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HomeMy WebLinkAbout02-26-03IN RE: : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA APPOINTMENT OF A GUARDIAN : OF THE PERSON OF : MILDRED J. GERBER, : ORPHANS' COURT DIVISION an alleged incapacitated person : : NO. 21-01-92 BRIEF OF PETITIONER IN SUPPORT OF FINDING OF CONTEMPT OF FREDERICK E. GERBER, II AND NOW COMES, Petitioner Marilyn Jo Gerber by and through her counsel and files this Brief in Support of Petitioner's Request for Finding of Contempt against Respondent, Frederick E. Gerber, II for non-compliance with the Order of Court dated March 25, 2002. I. STATEMENT OF THE CASE. On or about March 25, 2002, this Court issued an Order that was entered of record on March 27, 2002, directing that the personal guardian of Mildred Gerber shall allow Marilyn Jo Gerber to visit with her mother for four continuous hours each week when Marilyn Jo Gerber could arrange to be where her mother is located. Thereafter on or about July 9, 2002, Petitioner filed a Petition for Review Hearing alleging certain facts and circumstances regarding the conduct of visitations with her mother as directed by the Court and lack thereof. Petitioner in Count I of said Petition for Review Hearing requested relief in the finding of contempt of the guardian for non- compliance with the Court visitation Order. On July 17, 2002, the Petition was deferred pending a challenge on appeal by Petitioner of the Appointment of the Guardian. On July 24, 2002, Respondent filed a Motion for Temporary Suspension of Access Visits with Incapacitated Person to preclude all further access visits by Marilyn Jo Gerber with her mother pending further Court order. On July 29, 2002, this motion was denied without hearing. On or about December 12, 2002, Petitioner filed a Petition to Vacate the Order of Court Dated July 12, 2002, and for a Review Hearing. Petitioner set forth therein the averment of additional facts and circumstances pertaining to the conduct of visitations and lack thereof by her with her mother, Mildred J. Gerber which were precluded by the Guardian contrary to prior Orders of Court of March 25, 2002 and July 29, 2002. Relief was requested by Petitioner which inter alia included a request for finding of contempt by the Guardian for non-compliance with the Order of Court dated March 25, 2002. On December 18, 2002, a Rule was entered against Respondent to show cause why a direct finding of contempt should not be issued for Respondent's failure to allow Petitioner access visits, Rule returnable February 6, 2003. On January 14, 2003, the death of Mildred J. Gerber, the alleged incapacitated person occurred. A hearing was subsequently conducted on Petitioner's request for finding of contempt by the Guardian for filing to comply with the Order of Court dated March 25, 2002. This Brief is submitted pursuant to the request of the Court at the conclusion of said hearing. II. ISSUE. IS A FINDING OF INDIRECT CRIMINAL CONTEMPT AND PUNISHMENT BY FINE A PROPER EXERCISE OF AUTHORITY BY THE COURT FOR THE GUARDIAN'S VIOLATIONS OF THE MARCH 25, 2002 VISITATION ORDER? Suggested Answer: In the Affirmative. 2 III. ARGUMENT. A request for relief has been made by Petitioner, Marilyn Jo Gerber, for a finding that the Respondent, Frederick E. Gerber, II, is in contempt for failing to comply with the Order of Court dated March 25, 2002, which clearly, directly, and unequivocally permitted and directed visitations consisting of four continuous hours each week by Petitioner with her mother, Mildred J. Gerber "when Marilyn Gerber can arrange to be where her mother is located". This Order and relevant pleadings cited in the Statement of Facts, are matters of record before this Court and are incorporated herein by reference. Pennsylvania Courts have always possessed the inherent power to enforce their orders and decrees by imposing penalties and sanctions for a failure to obey or comply with them. Commonwealth Ex. Rel. v. Beghian v. Beghian, 408 Pa. 408, 184 A.2d 270 (1962); Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956); Michaelson v. United States Ex. Rel. Chicago, St. M.&O. R. Co., 266 U.S. 42, 45 S. Ct. 18, 69 L. Ed. 162 (1924); Green v. United States, 356 U.S. 165, 78 S. Ct. 632, 2 L. Ed. 2.d 672 (1958); United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947); Commonwealth Ex. Rel. v. Perkins, 124 Pa. 36, 16 A.525 (1889); Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 114 Pa. Super. 7, 174 A. 11 (1934); Commonwealth v. Sheasley, 102 Pa. Super. 384, 157 A. 27 (1931). Without such power and authority, decrees in many cases would be useless. As the Pennsylvania Supreme Court has indicated in Knaus v. Knaus, supra., Courts otherwise would not be able to protect themselves from insult and enforce obedience to process. 