J-A20023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN A. PEZZUTI IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LINDA S. PEZZUTI
Appellant No. 2772 EDA 2013
Appeal from the Order Entered August 27, 2013
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 399-2003 Civil
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 22, 2014
Appellant, Linda S. Pezzuti, appeals from the August 27, 2013 order
finding her in direct criminal contempt and sentencing her to pay a fine of
$500.00. After careful review, we reverse the August 27, 2013 contempt
order and discharge Appellant.
The factual and procedural history of this case can be summarized as
follows. Appellant and Appellee, John A. Pezzuti (Father), have been
involved in contentious custody litigation concerning their daughter, A.P.,
now age 15, since their first separation in October, 2000. The original
custody action was filed in Monroe County. Appellant moved to Wayne
County shortly after the commencement of the custody action. At times,
Appellant has unsuccessfully sought to have venue of the custody case
established in Wayne County.
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Relative to matters proceeding in Wayne County, the certified record
reveals Appellant, on September 8, 2003, initially filed a pro se Preacipe for
writ of summons, including a request for admissions and a motion for
transfer of venue of the Monroe County custody action.1 On October 10,
2003, Appellant filed a counseled petition for modification of the Monroe
County custody order of July 17, 2003 as amended by order dated August
12, 2003. By this time, Father resided in Pike County, but asserted his
intention of moving back to Monroe County. On October 14, 2003, the trial
court entered an order, sua sponte, transferring the matter to Monroe
County. On October 31, 2003, Appellant filed a motion to reconsider. After
motion for reconsideration. In its accompanying opinion the trial court noted
Mother had already unsuccessfully litigated
in Monroe County requests for change of venue to Wayne County including
appeals to this Court.
On February 27, 2004, Appellant filed another motion in Wayne
County to modify the August 12, 2011 Monroe County custody order. The
trial court, apparently treating the motion as a petition for reconsideration,
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1
These were filed under the instant civil docket number notwithstanding
they sought to raise a custody matter. As a writ of summons is ineffective
to commence a custody complaint or petition for modification, this filing
triggered no trial court action.
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ordered the case transferred to Monroe County on March 3, 2004. On March
11, 2004, Appellant filed a notice of appeal from the March 3, 2004 order.
This Court affirmed the trial court in a memorandum opinion filed on
December 14, 2004. Pezzuti v. Pezzuti, 869 A.2d 23 (Pa. Super. 2004)
(unpublished memorandum).
On February 17, 2012, Appellant filed a copy of a custody order from
Monroe County dated December of 2011. On August 16, 2013, Appellant
filed a pro se
pro se
equested the
same relief, to wit that the current custody order be amended to allow A.P.
to attend a new high school with revised custody and partial custody
schedules. In both petitions, Appellant referred to the order to be amended
bout December 13, 2011, the current court [sic] was
entered with both parents sharing both physical and legal custody. Entered
Petition, 8/16/13, at 2, ¶ 6; Emergency Motion, 8/16/13, at 1, ¶ 6.2
Although there is no entry in the trial court docket indicating the
scheduling of a hearing on these motions, the trial court entered an order on
____________________________________________
2
As noted the actual date of the filing of the foreign order from Monroe
County was February 17, 2012. A copy of the Monroe County order was
attached to the Emergency Petition.
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representations of [Appellant] that there was an existing Wayne County
having realized subsequent to the hearing that the active custody case and
mergency
petition and directed that all future pleadings related to custody of A.P. be
filed in Monroe County unless leave to file elsewhere is first granted by
Monroe County. Id., ¶¶ 1, 2. The trial court also directed Appellant to
why [Appellant] should not be held in Criminal
Id. at 2, ¶ 3.
On August 27, 2013, following a brief hearing, the trial court entered
an order finding Appellant in direct criminal contempt of court, and imposing
a fine of $500.00. Trial Court Order, 8/27/13, at 1. On September 26,
2013, Appellant filed a timely pro se notice of appeal.3
On appeal, Appellant raises the following issue for our consideration.
conviction of direct criminal contempt when no
evidence was presented to indicate that [Appellant]
is a member of court personnel or that the trial court
had previously entered an order or decree that
was appropriate under the particular circumstances?
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3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Father, nominally an appellee, has not
participated in this appeal.
