Orfield v. Weindel

CONCURRING OPINION BY

STRASSBURGER, J.

I join President Judge Stevens’ well-reasoned opinion. Because this Court is remanding the case, I write separately to point out a discrepancy in the trial court order from which the appeal was taken that the trial court may want to consider.

That order reads as follows:

And now, September 9, 2011, after the hearing, the Court finds the Defendant has willfully failed to comply with the Court Order when he was capable of complying, and therefore finds the defendant in willful civil contempt of Court.
The specific acts or failure to act on the part of Defendant which constitutes the contempt: Failure to make regular payments on the support order and/or arrears. Failure to report changes in address and/or employment. Failure to appear for a Contempt Conference on 2/22/11.
As a result thereof, it is Ordered that Defendant be: Committed to the Berks County Jail System for 6 months, beginning 9/9/11.
Defendant may PURGE the contempt by: a) A Cash Lump sum payment on the case in the amount of $4244.00. c) Payment through work release earnings on the case in the amount of $2000.00.
BY THE COURT:
/s/ James M. Bucci

Trial Court Order, 9/9/2011 (emphasis added).

Although the trial court characterizes this order as being civil contempt, the failure to appear before the trial court for a conference is criminal contempt. The statutes governing contempt provide as follows:

§ 4344. Contempt for failure of obli-gor to appear
A person who willfully fails or refuses to appear in response to a duly served order or other process under this chapter may, as prescribed by general rule, be adjudged in contempt. Contempt shall be punishable by any one or more of the following:
(1) Imprisonment for a period not to
exceed six months.
(2) A fine not to exceed $500.
(3) Probation for a period not to exceed six months.

23 Pa.C.S. § 4344.

§ 4345. Contempt for noncompliance with support order
(a) General rule. — A person who willfully fails to comply with any order un*281der this chapter, except an order subject to section 4344 (relating to contempt for failure of obligor to appear), may, as prescribed by general rule, be adjudged in contempt. Contempt shall be punishable by any one or more of the following:
(1) Imprisonment for a period not to exceed six months.
(2) A fine not to exceed $1,000.
(3) Probation for a period not to exceed one year.
(b) Condition for release. — An order committing a defendant to jail under this section shall specify the condition the fulfillment of which will result in the release of the obligor.

23 Pa.C.S. § 4345.

The above-cited statutes are substantially the same; but, the statute governing the non-compliance with a support order includes a purge condition, or a way for the contemnor to rid himself of the contempt. That additional language is the hallmark of civil contempt.

Civil contempt has as its dominant purpose to enforce compliance with an order of court for the benefit of the party in whose favor the order runs, while criminal contempt has as its dominant purpose, the vindication of the dignity and authority of the court and the protection of the interest of the general public. This distinction between civil and criminal contempt is important because the type of contempt being punished will determine the manner in which the contempt is to be adjudicated as well as the punishment which may be imposed. It must be noted that the characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of civil contempt by complying with the court’s directive.

Wetzel v. Suchanek, 373 Pa.Super. 458, 541 A.2d 761, 763 (1988) (internal citations omitted; emphasis added).