fines hearing established he “had no money to his

name.” Id. at 11-12.

Fishel asserts he established the affirmative defense through his

testimony that he does not have a job, applied for jobs but has not been hired

by any, lives with friends and does not pay any rent, and has “no money to

his name.” Id. at 10-12. The trial court found Fishel was not diligent in his job

search and noted Fishel voluntarily quit his last job. See Trial Court Opinion,

8/6/24, at 3 (pagination added for ease of reference). Because Fishel quit his

job and was not diligent in his job search, the trial court found Fishel willfully

failed to pay his fines and costs.

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Our review of the record confirms that the trial court’s finding of

contempt was warranted. Fishel has only made 11 payments on these two

dockets since 2015, requiring the trial court to schedule 12 fines and costs

hearings. Clearly, the trial court exhibited great patience in its dealings with

Fishel. This is the first time a contempt hearing was held on Fishel’s failure to

pay his fines and costs. The record demonstrates he voluntarily quit his job

without any leads on a new one. See N.T. Hearing, 2/27/24, at 14. He then

continued to inform the court he could pay his fines and costs. See id. at 4,

8, 13 (the Commonwealth and Fishel both represented to the court that Fishel

stated during a prior proceeding in October of 2023 that he could make a $225

payment on his fines and costs). Fishel made no payments after voluntarily

quitting his job. We therefore find sufficient evidence that Fishel willfully failed

to pay on his fines and costs.

However, we find the trial court erred in establishing the purge amount

at $472.98, as the evidence at the hearing showed Fishel had no current ability

to pay that amount. “The law in this Commonwealth is … that the trial court

must set the conditions for a purge in such a way as the contemnor has the

present ability to comply with the order.” Hyle, 868 A.2d at 605 (emphasis

in original, citations omitted). As there was no evidence presented that Fishel

had the present ability to pay the purge amount and could only do so on the

future potential of obtaining a job, we are constrained to vacate the purge

condition of the court order. See id., 868 A.2d at 605 (vacating purge amount

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because “[a]ppellant’s ability to comply with the purge set by the trial court

will only occur sometime in the future[.]”). We remand for the trial court to

determine what conditions will be sufficiently coercive to obtain Fishel’s

compliance with the court order requiring him to pay his costs and fines.

Order affirmed in part and vacated in part. Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.

DATE: 4/30/2025

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