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HomeMy WebLinkAbout09-08-09 (2)' J. A27026/08 NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P.65.37 ESTATE OF: LINWOOD B. PHILLIPS, J R. ALICE R. PHILLIPS, Appellee v. ROBERT G. FREY IN THE SUPERIOR COURT OF • PENNSYLVANIA N ~- m ~~~ ~ ~~ ~. ~ ~~ APPEAL OF: KARL E. ROMINGER, ESQ., Appellant NO. A 24®7 ; Appeal from the Order entered February 8, 2007 In the Court of Common Pleas of Cumberland County Orphans' Court Division, at No. 21-06-0122 BEFORE: PANELLA, CLELAND, JJ. and MCEWEN, P.J.E. MEMORANDUM: FILED: December 19, 2008 Karl E. Rominger (Rominger) appeals from the order of the Court of Common Pleas of Cumberland County finding him in contempt for failure to appear at deposition as ordered. We affirm in part and reverse in part. The underlying case arises out of the challenge by decedent Linwood B. Phillips second wife (Wife) to the validity of aPre-Nuptial Agreement and her claims regarding attorney Rominger's alleged conflict of interest and incompetent legal advice in advising her to sign the Agreement. Rominger was scheduled for deposition two times. The first time he appeared but refused to testify, citing potential liability and a possible ~f'~ J. A27026/08 malpractice suit. In addition, Rominger claimed Wife needed to appear and waive the attorney-client privilege. In response, Wife filed a Motion to Compel Deposition which the court granted and ordered Rominger to appear at a rescheduled deposition. Rominger took no further action until the day before the second deposition when he contacted lawyers for Wife to inform them he would not appear. Rominger also filed an Emergency Request to Stay Deposition on the day he was scheduled to appear at the second deposition. The court did not grant relief, and Rominger failed to appear at the second deposition. Upon reviewing the Emergency Request to Stay Deposition, the trial court scheduled a contempt hearing. At the hearing the trial court heard statements, not under oath, from Rominger, Rominger's malpractice counsel assigned to the case and attorney for Wife. After considering the statements and the pleadings in this case, the court found Rominger in contempt, fined him $500, and awarded Wife attorney's fees in the amount of $5,662.83. Rominger appealed. "As each court is the exclusive judge of contempts against its process, we will reverse an order of contempt only upon a showing of a plain abuse of discretion." Diamond v. Diamond, 792 A.2d 597, 600 (Pa. Super. 2002). When considering whether the trial court abused its discretion we must first determine whether the contempt was civil or criminal, and whether the appropriate due process was employed based on the distinction. -2- J. A27026/08 This Court previously has discussed the distinction between civil and criminal contempt: The distinction between criminal and civil contempt is crucial as the due process provided differs significantly. However, there is nothing inherent in a particular contemptuous act that classifies such act as either criminal or civil contempt. Rather, the distinction between the two is the court's dominant purpose in using the contempt power. This court has recently explained the difference between the two as follows: If the dominant purpose is to vindicate the dignity and authority of the court and to protect the interest of the general public, it is a proceeding for criminal contempt. But where the act of contempt complained of is the refusal to do or refrain from doing some act ordered or prohibited primarily for the benefit of a private party, proceedings to enforce compliance with the decree of the court are civil in nature. The purpose of a civil contempt proceeding is remedial. Judicial sanctions are employed to coerce the defendant into compliance with the court's order, and in some instances, to compensate the complainant for losses sustained. Diamond, 792 A.2d at 600 (citations omitted). The trial court, in its opinion, refers to the contempt as civil contempt. The categorization is warranted because the order benefits a private party (Wife), coerces Rominger to appear for deposition, and compensates Wife for counsel fees expended in connection with the depositions. There are three distinct elements necessary to sustain a finding of civil contempt: "(1) that the contemnor had notice of the specific order or decree which he is alleged to have disobeyed; (2) that the act constituting the contemnor's violation was volitional; and (3) that the contemnor acted with wrongful intent." In Re Contempt of Cu//en, 849 A.2d 1207, 1210 (Pa. Super. 2004). -3- J. A27026/08 Rominger had notice he was to appear at deposition by way of the January 9, 2007 Order granting Petitioner's Motion to Compel Deposition. The trial court found Rominger failed to act in a timely fashion before the second deposition by failing to file objections to protect his rights; rather, he waited until the last minute to obtain an opinion from his malpractice insurance carrier that he should not testify. The trial court noted Rominger had months to obtain such guidance and such a delay displayed Rominger's wrongful intent. Further, because the contempt order was predicated on violation of the order to appear and was followed by a full hearing, "due process require[d] nothing more than notice of the violations alleged and an opportunity for explanation and defense." Wood v, Geisenhemer-Shau/is, 827 A.2d 1204, 1207 (Pa. Super. 2003) citing. Diamond v, Diamond, 792 A.2d 597, 601 (Pa. Super. 2002). Rominger had the opportunity to present an explanation and defense at the contempt hearing. Despite Rominger's argument to the contrary, the trial court had sufficient evidence in the form of counsels' statements at the contempt hearing to find him in civil contempt. Rominger's willful delay in responding at the last minute when he had several months to do so and his wrongful failure to appear support the trial court's finding of civil contempt. Concerning the award of counsel fees, judicial sanctions may be employed to compensate a complainant for losses sustained or to coerce a -4- ' ~. r+civ~o/va J. A27026/08 party into compliance with a court order. See Cu//en 849 A.2d at 1210. We review an order awarding of counsel fees for abuse of discretion. See In re Nader, 588 Pa. 450, 905 A.2d.450 (2006). Counsel for Wife presented the trial court with an exhibit detailing counsel fees for work completed. The fees stemmed from counsel preparing for two depositions. The counsel fees were caused or increased by Rominger's refusal to testify at the first deposition and failure to appear at the second deposition. The fees were reasonable in light of the contempt and compensated Wife for fees incurred as a result of Rominger's contempt. The trial court did not abuse its discretion in awarding the counsel fees. The $500 fine is more problematic. A fine, almost by definition, is a penalty for failure to comply with a court order, and it is clearly so in this case. It cannot be said that by complying with the sanction of a fine Rominger would be "allowed to carry the keys to the jail in his pocket." Fou/k v. Fou/k, 789 A.2d 254, 258 (Pa. Super. 2001) citing Stee/ v. Weisberg, 534 A.2d 814 (Pa. Super. 1987). He cannot satisfy any future condition that will relieve the burden of paying the fine. The sanction has been imposed regardless of his future conduct. If a court, in holding a person in contempt for failure to obey its order, imposes a fine -5- J. A27026/08 and specifically states it is a penalty imposed for past conduct,l then that can only be deemed a sanction for criminal contempt which triggers a range of due process rights not afforded Rominger in this case. We hold the trial court properly found Rominger in civil contempt and we affirm the order of the trial court finding Rominger in contempt and ordering him to pay counsel fees. We reverse that portion of the order imposing on Rominger a $500 fine. Order affirmed in part and reversed in part. Judgment Entered: ~ ~ e uty Prothonotary Date: December 29, 2008 1 Imposition of a fine conditioned on future conduct, however, may be an entirely proper civil sanction. If, for example, the order requires a contemnor to pay a fine unless specific action is taken within a specific time, then its purpose is remedial and the sanction is within the scope of civil contempt. -6-