J-S06012-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN RE: CIVIL CONTEMPT : IN THE SUPERIOR COURT OF : PENNSYLVANIA : APPEAL OF: A.G. : : : : : : No. 1568 EDA 2023
Appeal from the Order Entered May 5, 2023 In the Court of Common Pleas of Philadelphia County Family Court at No(s): CP-51-JM-0000022-2022
MEMORANDUM PER CURIAM: FILED SEPTEMBER 24, 2024
A.G. (“Aunt”) appeals from the trial court’s order finding her in civil
contempt. For the reasons discussed below, we vacate the finding of
contempt.
The instant matter arises from dependency proceedings concerning
Aunt’s nephew, K.B. (“Child”), born in 2010. See Aunt’s Brief at 5. The trial
court adjudicated Child dependent in July 2020. See id. Case manager
Natasha Triplett (“Ms. Triplett”) from Turning Point Children’s Community
Umbrella Agency (“CUA”) was the caseworker for Child. See N.T., 12/16/22,
at 5-6.
In July 2022, Child ran away from placement to Aunt’s house. See id.
at 6. Ms. Triplett permitted Child to remain with Aunt pending evaluation of
Aunt as a kinship resource by the Philadelphia Department of Human Services
(“DHS”). See id. In October 2022, DHS rejected Aunt’s application because J-S06012-24
of allegations of domestic violence, inappropriate discipline, and mental health
issues involving both Aunt and her paramour. See id. Ms. Triplett
immediately contacted Aunt to inform her Child would be removed. See id.
at 7. However, when Ms. Triplett went to Aunt’s home, Aunt refused to release
Child, necessitating police involvement. See id. Aunt then sent threatening
text messages to Ms. Triplett, her supervisor, and her director. 1 See id. at 8.
In early November 2022, Child ran away from his new placement and
returned to the home of his mother, L.B. (“Mother”). See id. Ms. Triplett
returned Child to placement, but Child again ran away. See id. at 8. DHS
hired a private investigator (“P.I.”) to try to locate Child. See id. According
to Ms. Triplett, the P.I. told her Mother refused to cooperate and Aunt claimed
she knew where Child was but would not disclose the location. See id.
On December 6, 2022, a review hearing took place in front of a hearing
officer. Child appeared at the hearing. See id. at 10. Following the hearing,
Ms. Triplett went to a waiting area in the courthouse to speak with Child and
Mother about his return to placement. See id. At that point, Aunt approached
Ms. Triplett and told her, as Ms. Triplett testified, she was going to “smack the
mask off my F’ing face.” Id. at 10-11. Ms. Triplett approached a court officer
to ask for assistance from a sheriff. Aunt “charged” her and threw a punch at
her. Id. at 11. Ms. Triplett rushed back into the courtroom and “the door had
____________________________________________
1 The text messages were not entered into evidence. See N.T., 12/16/22, at 8.
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to be held shut to keep [Aunt] from getting in.” Id. In the confusion, Child
again ran away. See id. at 12.
The trial court held a review hearing on December 16, 2022. Although
counsel for all parties were present, Mother and Aunt were not. See id. at 2,
4. After presenting the above-discussed testimony from Ms. Triplett, the
assistant city solicitor (“ACS”) requested and received a stay-away order on
Ms. Triplett’s behalf against Mother and Aunt. See id. The trial court then
sua sponte ordered both Mother and Aunt be subpoenaed for the next hearing,
and stated:
[t]here will be a rule to show cause at the next listing with respect to [M]other as to why she should not be held in contempt.
At the next listing, it is this court’s belief that we will appoint [A]unt an attorney or give her an opportunity to have her own attorney if she shows up; at which point, we will give a date for a rule to show cause as to why she should not be held in contempt.