3 Contempt is generally divided into two classifications: (1) civil contempt and (2) criminal contempt, said criminal contempt being either direct or indirect. Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956); Philadelphia Marine Trade Ass'n v. International Long Shoremen's Ass'n, 392 Pa. 500, 140 A.2d 814 (1958); Commonwealth Ex. Rel. v. Beghian v. Beghian, 408 Pa. 408, 184 A.2d 270 (1962); Marco Industries, Inc. v. United Steel Workers of America, 401 Pa. 299, 164 A.2d 205 (1960). The objectives and dominant purpose of a contempt proceeding determines whether it is civil or criminal. If the dominant purpose of the proceeding is to vindicate the dignity and the authority of the Court as a general matter or to protect the interests of the general public, it is to be considered a proceeding for criminal contempt. Philadelphia Marine Trade Ass'n v. International Long Shoremen's Ass'n, 392 Pa. 500, 140 A.2d 814 (1958). On the other hand where the acts of contempt complained of are the refusal to do or refrain from doing some acts that are ordered or prohibited for primarily the benefit of a private party, the proceedings to enforce compliance with that decree of Court are considered civil in nature. Id. The purposes of a civil contemp proceeding are generally remedial and the judicial sanctions are employed (1) to coerce the Defendant into compliance with a Court's order, and (2) in some instances to compensate the Complainant for losses which have been sustained. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947); Philadelphia Marine Trade Ass'n v. International Long Shoremen's Ass'n, supra. Judgments in civil contempt proceeding which ultimately benefit a private party certainly may vindicate the authority of the Court just as a finding of criminal contempt, as a punitive measure, may also advance private interests. The incident results of the proceeding are not the test 4 but rather the dominant purpose. Gompers v. Buck's Stove and Range Company, 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911); Commonwealth Ex. Rel. Cox v. Cox, 391 Pa. 572, 137 A.2d 779 (1958). It is also recognized however that although the line between civil and criminal contempt is sometimes blurred, the same facts, circumstances or conduct may nevertheless constitute or amount to both civil and criminal contempt. United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947); Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956). This has been recognized by the Pennsylvania Supreme Court as a matter of common sense and such that the same acts may justify a Court in resorting to coercive and punitive measures. Philadelphia Marine Trade Ass'n v. International Long Shoremen's Ass'n, 392 Pa. 500, 140 A.2d 814 (1958). In addition, it has also been recognized that a Court can for present and past acts of misbehavior which amount to civil contempt oppose unconditional compensatory fines and/or conditional fines and imprisonment and such fines may be payable to either the United States, the Commonwealth, a County, or to any individual who was so injured. United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947); McComb v. Jacksonville Paper Company, 336 U.S. 187, 69 S. Ct. 497, 93 L. Ed. 599 (1949); Gompers v. Buck's Stove and Range Company, 221 U.S. 418, 431 S. Ct. 492, 55 L. Ed. 797 (1911); Commonwealth Exrel. v. Beghian v. Beghian, 408 Pa. 408, 184 A.2d 270 (1962); Parker v. United States, 126 F.2d 370 (1 Cir. 1942). 5 Criminal contempts are further subdivided into both direct and indirect contempts. Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956); Casco Products Corporation v. Hess Brothers, Inc., 184 Pa. Super. 47, 132 A.2d 922 (1957); Penn Anthracite Mining Co. v. Anthracite Miners of Pennsylvania, 318 Pa. 401,178 A. 291 (1934); Kegg v. Bianco, 151 Pa. Super. 30 A.2d 159 (1943). Any reference however to the use of the term "criminal" within the context of criminal contempt does not require or relate only to indictable crimes. Philadelphia Marine Trade Ass'n v. International Long Shoremen's Ass'n, 392 Pa. 500, 140 A.2d 814 (1958); Gompers v. Buck's Stove and Range Company, 221 U.S. 418,431 S. Ct. 492, 55 L. Ed. 797 (1911); United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947); Patterson v. Wyoming Valley District Council, 31 Pa. Super. 