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It is axiomatic that
Williams v.
Williams, 681 A.2d 181, 182 (Pa. Super. 1996), affirmed, 721 A.2d 1072
(Pa. 1998). That power, however, is circumscribed by statute, providing in
relevant part as follows.
§ 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:
(3) The misbehavior of any person in the presence of
the court, thereby obstructing the administration of
justice.
42 Pa.C.S.A. § 4132.4
contempt under this provision there must be proof beyond a reasonable
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4
Appellant devotes a portion of her argument demonstrating the
inapplicability of Subsections (1) and (2) of Section 4132, which permit an
adjudication for contempt in the following circumstances.
(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.
42 Pa.C.S.A. 4132 (1), (2). See -21. Although the
trial court does not reference Section 4132 in its order or Rule 1925 opinion,
(Footnote Continued Next Page)
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doubt: (1) of misconduct, (2) in the presence of the court, (3) committed
with the intent to obstruct the proceedings, (4) that obstructs the
Commonwealth v. Williams, 753 A.2d 856,
861 (Pa. Super. 2000), appeal denied, 75 A.2d 89 (Pa. 2000).
reviewed under an abuse of discretion standard.
Commonwealth v. Stevenson, 482 Pa. 76, 393
A.2d 386, 393 (1978) (plurality opinion).
We have held that in considering an
appeal from a contempt order, we place great
reliance on the discretion of the trial judge.
Each court is the exclusive judge of contempts
against its process, and on appeal its actions
will be reversed only when a plain abuse of
discretion occurs. In cases of direct criminal
contempt, that is, where the contumacious act
is committed in the presence of the court and
disrupts the administration of justice, an
appellate court is confined to an examination
of the record to determine if the facts support
the trial co
Commonwealth v. Jackson, 367 Pa.Super. 6, 532
A.2d 28, 31 32 (1987) (quotations and citations
omitted).
Commonwealth v. Moody, 46 A.3d 765, 771 (Pa. Super. 2012), appeal
granted in part, 79 A.3d 1093 (Pa. 2013).5
_______________________
(Footnote Continued)
Subsection (3). Trial Court Opinion, 11/22/13, at 4; see also N.T.,
8/27/13, at 10-11. We agree that subsections (1) and (2) do not apply to
the circumstances of this case, which do not implicate official misconduct or
lawful process.
5
allowance of appeal in Moody on the following questions.
(Footnote Continued Next Page)
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Behr v. Behr, 695 A.2d 776, 779 (Pa. 1997).
When acting to uphold its authority, [] a court must
use the least possible power and should first consider
less severe remedies such as civil contempt before
imposing summary criminal contempt. The judge
should resort to criminal sanctions only after he
determines, for good reason, that the civil remedy
Moody, supra at 773, n.7, quoting Commonwealth v. Garrison, 386 A.2d
971, 976 (Pa. 1978).
judgment and, on appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-
Commonwealth v. Walsh, 36 A.3d 613, 620 (Pa. Super. 2012)
(citation omitted).
the suffi
_______________________
(Footnote Continued)
(1) Did the Superior Court err in ruling that
-court conduct was not
summary direct criminal contempt because the trial
court supposedly did not observe the conduct?
(2) In cases of summary direct criminal contempt, is
a defendant entitled to counsel and to call witnesses?
Commonwealth v. Moody, 79 A.3d 1093, 1093-1094 (Pa. 2013) (per
curiam order)
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criminal contempt.6 First, we note that the basis for the trial court finding
Appellant in direct criminal contempt in this case was its determination that,
at the August 20, 2013 hearing, Appellant made misrepresentations and
omissions, leading the trial court to believe Wayne County was the proper
11/22/13, at 3. The trial court concluded that Appellant thereby attempted
Id. at 4.
tive to her alleged
required
Id. at 22. Upon a
____________________________________________
6
The trial court clearly distinguished its determination from a proceeding for
f the contempt. Grubb v. Grubb, 473 A.2d
1060, 1062 (Pa. Super. 1984); see N.T., 8/27/13, at 10-11. Criminal
Contempt involves the imposition of a fixed fine or term of incarceration
intended to punish. Id. Such is the instant case. There is a further
distinction between direct and indirect criminal contempt. Moody, supra at
claim that a violation of an Order or Decree of court occurred outside the
Id., quoting Commonwealth v. Brumbaugh, 932
A.2d 108, 109 (Pa. Super. 2007). Again, such is not the instant case.
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The trial court references the fol
misrepresentations and omissions.
While presenting the Petition for Modification on
August 20, 2013, [Appellant] was questioned about
the current custody order under which the parties
were operating, [Appellant] failed to inform the
Court that the custody Order was issued in Monroe
County. [Appellant] was questioned regarding
whether the docket number was a civil or domestic
relations docket. The Court asked [Appellant] if the
case was a divorce and custody action. Plaintiff
Mother replied that the case was in fact a divorce
and custody matter.
Trial Court Opinion, 11/22/13, at 3. The trial court continued that it only
misrepresentations by omissi Id.
However, a review of the transcript from the August 27, 2013 hearing
reveals that the trial court did not consult the record to confirm or discount
rder to
her emergency motions, which she contends belies any claim of
misrepresentation.
[Appellant:] In my petition, if you look at
it, I attached the court order and I used Exhibit A, B
and C and it all referred to the court order of Monroe
County.
[The Trial Court:]Not in the copy I have. I
N.T., 11/27/13, at 10. The record, however, reflects Appellant did attach
the Monroe County order she sought to have modified as an exhibit to her
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petition for emergency modification, albeit not her contemporaneous
emergency motion for modification, which contained additional exhibits.
Appellant intentionally misled the trial court about the county of origin of the
order sought to be modified.
Even assuming the trial court remained unaware of the procedural
hearing on her emergency petition/motion for modification, our review of the
circumstances of this case, in light of the required proofs cited above, leads
us to conclude that a charge of direct criminal contempt cannot be
sustained. With respect to the first element, our Supreme Court has defined
misconduct as behavior tha
Commonwealth v. Garrison, 386 A.2d 971, 979 (Pa. 1978). We find no
case where an erroneous attempt to invoke the jurisdiction or venue of a
particular court has been considered misbehavior amounting to direct
criminal contempt.
We also conclude the second element of proof necessary for direct
criminal contempt, i.e., that the misbehavior be in the presence of the court,
is problematic in this case.
parties have exited the courtroom without causing any disturbance, and the
record reflects no behavior that actually and significantly disrupted the
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behavior that it only learns about subsequent Behr, supra at 779-780.
Instantly, as the trial court noted, it only became aware of the Monroe
County connection with the case from the court administrator after the
August 20, 2013 proceeding, but before it entered its intended order of
modification. N.T., 8/27/13, at 3. It is also clear that the trial court relied
on non-
August 27, 2013 rule-to-show-cause hearing, related her communications
with her attorney, William Watkins, Esquire, relative to her pro se filings. Id
at 4-
Watkins] told our Court Administrator that he talked to you and he said you
wanted a Petition for Emergency Relief because of school matters and he
told you that school matters are not a matter for emergency relief in Monroe
Id. at 5. Thus, contrary to the standard articulated in Behr, the
trial court here did not conclude that Appellant was in contempt based on
misbehavior it observed in its presence, but relied on information provided
by others after the subject proceeding.
and disingenuous with respect to the issue of venue, did not obstruct the
element of direct criminal contempt.
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To obstruct justice, conduct must significantly
disrupt proceedings. [C]ontempt requires actual,
imminent prejudice to a fair proceeding or prejudice
and authority.
Williams v. Williams, 721 A.2d 1072, 1074 (Pa. 1998) (citations omitted).
Instantly, the t
not unsympathetic, is not concerned with the orderly procedure or authority
of the court. The August 20, 2013 hearing proceeded in good order.
Rather, the problem is with the fundamental jurisdictional and procedural
issues in the case for which the trial court and Father had recourse to civil
sanctions or other types of relief for any vexatious conduct by Appellant.
These, however are outside the purview of direct criminal contempt.
trial court should not use the drastic sanction of finding a person in criminal
In. Re C.W., 960 A.2d 458,
466 (Pa. Super. 2008).
For all the foregoing reasons, we conclude the trial court abused its
discretion in finding Appellant in direct criminal contempt and imposing a
order and Appellant is hereby discharged.
Order reversed. Appellant discharged. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
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