Id. at 13 (capitalization standardized); see also Permanency Review Order,
12/16/22, at 1. The trial court also issued a fill-in-the-blank document entitled
“Rule to Show Cause-Civil Contempt.” In it, the trial court explained Aunt was
to appear at the next hearing “to show why she should not be held in contempt
for not cooperating with DHS.” Rule to Show Cause, 12/16/22 at 1
(unnumbered) (emphasis added).
Mother and Aunt both appeared at the next hearing. See N.T., 1/26/23,
at 3-4. Ms. Triplett again testified as to the events which occurred on
December 7, 2022. See id. at 6-7. In addition, for the first time, Ms. Triplett
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averred, when she left the courthouse on December 7, 2022, Mother barked
at her like a dog and said, “[W]e’ll see you when you have [to] come out to
the house.” Id. at 7. Both Mother and Aunt testified they were unaware of
Child’s whereabouts. See id. at 7-8. The trial court directed that counsel be
appointed for both Mother2 and Aunt and told both women that they would be
incarcerated if Child was not returned to placement by the next hearing. See
id. at 8-9.
The record demonstrates the police located Child and returned him to
placement before the next scheduled hearing. See N.T., 3/2/23, at 16.
Despite this, the trial court indicated it would proceed with the contempt
hearings. See id. at 7. However, Edelina Schuman, court-appointed counsel
for Aunt (“Counsel”) immediately sought a continuance. See id. Counsel
attempted to explain that she had been unable to obtain both transcripts and
basic information about the underlying dependency case because Aunt “is not
a party to the original [dependency] case. . ..” Id. at 8 (emphasis
added); see also id. at 7-11 (Counsel explains that court administration could
not figure out how she was supposed to bill for her services and would not
permit her to order transcripts). Ultimately, the trial court granted the request
for a continuance but proceeded with a contempt hearing against Mother. See
id. at 11-21. Following additional testimony by Ms. Triplett, the trial court
2 The record reflects Mother was already represented by counsel. See N.T., 12/16/22, at 4; N.T., 1/26/23, at 4.
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found Mother to be in contempt based upon her actions in “barking” at Ms.
Triplett and threatening, “We’ll see what’ll happen when you come out to the
house.” Id. at 14, 22. The trial court sentenced Mother to thirty days in jail. 3
See id. at 23.
At the rescheduled contempt hearing for Aunt, Counsel requested an
additional continuance, explaining she had not received the final transcript for
the March 2, 2023, proceeding until that morning. See N.T., 4/17/23, at 4-
5. Despite its initial disinclination, the trial court ultimately continued the
hearing. In so doing, the trial court agreed with counsel’s assertion that this
was a civil contempt proceeding. See id. at 6-7.
The proceedings resumed four day later. The hearing was chaotic
making the transcript difficult to read because all participants continually
interrupted each other. Additionally, parts of the hearing were not transcribed
due to mechanical difficulties. See N.T., 4/21/23, at 1-36.
The trial court sought to take judicial notice of Ms. Triplett’s prior
testimony and admit the notes of testimony of Mother’s contempt hearing.
See id. at 4. Counsel objected, noting she had not been present for Mother’s
contempt hearing and had no opportunity to cross-examine Ms. Triplett. See
id. at 5-6. The trial court agreed it would allow Counsel to cross-examine Ms.
3 Mother does not appear to have appealed the finding of contempt.
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Triplett but admitted the prior notes of testimony over Counsel’s objection.
See id. at 6.
Counsel requested the trial court recuse itself because the court had
“already shown a predisposition, based on the prior hearings, to fine my client
and incarcerate her, and that is not due process or justice.” Id. at 7. The
trial court denied the request. See id. at 7-8.
Counsel moved to dismiss the contempt proceedings for lack of
jurisdiction because Aunt was not a proper subject of contempt. See id. at
8-11. The trial court refused to entertain the application, until after the
evidentiary hearing. See id. at 11.