112 (1906). Direct criminal contempt consists of misbehavior or misconduct of a person which is directly in the presence of the Court or so near to that Court as to interfere with its immediate business. Such acts have not occurred in the present action. Indirect civil contempt is generally found consistent of violation of an order or decree of a Court which occurs outside the presence of that Court. Brocker v. Brocker, 429 Pa. 513,241 A.2d 336 (1968)', cert. denied 393 U.S. 1081, 89 S. Ct. 857, 21 L. Ed. 773 (1969). Such is the case with regard to the Guardian's actions pertaining to the March 25, 2002 visitation Order. Criminal contempt proceedings impose sanctions that do not just seek compliance with the prior order but effect punishment for prior acts that have been done. Such a sanction cannot be 6 alleviated because it is imposed for an offense which is completed. Richland Township v. Prodex, Inc., 156 Pa. Cmwlth. 313,646 A.2d 652 (1994); Crozer-Chester Medical Center v. Moran, 522 Pa. 124, 560 A.2d 133 (1989). It is also established by Pennsylvania Courts that findings of contempt for violations of Court orders are sustainable and proper, if such order or decree was definite, clear, specific and leaves no doubt or uncertainty in the mind of the person to whom it is addressed or the conduct which is prohibited. Commonwealth. v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978); Penn Cambria School District v. Penn Cambria Education Ass'n, 134 Pa. Cmwlth. 121,578 A.2d 994 (1990). Upon conclusion of the hearing in this matter, the parties were charged with addressing the requirements of relief by indirect criminal contempt. In doing so, as noted above, Pennsylvania Courts have not necessarily precluded that the same facts may support both civil and indirect criminal contempt findings. See also, Grubbv. Grubb, 326 Pa. Super. 218, 473 A.2d 1060 (1984). In Knaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956), the Pennsylvania Supreme Court discussed at length the principles of the dominant purpose test for determination of relief as civil or criminal contempt. The specific factors pertaining to civil contempt fit the circumstances of the case at bar: (1) the Petitioner is the person who is benefitted from the Order of Court of March 25, 2002, by the visitations ordered; (2) Petitioner's proceedings were filed in continuation of and as a part of the original actions appointing the guardian, the requests and award for visitation, the request for Review Hearing of the Guardian's actions; (3) holding the Guardian in contempt or to afford relief to the Petitioner, private party; and (4) the relief is requested primarily for Petitioner's 7 benefit in terms of compensation for damages, losses or unnecessary costs incurred by the Petitioner as the direct result of Guardian's actions; and (5) the acts themselves - non-compliance with a directive to allow visitations - are civil in character and itself do not constitute a defined statutory criminal conduct. It may be argued that remediation is not possible for Petitioner under the circumstances with the death of Mildred Gerber as future compliance with the March 25, 2002 Order is moot. At the time the proceedings were initiated however, and pursued in July 2002 and December 2002, certainly such relief was available, although at the time of the heating conducted on February 6, 2003, it was not. Two years after Knaus v. Knaus, the Pennsylvania Supreme Court in Philadelphia Marine Trade Ass'n v. International Long Shoremen's Ass'n, 392 Pa. 500, 140 A.2d 814 (1958) found that contempt orders out of injunctive relief versus a Union and its members were reversed due to the inexact reasoning of the lower court and its attempts to punish violators for past acts of behavior rather than establish conditions for compliance and the conditional punitive measures on the failure to comply. It was noted however by Justice Bell in that decision however that it is a well-settled principle in proceedings for civil contempt, the imposition of remedial punishment of fines to an aggrieved litigant (private party) as compensation for special damages, which is conditional on imprisonment, is sustainable. Certainly imprisonment cannot undo the past acts of the Guardian in this case or coerce future compliance under the March 25, 2002 Order. However, as noted by the Pennsylvania Supreme Court, the only possible remedy for disobedience would have been to impose a fine for the use of the aggrieved person, measured in some degree by pecuniary injuries 8 resulting to the Petitioner from the contumacious acts. Philadelphia Marine Trade Ass'n v. International Long Shoremen's Ass'n, 392 Pa. 500, 140 A.2d 814 (1958). In McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S. Ct. 497, 93 L. Ed. 599 (1949), the U. S. Supreme Court upheld a contempt order allowing a purge of past acts of contempt conditioned upon payment of certain statutory wages which were due to affected employees under the Fair Labor Standards Act. Subsequently, the Pennsylvania Supreme Court in