Glynn v. Glynn

ORIE MELVIN, J.,

Dissenting:

¶ 1 I disagree with the majority that the Order of civil contempt is a final appeal-able order. Because I find the Order is interlocutory, I respectfully dissent.

¶ 2 An appeal will lie only from a final Order unless otherwise permitted by statute. Robec, Inc. v. Poul, 452 Pa.Super. 264, 681 A.2d 809 (1996); 42 Pa.C.S.A. § 742. It is well settled that unless sane-*251tions or imprisonment are imposed, an Order declaring a party to be in contempt is held to be interlocutory and not appeal-able. Mrozek v. James, 2001 PA Super 199, 780 A.2d 670; Sargent v. Sargent, 733 A.2d 640, 641 (Pa.Super.1999); Gaster v. Gaster, 703 A.2d 513 (Pa.Super.1997); McManus v. Chubb Group of Insurance Companies, 342 Pa.Super. 405, 493 A.2d 84 (1985); Rulli v. Dunn, 337 Pa.Super. 613, 487 A.2d 430 (1985). Moreover, a threat to impose sanctions in the future is neither final nor appealable. Genovese v. Genovese, 379 Pa.Super. 623, 550 A.2d 1021, 1022 (1988).

¶ 3 In determining the finality of a civil contempt order, I believe emphasis should be placed on whether the trial court has enforced the sanction. In the absence of enforcement, I believe this Court is without jurisdiction to engage in appellate review. See Hester v. Bagnato, 292 Pa.Super. 322, 437 A.2d 66 (1981) (quashing civil contempt order as interlocutory in absence of imposition of sanctions).

¶ 4 Contrary to the majority, I find Sargent persuasive and factually analogous to the instant case. In Sargent, the trial court entered an Order finding Father in contempt for non-payment of child support. The Order also imposed a sentence of incarceration of six months unless Father met the purge condition of paying Mother $5,538.00 plus fees within thirty-days. However, prior to the expiration of that thirty-day period, Father filed an appeal. Subsequently, a panel of this Court quashed the appeal finding the order appealed from was interlocutory and unap-pealable as the threatened sanction had not yet been imposed.

¶ 5 Similarly, in the present case, the trial court entered an Order on May 30, 2000, finding Husband in contempt. The trial court further imposed consecutive sentences of two six-month probation terms and two six-month prison terms unless Husband met purge conditions which included paying Wife $5,000 plus attorney’s fees before June 29, 2000, or working in the Outmate Program for a period of 90 days. On June 29, 2000, prior to the imposition of any sanction, Husband filed the instant appeal. Accordingly, based upon our holding in Sargent, I believe this appeal should be quashed as interlocutory. Cf. Lachat v. Hinchliffe, 769 A.2d 481 (Pa.Super.2001) (holding a trial court’s order which explicitly imposed sanctions on a finding of contempt final and appealable). Cf. Griffin v. Griffin, 384 Pa.Super. 210, 558 A.2d 86 (1989), appeal denied, 524 Pa. 621, 571 A.2d 383 (1989) (holding order of contempt final and appealable because appellant did not timely meet purge condition and sanction of imprisonment was imposed prior to fifing of appeal).

¶ 6 Finally, I recognize the decision reached by the majority is also contrary to the holdings in several other jurisdictions. See Whitworth v. Jones, 41 S.W.3d 625 (Mo.Ct.App.2001) (holding civil contempt order interlocutory and unappealable when record revealed appellant had not complied with court’s order or that enforcement of the order had been sought); Clark v. Myers, 945 S.W.2d 702 (Mo.Ct.App.1997) (holding civil contempt order is not final until judgment enforced); Vowell v. Pedersen, 315 Ill.App.3d 665, 248 Ill.Dec. 461, 734 N.E.2d 169 (2000) (holding that in order for an appellate court to assume jurisdiction, the contempt order must impose sanctions of some kind upon the con-temnor); see also Jessen v. Jessen, 5 Neb. App. 914, 567 N.W.2d 612 (1997); Bayless v. Bayless, 580 N.E.2d 962 (Ind.Ct.App. 1992); Bowman v. Bowman, 493 N.W.2d 141 (Minn.Ct.App.1992); Madden v. Madden, 558 P.2d 669 (Wyo.1977); E.I. duPont due Nemours & Co. v. Universal Moulded *252Products Corp., 189 Va. 523, 53 S.E.2d 835 (1949).

¶ 7 Therefore, in light of the interlocutory nature of this appeal, I find this Court lacks jurisdiction, and the appeal should be quashed. Accordingly, I respectfully dissent.