Counsel argued the trial court was conflating civil contempt with criminal
contempt and that civil contempt was improper because the court had failed
to set a purge condition and the purpose of the contempt was not to coerce
Aunt into complying with a court order. See id. at 11-12. The court
responded that, “[w]hen I initially said contempt, [I] meant to say . . . indirect
criminal contempt . . ..” Id. at 15 (emphasis added). The court continued,
“[i]f I did in fact say civil contempt . . . then I’m going to rectify that, and we
will go forward at another time on an indirect criminal procedure[.]” Id.4 The
trial court took a recess to consult with its law clerk and concluded it could go
4 As noted above, the rule to show cause, stated this was a civil contempt proceeding. See Rule to Show Cause, 12/16/22, at 1 (unnumbered).
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forward with a civil contempt proceeding and proceed later on criminal
contempt; it later declared it would restrict itself to a civil contempt
proceeding. Id. at 14.
Counsel stated the controlling statute did not allow for incarceration for
civil contempt.5 See id. at 16. The trial court refused to allow Counsel to
make further argument and directed her to present her evidence. See id. at
16-17. After additional argument as to whether the proceedings were properly
characterized as civil or criminal contempt, and Counsel’s attempt to withdraw
because she did not practice criminal law, the trial court continued the matter,
appointed new counsel (“New Counsel”) for Aunt, and issued a rule to show
cause as to why Counsel should not be held in criminal contempt.6 See id.
at 17-36.
The court conducted an evidentiary hearing on Aunt’s contempt in May
2023. Ms. Triplett, the sole witness, testified consistently with her earlier
testimony about Aunt’s threatening behavior on December 7, 2022. See N.T.,
5 The statute provided, “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. Approximately four months later, this Court issued its decision in Commonwealth v. Davis, 302 A.3d 166 (Pa. Super. 2023), which found Section 4133 unconstitutional. See id. at 171.
6 The record does not reflect whether Counsel was ever charged with criminal
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5/5/23, at 6-7. No testimony was offered regarding any orders Aunt
disobeyed, about her possible role in hiding Child between November 2022
and January 2023, or about any involvement she may have had with Child’s
flight from the courthouse on December 7, 2022. See id. At the conclusion
of the testimony, the trial court found Aunt in contempt explaining, “the
contempt has to do with not the order, but [Aunt’s] actions with respect
to that day.” Id. at 12 (emphasis added). The court initially sentenced Aunt
to fifteen weekend days in prison, but on a later date modified the sentence
to seventy-two hours in prison. This timely appeal followed. 7
On appeal, Aunt raises four issues for our review:
1. Whether the trial court erred by finding [Aunt] was in civil contempt by violating a court order that was definite, clear[,] and specific?
2. Whether the trial court erred by finding [Aunt] was in civil contempt by violating a court order and that there was notice of that order?
3. Whether the trial court erred by finding [Aunt] was in civil contempt by violating a court order and that the act constituting the alleged violation was volitional?
4. Whether the trial court erred by finding [Aunt] in civil contempt by violating a court order and that [Aunt] acted with wrongful intent?
Aunt’s Brief at 4 (bolding omitted, capitalization standardized). 8
7 Aunt and the trial court complied with Pa.R.A.P. 1925.
8 DHS, although present, did not participate in the contempt proceedings and
did not file a brief on appeal. See Letter, 1/26/24, at 1 (unnumbered).
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As Aunt’s issues are interrelated, we address them together. Prior to
reaching the merits of Aunt’s claims, we must decide if this case is properly
before us, as the record indicates Aunt completed her sentence of
incarceration. See Trial Court Opinion, 11/17/23, at 1.
As a general rule, an actual case or controversy must exist at all stages of the judicial process, or a case will be dismissed as moot. An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case or due to an intervening change in the applicable law. In that case, an opinion of this Court is rendered advisory in nature. An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect.
*****
[T]his Court will decide questions that otherwise have been rendered moot when one or more of the following exceptions to the mootness doctrine apply: 1) the case involves a question of great public importance, 2) the question presented is capable of repetition and apt to elude appellate review, or 3) a party to the controversy will suffer some detriment due to the decision of the trial court.
In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (en banc) (internal citations
and quotation marks omitted). “The concept of mootness focuses on a change
that has occurred during the length of the legal proceedings.” In re Cain,
590 A.2d 291, 292 (Pa. 1991). “If an event occurs that renders impossible
the grant of the requested relief, the issue is moot and the appeal is subject
to dismissal.” Delaware River Preservation Co., Inc. v. Miskin, 923 A.2d
1177, 1183 n. 3 (Pa. Super. 2007).
Here, the issues of the difference between civil contempt and criminal
contempt and the parameters of a trial court’s contempt powers involve a
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question of great public importance. Accordingly, we will reach the merits of
Aunt’s claims.
We begin, as always, with our standard of review.
This Court will not reverse or modify a final [order] 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.
Diamond v. Diamond, 792 A.2d 597, 600 (Pa. Super. 2002) (citation and
internal quotation marks omitted).
In cases such as the instant matter, where there is an attachment and
summary punishment for contempt, 42 Pa.C.S.A. § 4132 provides:
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.
(1.1) The willful failure of the officers of such courts to disclose a person’s complete criminal history record information when requested.
(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.
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This Court has explained the difference between civil and criminal
contempt, and stated:
[t]he 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) (internal citations
and quotation marks omitted, emphases added). Our Supreme Court has
noted:
If the dominant purpose is to vindicate the dignity and authority of the court and to protect the interest of the general public, it is a proceeding for criminal contempt. But where the act of contempt complained of is the refusal to do or refrain from doing some act ordered or prohibited primarily for the benefit of a private party, proceedings to enforce compliance with the decree of the court are civil in nature.
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County of Fulton v. Secretary of Commonwealth, 292 A.3d 974, 1028
(Pa. 2023) (citation and internal citations omitted).
Further:
[i]f the relief provided is a sentence of imprisonment, it is remedial if the defendant stands committed unless and until [s]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 and quotation
marks omitted). This Court has stated while incarceration for civil contempt
is permitted, the violator must be afforded the opportunity to purge the
contempt. See Wetzel v. Suchanek, 541 A.2d 761, 764 (Pa. Super. 1988)
(holding the trial court committed reversible error when it sentenced the
appellant to jail for civil contempt and ordered a purge condition that the
appellant could not complete before the end of the imposed prison sentence).
In proceedings for civil contempt, the burden of proof rests with the
complaining party to demonstrate that the defendant is in noncompliance
with a court order. See Thomas v. Thomas, 194 A.3d 220, 226 (Pa. Super.
2018). “To sustain a finding of civil contempt, the complainant must prove,
by a preponderance of the evidence, that: (1) the contemnor had notice of
the specific order or decree which he is alleged to have disobeyed; (2) the act
constituting the contemnor’s violation was volitional; and (3) the contemnor
acted with wrongful intent.” Id. Nevertheless, “a mere showing of
noncompliance with a court order, or even misconduct, is never sufficient
alone to prove civil contempt.” Id.
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Aunt contends9 the trial court erred in finding her in civil contempt
because there was no evidence she violated the permanency review order.
See Aunt’s Brief at 10-11. With respect to the December 7, 2022, incident,
Aunt argues the action did not happen in the presence of the trial court and
there was no evidence Aunt assisted Child in his escape from the courthouse
that day. See id.
Contrary to its bench ruling, in its Rule 1925(a) opinion, the trial court
maintains it found Aunt in civil contempt because of her violation of court
orders. It explained:
[t]he first issue is whether the court order which [Aunt] purportedly violated was definite, clear, and specific and whether [Aunt] had notice of the order. . . . [Aunt] was present at the permanency review hearing on December 7, 2022, and after the hearing she was informed of the court’s order that [Child] had to return to placement that day with Ms. Triplett.
The next issue is whether [Aunt’s] attempt to physically assault the CUA worker in the courthouse after the permanency review hearing[] and leaving with the minor child in violation of the December 7, 2022 permanency review order was willful and with wrongful intent. The permanency review order states: “IT IS HEREBY ORDERED THAT: Legal Custody of the Child shall remain with the Philadelphia Department of Human Services. Placement of the Child shall remain in Foster Care.”
9 Aunt addresses her four issues under two headings in her brief, contrary to
our rules of appellate procedure. See Aunt’s Brief, at 9-13; see also Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there are questions to be argued[.]”). Nonetheless, we will address her issues because this discrepancy does not hamper our review. See Donahue v. Fed. Exp. Corp., 753 A.2d 238, 241 n.3 (Pa. Super. 2000).
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Based on the preponderance of the evidence, [the trial c]ourt found that [Aunt] acted with wrongful intent. . . . After learning that [Child] was ordered to return to placement, [Aunt] verbally threatened the CUA worker while outside of the courtroom in the waiting area. The CUA worker did not confront [Aunt], but rather, immediately moved to the other side of the waiting area. When Ms. Triplett attempted to request a sheriff, [Aunt] charged at her[,] swinging, trying to physically assault Ms. Triplett. [Aunt’s] attempt at physically harming Ms. Triplett did not stop there. A lot of people in the waiting room, including Mother, tried to hold [Aunt] while an ACS swiftly ushered Ms. Triplett inside a courtroom where the ACS held the door shut with his body weight to keep [Aunt] out while they waited for sheriffs to assist. When the sheriffs finally arrived, [Aunt], [Child], and Mother were no longer there. [Aunt] acted willfully and with wrongful intent, and her actions violated the court’s permanency review order.
Trial Court Opinion, 11/17/23, at 7-8 (unnumbered) (citations, record
citations, and quotation marks omitted, capitalization regularized).
Initially, this Court wishes to make it abundantly clear Aunt’s behavior
on December 7, 2023, was deplorable. Her conduct of both verbally
threatening, and attempting to physically assault, a CUA worker was
inexcusable. Had either DHS or the trial court referred this matter to the
District Attorney for criminal prosecution, this would be a different matter.
However, the trial court, sua sponte, and without the support of DHS, elected
to proceed with contempt proceedings and in so doing plainly abused its
discretion. As noted above, 42 Pa.C.S.A. § 4132 limits a trial court’s power
to attach an individual and issue a summary punishment for contempt. See
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42 Pa.C.S.A. § 4132.10 As discussed in greater detail below, Section 3 requires
the “misbehavior” both to take place “in the presence of the court” and to
obstruct “the administration of justice[,]” neither of which occurred in the
instant matter. Id. Thus, Section 2, which concerns disobedience or neglect
by “officers, parties, jurors or witnesses of or to the lawful process of the
court[,]” is the only possible basis for finding Aunt in contempt under Section
4132. Id.
Aunt is not an officer or juror, nor a party to the dependency
proceedings. Aunt’s sole official involvement in the case began in July 2022,
when Child, with the permission of CUA, resided with her, and ended in
October 2022, when CUA removed Child from her home. Further, contrary to
the trial court’s finding, the record does not demonstrate Aunt was present in
the courtroom for the actual hearing on December 7, 2022. See
Recommendation – Permanency Review, 12/7/22, at 1 (listing those people
in attendance and appearing at the hearing). 11 The trial court never
enunciated any basis for finding Aunt in contempt under Section 4132.
10 Sections 1 and 1.1 of the statute are inapplicable here because there was
no alleged official misconduct or willful failure by officers. See id.
11 Aunt testified she was present in the courthouse because CUA told her “to
be there to speak to a judge.” N.T., 5/5/23, at 9. This testimony was not confirmed by Ms. Triplett, and Aunt never testified at the hearing. See id. at 5-8.
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Additionally, to find an individual in civil contempt, the court must
accord the individual her due process rights of notice and an opportunity to
be heard. See Harcar v. Harcar, 982 A.2d 1230, 1235 (Pa. Super. 2009).
We have defined adequate notice as requiring “that the contemnor had notice
of the specific order or decree which [s]he is alleged to have disobeyed[.]”
Stahl v. Redcay, 897 A.2d 478, 489 (Pa. Super. 2006).
Here, the rule to show cause failed to accord Aunt due process. It
vaguely stated Aunt had not cooperated with DHS. But Ms. Triplett is not an
employee of DHS, and no DHS employee testified at the contempt proceedings
or stated Aunt failed to cooperate with them. The allegation in the rule to
show cause was insufficient as a matter of law to give Aunt notice of the order
she allegedly violated. See Stahl, 897 A.2d at 489.
Moreover, the record of the hearings delineated above and the trial
court’s ruling from the bench, make clear that the basis for the contempt
proceeding was not Aunt’s alleged failure to cooperate with DHS, but the
December 7, 2023, incident. While the trial court in its 1925(a) opinion
belatedly suggests Aunt violated what it calls the December 7, 2023
“permanency review order,” it fails to point to, and we have been unable to
locate, any place in the record where the trial court placed Aunt on notice that
she violated that order. Accordingly, we conclude the trial court violated
Aunt’s due process rights by failing to provide proper notice of the order or
decree she allegedly violated. See Stahl, 897 A.2d at 489.
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In any event, we have thoroughly reviewed the trial court’s explanation
of its contempt finding and are unable to discern how Aunt’s actions violated
the “December 7, 2022, permanency review order.” First, there was no
December 7, 2022, permanency review order. Following the hearing, the
hearing officer issued a recommendation. See Recommendation –
Permanency Review, 12/7/22, at 1.12 Second, as noted above, Aunt is not a
party to this action, the recommendation does not mention her, there is no
indication she ever received a copy of it, and the trial court does not point to
any law supporting the position that it has the statutory authority to bind a
non-party.
Third, it is unclear how Aunt’s attempted assault and threats to Ms.
Triplett, however reprehensible, violated the provision of the order giving legal
custody of Child to DHS. To the extent the trial court is attempting to suggest
that the attempted assault was a ruse to allow Child to escape, see Trial Court
Opinion, 11/17/23, at 7 (unnumbered), nothing in the record supports that
belated hypothesis. Ms. Triplett did not testify Aunt was involved in Child’s
escape and did not testify at the hearing that Aunt had knowledge of the
12 The recommendation did not become an order until it was adopted by the
trial court on March 2, 2023, almost three months after the December 7, 2022, incident. See id. at 2.
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Child’s location when he was missing.13 See N.T., 5/5/23, at 5-8.
Accordingly, we conclude the trial court plainly abused its discretion in holding
Aunt in contempt.
Given the above facts and the trial court’s emphasis at the contempt
hearing that Aunt’s contempt involved the attempted assault of Ms. Triplett,
we question the court’s treatment of this matter as civil contempt. As we
discussed above, contempt of court may be classified as civil or criminal in
nature. The distinction between the two categories of contempt rests in the
lower court’s purpose for its finding. As this Court has written:
[i]f the dominant purpose of the court is to prospectively coerce the contemnor into compliance with the court’s directive, the adjudication is one of civil contempt. However, if the court’s dominant purpose is to punish the contemnor for disobedience of the court’s order, the adjudication is one of criminal contempt.
In re C.W., 960 A.2d 458, 466 (Pa. Super. 2008) (citation omitted). Here,
the trial court issued the rule to show cause because Aunt threatened and
attempted to assault Ms. Triplett. The court never imposed a purge condition
and sentenced Aunt to a definite term of incarceration, a sanction that is not
permissible in civil contempt proceedings absent a purge condition. See
Wetzel, 541 A.2d at 763-64. Thus, there are two things that are clear from
13 While Ms. Triplett did testify at the December 16, 2022, hearing that an unnamed P.I. told her that Aunt knew the child’s whereabouts, see N.T., 12/16/22, at 8, that statement was inadmissible hearsay and made at a hearing where Aunt was neither present nor represented by counsel. Thus, the trial court should not have considered it in making its contempt ruling.
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the record: (1) the dominant purpose of the contempt order was to punish
Aunt for her misbehavior on December 7, 2022, and (2) Aunt was not in
violation of any court order. Those are the hallmarks of direct criminal
contempt, not of civil contempt. See In re C.W., 960 A.2d at 466.
Pennsylvania law provides rules and sanctions for both direct criminal
contempt and indirect criminal contempt.
A conviction for direct criminal contempt under Section 4132(3) requires proof beyond reasonable doubt (1) of misconduct, (2) in the presence of the court, (3) committed with the intent to obstruct the proceedings, (4) that obstructs the administration of justice.
Commonwealth v. Outlaw, 306 A.3d 406, 409 (Pa. Super. 2023) (internal
quotation marks and citations omitted), appeal granted, 2024 WL 3283727
(Pa. July 3, 2024). Here, we note none of the procedural safeguards attendant
to criminal contempt proceedings occurred and the trial court applied the
preponderance of the evidence standard, not the beyond a reasonable doubt
standard. See Trial Court Opinion, 11/17/23, at 6. Moreover, as noted above,
this case does not fall within the parameters of 42 Pa.C.S.A. § 4132(3).
Assuming, arguendo, Aunt’s conduct constituted misbehavior and the
intention to obstruct the dependency proceedings, the misconduct
nevertheless did not take place “in the presence of the court.” Our Supreme
Court has stated misconduct occurs “in the presence of the court” if the court
itself witnesses the conduct or if the conduct occurs outside the courtroom but
so near thereto that it obstructs the administration of justice. See
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Commonwealth v. Moody, 125 A.3d 1, 12 (Pa. 2015). Accordingly, Aunt
could not properly have been convicted of direct criminal contempt.
In contrast to direct criminal contempt, indirect criminal contempt is
committed
by obstructive conduct that occurs outside of the court’s presence. A conviction for indirect criminal contempt requires, inter alia, proof that the alleged contemnor’s conduct violated a definite, clear, and specific order or decree.
Commonwealth v. Perkins, 292 A.3d 1144, 1147 (Pa. Super. 2023)
(internal citations and quotation marks removed, emphasis added). In
Perkins, this Court reversed a finding of direct criminal contempt where the
defendant threatened a witness by the courthouse elevators, outside the
presence of the court, and the trial court only heard about when the witness
reported the threat. See id. at 1148. We see little difference between the
instant matter and the events in Perkins. Thus, even if the trial court had
treated the matter as criminal contempt, the verdict could not stand. See
Perkins, 292 A.3d at 1148. Moreover, as discussed above, Aunt’s conduct
did not violate “a definite, clear, and specific order or decree[,]” thus she did
not commit indirect criminal contempt. See id. at 1147.
While we do not condone Aunt’s actions, we are disturbed by the record
in this matter. DHS sought neither contempt proceedings nor criminal
prosecution. The trial court elected, of its own accord, sua sponte, to hail
Aunt back into court to institute contempt proceedings. Our review of the
transcripts shows the trial court did so with the expressed intent of punishing
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Aunt. When Counsel pointed out the same legal difficulties highlighted in this
memorandum, the trial court threatened Counsel with criminal contempt.
The trial court’s actions in this matter disregarded Aunt’s due process rights
and were at odds with well-settled law on contempt. Accordingly, for the
reasons discussed above, we vacate the finding of contempt.
Order vacated.
Date: 9/24/2024
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