Brocker v. Brocker, 429 Pa. 513,241 A.2d 336 (1968), recognized that judicial sanctions in civil contempt actions may be employed for either or both purposes of coercing compliance with an order of court and compensating a complainant for losses. It is submitted that a dual finding of civil and criminal contempt with respect to the actions of the Guardian in this case as noted above may be made. The measure of sanctions is a fine for compensation to the Petitioner commensurate with the losses she has incurred. Total losses and expenses incurred by the Petitioner pursuant to the Order of March 25, 2002, exceed $22,286.00. Pursuant to the dominant purpose test the focus of these proceedings is the vindication of the authority and the dignity of this Court for compliance with its Order of March 25, 2002, and punishment of contemnor Guardian for his past actions and refusal to obey this Order. Therefore, a finding of indirect criminal contempt is appropriate. As a general matter, in order to establish a claim of indirect criminal contempt, the evidence must be sufficient in order to sustain that: (1) the Order is definite, clear, specific and leaves no doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited; (2) the contemnor must have had notice of the specific order or decree; (3) the act constituting the violation must have been volitional; and (4) the 9 contemnor must have acted with wrongful intent. Commonwealth v. Baker, 564 Pa. 192, 766 A.2d 328 (2001); Diamond v. Diamond, 715 A.2d 1190 (Pa. Super. 1998). The actions of the contemnor must be willful or at least reckless and the required elements proven beyond a reasonable doubt. Smith v. Mason, 328 Pa. Super. 314, 476 A.2d 1347 (1984). This criteria is met in the case subjudice. The Order of March 25, 2002, is clear, specific and leaves no doubt that four hours of continuous visitation each week are to be provided to Petitioner, Marilyn Jo Gerber. They are directed to be provided "when" she can arrange them and "where" her mother is located. The footnote to the visitation Order noted that visitation could be conducted in a manner that was not contrary to the best interest of Mildred J. Gerber. The issue at hearing of the matter was whether any visitation would be allowed. In July 2002 this Order was affirmed and it was noted that difficulties existed between the parties in this action but nevertheless the July 29, 2002 Order directed that the visitations would continue and limited only in time as directed by the Court's March 25, 2002 Order. It is undisputed that the Guardian and his counsel had notice of both of these specific Orders of March 25, 2002 and July 29, 2002. Therefore, the second criteria for finding indirect criminal contempt is satisfied. All of the acts which Petitioner has brought to the Court's attention in these proceedings and complained of as being in violation the Court's Order were volitional by the Guardian. Numerous communications are evidenced of record between the parties. Direct communications are provided from counsel for Guardian indicating specifically the limitations that were placed upon visitations and the restrictions placed upon the availability of Mildred Gerber contrary to the 10 intention of the Court in the March 25, 2002 Order. Restrictions included, for example, no weekends, holidays, Tuesdays, Thursdays and advance notice by as much as thirty (30) days was demanded. Petitioner, Marilyn Jo Gerber, by and through her counsel on numerous occasions proposed alternative arrangements with the Guardian for visitations with Mildred Gerber. On the whole, these suggestions and requests were either ignored, not adhered to or never seriously considered. It is clear that the Guardian's actions were volitional, willful and with wrongful intent of fulfilling his purpose to restrict any and all access or communication by Marilyn Jo Gerber with her mother, Mildred J. Gerber. Contempt and indirect criminal contempt proceedings are also governed by the Judicial Code, 42 Pa. C.S.A. § 4131 et. seq., which limits the inherent power of the Court to impose summary punishment for contemptuous misconduct. See, Matter of Campolongo, 495 Pa. 627, 435 A.2d 581 (1981). Persons charged with indirect criminal contempt for violations of restraining orders or injunctions issued by the Court are afforded specific rights under Section 4136 to bail, notice, speedy and public trial by an impartial jury. 42 Pa. C.S.A. § 4136(a). The provisions of Section 4136 are inapplicable to the case at bar as there is no injunction or restraining order at issue. See, Bruzzi v. Bruzzi, 332 Pa. Super. 