Orfield v. Weindel

52 A.3d 275, 2012 Pa. Super. 135, 2012 Pa. Super. LEXIS 1062
CourtSuperior Court of Pennsylvania
DecidedJune 29, 2012
StatusPublished
Cited by60 cases

This text of 52 A.3d 275 (Orfield v. Weindel) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Orfield v. Weindel, 52 A.3d 275, 2012 Pa. Super. 135, 2012 Pa. Super. LEXIS 1062 (Pa. Ct. App. 2012).

Opinions

OPINION BY

STEVENS, P.J.:

This is an appeal from the order entered by the Court of Common Pleas of Berks County finding Appellant Charles E. Weindel, II, in civil contempt for failing to appear at a contempt hearing and failing to pay child support. The trial court imposed six months incarceration with a purge amount of $4,244.00. Appellant claims the trial court erred in setting this purge amount without considering his ability to pay.

On September 9, 2011, the lower court held a Support Enforcement Hearing where the Domestic Relations Office (DRO) established that Appellant owed $4,244.00 in arrears. At that time, the trial court noted there was no active charging order, but Appellant was required to pay $300.00 each month to pay off the arrears. However, Appellant had not made a payment since April 1, 2009, when he paid $10.75. In addition, Appellant had failed to appear at an earlier contempt hearing scheduled for February 22, 2011.

At the September 9, 2011 hearing, both parties agreed that Appellant had received wages under the table for his work as an automobile mechanic and an ice cream truck driver, but no evidence was presented on the amount of money Appellant actually made. Appellant indicated he could pay $1,000.00 borrowed from family members towards his arrears. The trial court rejected this offer, stating it was “[t]oo little, too late.” N.T., 9/9/11, at 7. The trial court found Appellant to be in contempt and imposed six months incarceration “based on Appellant’s dismal payment history despite having some form of employment during the two year period in which he made no payments.” Trial Court Opinion, 1/31/12, at 2. Further, the trial court set the purge amount at $4,244.00, the full amount of arrears due.1

[277]*277On September 19, 2011, Appellant filed a Motion for Reconsideration claiming the trial court failed to consider his ability to pay this purge amount. As the trial court did not act on the motion, Appellant filed a timely appeal on October 7, 2011. Despite the pending appeal, the trial court held a hearing on October 31, 2011, granted Appellant’s motion, and lowered the purge amount to $1,000.00 in an order entered on November 2, 2011. In his appellate brief, Appellant argues that the trial court erred in failing to consider his ability to pay this decreased purge amount.

Before we reach the merits of this appeal, it is necessary to determine whether the trial court had jurisdiction to grant Appellant’s motion for reconsideration. As a general rule, Pennsylvania Rule of Appellate Procedure 1701 provides that a trial court loses jurisdiction over a proceeding once a notice of appeal is filed. Pa.R.A.P. 1701(a). However, Rule 1701(b)(8) provides an exception when a party files a timely motion for reconsideration “within the time provided or prescribed by law.” Pa.R.A.P. 1701(b)(3)(i). We note that this exception requires the trial court to enter an order expressly granting reconsideration within the 30-day appeal period. Pa.R.A.P. 1701(b)(3)(ii). The timely grant of a motion for reconsideration within these parameters renders the appeal inoperative and allows the trial court to proceed to the merits of the motion. Pa.R.A.P. 1701(b)(3). The time period for appeal begins to run anew upon the entry of the decision on reconsideration. Pa.R.A.P. 1701(b)(3).

In this case, the trial court entered its order finding Appellant in contempt on September 12, 2011. Appellant filed a timely motion for reconsideration on September 19, 2011. As the motion for reconsideration did not toll the appeal period which required Appellant to appeal by October 12, 2011,2 Appellant filed a notice of appeal on October 7, 2011. As the trial court failed to act on the motion before the end of the 30-day appeal period, it had no jurisdiction to reduce Appellant’s purge amount in an order entered on November 2, 2011. Because the trial court’s decision granting Appellant’s motion for reconsideration was a legal nullity, we vacate the November 2, 2011 order and proceed to determine whether the trial court failed to consider Appellant’s ability to pay the original purge amount imposed in the September 9, 2011 order.

As a preliminary matter, we must address whether this issue is moot as Appellant was released from prison after he served the entire six month term of incarceration. Our courts cannot “decide moot or abstract questions, nor can we enter a judgment or decree to which effect cannot be given.” Sayler v. Skutches, 40 A.3d 135, 143 (Pa.Super.2012) (citation omitted).

As a general rule, an actual case or controversy must exist at all stages of the judicial process, or a case will be [278]*278dismissed 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. This 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.

Warmkessel v. Heffner, 17 A.3d 408, 412-13 (Pa.Super.2011) (quoting In re D.A., 801 A.2d 614, 616 (Pa.Super.2002) (en banc) (internal citations and quotation marks omitted)).

Although Appellant was released from prison after serving the entire term imposed, he has not paid off his arrears and is still subject to the trial court’s order to pay monthly payments of $300.00. His noncompliance with this order would again subject him to civil contempt proceedings. See Barrett v. Barrett, 470 Pa. 253, 259, 368 A.2d 616, 619 (1977) (finding Barrett’s appeal of his contempt conviction was not moot even though his terms of imprisonment expired because he remained subject to the order to pay support and satisfy his arrearages, and a failure to comply would subject him to contempt proceedings again); Warmkessel, 17 A.3d at 413 (providing that Warmkessel’s challenge to the sanctions imposed for civil contempt was not moot as he was subject to a continuing support order and might once again face civil contempt proceedings). As a result, we find Appellant’s issue meets the mootness exception and proceed to review the merits of his claim.

In reviewing the challenge of a trial court’s finding of civil contempt, this Court set forth the applicable law in Hyle v. Hyle, 868 A.2d 601 (Pa.Super.2005):

Our scope of review when considering an appeal from an order holding a party in contempt of court is narrow: We will reverse only upon a showing of an abuse of discretion. See Diamond v. Diamond, 792 A.2d 597, 600 (Pa.Super.2002).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Penn Sycamore Apartments v. Brooks, S.
2025 Pa. Super. 217 (Superior Court of Pennsylvania, 2025)
Com. v. Dolph, R.
Superior Court of Pennsylvania, 2025
Keating, J. v. Hammond, M.
Superior Court of Pennsylvania, 2025
Com. v. Archer, C.
Superior Court of Pennsylvania, 2025
Batterman, C. v. Santo, S.
Superior Court of Pennsylvania, 2025
Eakin, E. v. Gentile, J.
Superior Court of Pennsylvania, 2024
D. Wheeler, Sr. v. DOC
Commonwealth Court of Pennsylvania, 2024
W. Dicks v. DOC
Commonwealth Court of Pennsylvania, 2024
Charlton, H. v. Johnson, F.
Superior Court of Pennsylvania, 2024
9795 Perry Highway v. Bernard, W.
Superior Court of Pennsylvania, 2024
Calpine Corp. v. PA DEP & PA EQB
Commonwealth Court of Pennsylvania, 2023
Kovalchuk, V. v. Kovalchuk, Y.
Superior Court of Pennsylvania, 2023
In Re: Dille Family Trust, Appeal of: Williams, L.
Superior Court of Pennsylvania, 2023
Com. v. Muhammad, Z.
Superior Court of Pennsylvania, 2023
Redd, A. v. Spaulding, M.
Superior Court of Pennsylvania, 2022
Schoch, R. v. Perez, L.
Superior Court of Pennsylvania, 2022
R.E. Johnson v. T. Ferguson
Commonwealth Court of Pennsylvania, 2022
Rigante, C. & Roth, A. v. Rockford Homes, LLC
Superior Court of Pennsylvania, 2022

Cite This Page — Counsel Stack

Bluebook (online)
52 A.3d 275, 2012 Pa. Super. 135, 2012 Pa. Super. LEXIS 1062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orfield-v-weindel-pasuperct-2012.