346, 481 A.2d 648 (1984). The power of the Courts of the Commonwealth to issue attachment and impose summary punishment is set forth under Tile 42 Pa. C.S.A. § 4132, restricting punishments for contempt to: (1) the official misconduct of officers of courts respectively; (2) disobedience or neglect of officers, parties, jurors or witnesses of or to the lawful process of the court; and (3) the 11 misbehavior of any person in the present of the court thereby obstructing the administration of justice. It is further directed under 42 Pa. C.S.A. § 4133, that except as otherwise provided by statute, the punishment of commitment for contempt under Section 4133 shall extend only to those contempts which are committed in open court. "All other contempts shall be punished by fine only." 42 Pa. C.S.A. § 4133. Accordingly, the appropriate remedy to be implied in the case subjudice, is that of fine imposition. Bruzzi v. Bruzzi, 332 Pa. Super. 346, 481 A.2d 648 (1984); Grubbv. Grubb, 326 Pa. Super. 218, 473 A.2d 1060 (1984); 42. Pa. C.S.A. § 4133. Conditional commitment for failure to pay such fine may be awarded. 42 Pa. C.S.A. § 4134. The fine to be imposed by the Court should be punitively commensurate under the circumstance with the activities and actions of Guardian with respect to the Order of March 25, 2002. By example, civil contempt violations may result in unconditional fines, based upon evidence of actual loss, to coerce future compliance in lieu of future fine or punishment. See, Mrozek v. James, 780 A.2d 670 (Pa. Super. 2001); Brocker v. Brocker, 429 Pa. 513,241 A.2d 336 (1968). No less should reasonably be considered for indirect criminal contempt which seeks to punish past misbehavior. In any event, each Court is the exclusive judge of contempts before it and with due discretion accorded to it. See, Ricci v. Geary, 447 Pa. Super. 609, 670 A.2d 190 (1996). Despite the efforts of Petitioner to resolve matters amicably with the Guardian on numerous occasions after March 25, 2002, these efforts were without success. The result of these efforts were only additional litigation in the nature of two requests for Review Hearings, and the necessity 12 to proceed with entry of the Court's March 25, 2002 Order in Illinois for purposes of obtaining full faith and credit and enforcement thereof. Petitioner was placed under great strain and burden for purposes of traveling to meet her mother and arrange visitations. It was the Guardian under the circumstances which removed, and chose to keep, Mildred J. Gerber in Illinois and from her original primary residence in New Cumberland, Pennsylvania. Accordingly, time, expense and difficulty was occasioned to the Petitioner in attempting to arrange visitations based upon her availability. Testimony was received establishing out-of-pocket expenses inclusive of airfare, rental vehicles, hotel costs, gas, tolls, parking and sundry items in excess of $14,616.00. Counsel fees were incurred by the Petitioner with regard to the entry and enforcement of the March 25, 2002 Order in Illinois in excess of $2,000.00. Counsel fees for proceedings in this case as well as communications and negotiations with the Guardian prior thereto, the Review Hearing requests of July and December, 2002 and the related visitations were incurred by Petitioner in the amount of $5,670.00. None of the expense for which testimony has been presented by the Petitioner regarding out-of-pocket expenses, Illinois counsel fees and Pennsylvania counsel fees would have been incurred but for the actions of the Guardian. It is submitted therefore, that a fine commensurate with all such expenses would not be capricious, arbitrary or unreasonable and should be directed payable by the Guardian to Petitioner equivalent to the expense incurred in the minimum amount of $22, 286. 13 IV. CONCLUSION. By reason of the foregoing authorities and arguments cited, Petitioner respectfully requests this Court to enter a finding of indirect criminal contempt and impose a fine upon Guardian, Frederick E. Gerber, II, payable to Petitioner in the minimum amount of $22,286; or in the alternative, to issue a finding of civil contempt and direct an award for reimbursement of Petitioner's losses in the amount of $22,286.00 to the Petitioner. Re~~submitted~ Date: February 26, 2003 By: Stanley J. A. IJ0gl~wski, Esquire Attorney I. D. # 37422 Caldwell & Keams, P.C. 3631 North Front Street Harrisburg, PA 17110-1533 (717) 232-7661 Attorney for Petitioner, Marilyn Jo Gerber 01607/53103 14 CERTIFICATE OF SERVICE AND NOW, this 26th day of February 2003, I hereby certify that I have served a copy of the within document on the following by depositing a tree and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Richard C. Rupp, Esquire Rupp and Meikle 355 North 21st Street, Suite 205 Camp Hill, PA 17011 CALDWELL & KEARNS By: