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____________________________________ * Retired Senior Judge assigned to the Superior Court. IN THE INTEREST OF E.O., A MINOR

APPEAL OF: A.O., FATHER : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2641 EDA 2017 Appeal from the Order Entered August 3, 2017 In the Court of Common Pleas of Philadelphia County Family Court at

No(s): CP

- 51

- DP

- 0000127

- 2017
IN THE INTEREST OF: B.O., A MINOR

APPEAL OF: A.O., FATHER : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2643 EDA 2017 Appeal from the Order Entered August 3, 2017 In the Court of Common Pleas of Philadelphia County Family Court at

No(s): CP

- 51

- DP

- 0000228

- 2017

BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J. OPINION BY LAZARUS, J.: FILED SEPTEMBER 05, 2018 A.O. (Father) appeals from the order s , entered in the Court of Common Pleas of Philadelphia County, finding him in contempt 1 for violating a visitation

_________________ __________ ______ ____ _______ 1 When reviewing a contempt conviction, much deference is given to the discretion of the trial judge. Accordingly, we are confined to a det ermination of whether the facts support the trial court ’ s decision. Commonwealth v. Pruitt , 764 A.2d 569 , 5 7 4 (Pa. Super. 2000).J

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order in an underlying dependency proceeding and ordering him to serve seven days of incarceration

. After ca reful review, we vacate and remand for further proceedings

. At a January 2017 2 shelter care hearing , legal custody of Father’s minor children, E.O. and B.O. (Children), was transferred to the Philadelphia Department of Human Services (DHS) ; Children were p laced in a foster home

. In February 2017, Children were adjudicated dependent ; the trial court ordered Father have weekly, supervised, line

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- hearing visits with Children , at Children’s discretion, at the Community Umbrella Agency (Agency)

. 3 A t an Augus t 3, 2017 permanency review hearing, the trial court found Father in contempt for violating the visitation order after Children told their assigned social worker that Father calls them on the telephone ten times a day and was meeting with them after court appearances. 4 At the conclusion of the hearing, the court ordered Father to immediately serve seven days of incarceration for

_________________ __________ ______ ____ _______ 2 In October 2016, DHS received a report alleging that Children’s sibling was being emotionally abused by Mother. See Dependency Petition, 2/2/17. There were also reports of a history of verbal and physical domestic abuse between Mother and Father and that Father verbally abused Children’s older sibling.

3 The permanency order also stated that visitation could be modifi ed by agreement of the parties, parents were to confirm their visits 24 hours in advance, and, if parents fail ed to confirm visits within that time frame, they were not to occur. Permanency Review Order, 2/7/17, at 2. Finally, the order referred both Mot her and Father for counseling and evaluations. Id.

4 See N.T. Permanency Hearing, 8/3/17, at 11

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contempt

. 5 The court ordered both parents to continue with supervised visits at the A genc y, at the sole discretion of Child ren . O n August 10, 2017 , the court held a hearing, stating that the “case was brought back today only to release Father from incarceration at CFCF. Father was held in contempt in violation of court order at the last hea ring on 8/3/2017.” Father filed a timely notice of appeal from the court’s contempt order and a court
- ordered Pa.R.A.P. 1925(b) concise statement of errors raised on appeal. 6 He raises the following issues for our consideration: (1) Whether the trial court er red by finding Father in criminal contempt, rather than civil contempt. (2) Whether the trial court erred by sentencing Father for direct criminal contempt rather than indirect criminal contempt. (3) Whether the trial court erred by failing to provide Father with all necessary [ c ] onstitutional protections and safeguards required for criminal defendants.

_________________ __________ ______ ____ _______ 5 Specifically, the permanency order states: THE COURT FURTHER FINDS Parents had unauthorized contact with Child. * * * Father to be held in co ntempt, on State Road for 7 days due to violating court order. Permanency Review Order, 8/3/17, at 1.

6 In his Rule 1925(b) statement, Father states that he did not have “inappropriate contact with any of [his] children, ” that he did not violate the visitation order by calling Children, that he did not call Children ten times per day as alleged, and that “[ t ] he court may have mistaken [ him ] for [ Mother ]

. ” See Father’s Pa.R.A.P. 1925(b) Statement, 8/14/17.J

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(4) Whether the trial court erred by failing to establish Father’s guilt beyond a reasonable doubt. (5) Whether the trial court erred by failing to sentence Father in accor dance with the Pennsylvania Rules of Criminal Proce d ure. Appellant’s Brief, at 7. Contempt of court may be classified as civil or criminal in nature. The distinction between the two categories lies in the purpose behind the court’ s finding of contempt. If the dominant purpose of the court is to prospectively coerce the contemnor into compliance with the court ’ s directive, the adjudication is one of civil contempt. However, if the court ’ s dominant purpose is to punish the contemnor for disobedience of the c ourt ’ s order, the adjudication is one of criminal contempt. In the Interest of C.W. , 960 A.2d 458, 466 (Pa. Super. 2008) (emphasis added) , citing Pruitt , supra at 573. Criminal contempt may be classified as either direct or indirect. “ A direct criminal contempt consists of misconduct of a person in the presence of the
court , or disobedience to or neglect of the lawful process of the court, or misbehavior so near thereto as to interfere with the immediate business of the court. ” Fenstam aker v. Fenstamaker , 487 A.2d 11 , 14 (Pa. Super. 1985) (citation omitted) ; Commonwealth v. Marcone , 410 A.2d 759, 762 (Pa. 1980)

. “A charge of indirect criminal contempt consists of a claim that a violation of an order or decree of court occurred outside the presence of the court.” Commonwealth v. Ashton , 824 A.2d 1198, 1203 (Pa. Super. 2003) (citation omitted). Criminal contempt is a crime punishable by imprisonment or fine; sentences of imprisonment for contempt must be imposed according to the Sentenc ing Code, 42 Pa.C.S.A. § 9701. Commonwealth v.J

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Falkenhan , 452 A.2d 750, 757 (Pa. Super. 1982) (citation omitted). Moreover, in cases where one is accused of criminal contempt, whether direct or indirect, the accused is entitled to certain procedural safe guards.
To establish a claim of indirect criminal contempt, the evidence must be sufficient to establish the following four elements: (1) the order in question must be definite, clear, specific and leave 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 contemnor must have acted with wrongful intent. Asht on , 824 A.2d at 1203 (citation omitted). The Pennsylvania Supreme Court has emphasized that the order underlying a finding of indirect criminal contempt must limit the alleged contemnor ’ s conduct in a clear and definite

manner. Id. Moreover, p ursuant to 42 Pa.C.S. § 4133, except as otherwise provided by statute, “the punishment of commitment for contempt provided in section 4132 . . . shall extend only to contempts committed in open court. All other contempts shall be punishable by fine only

. ” 42 Pa.C.S. § 4133 (emphasis added). Here, the trial court’s order constituted a finding of criminal 7 contempt where the visitation order set forth specific conditions surrounding Father’s

_________________ __________ ______ ____ _______ 7 The characteris tic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of contempt by complying with the court ’ s directive. If he is given an opportunity to purge himself before imposition of punishment, the contempt order is civil in nature. Sinaiko v. Sinaiko , 664J

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visitation rights with Children , h e allegedly violated these con ditions by calling Children on the phone daily and meeting with them after court proceedings , and the court specifically stated that “ it expect[s] that [its] court order will be abided by.” N.T. Permanency Hearing, 8/3/17, at 22 (“that’s defiance of my

co urt order”) ; see Commonwealth v. Griffiths , 15 A.3d 73 , 77 (Pa. Super 2010) (“ 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. ”) (cit ation omitted) ; s ee also Cipolla v. Cipolla , 398 A.2d 1053 (Pa 1979) (if contempt consists solely of past act, only allowable judicial response is punitive, and any contempt adjudication must be criminal). While Father’s conduct may have amount ed to crimi nal contempt where the trial court clearly sought to vindicate its authority and to punish Father for his alleged misconduct , Father’s contemptuous conduct did not occur in open
court , nor did his misbehavior occur “ so near thereto as to interfere with the immediate business of the court. ” Fenstamaker , supra . Thus, his conduct is classified as indirect criminal contempt. Compare Commonwealth v. Baker , 766 A.2d 328 (Pa. 2001) (charge of indirect criminal contempt consists of claim that violation of court order or decree occurred outside presence of

_________________ __________ ______ ____ _______ A.2d 1005, 1009 (Pa. Super. 1995) (citation omitted). If the purpose of the order is to punish despite an opportunity to purge, the order is criminal in nature

. Id. Here, the court clearly imposed criminal, not civil contempt upon Father by immediately incarcerating him for violating a visitation order and not giving him an opportunity to purge.J

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court) with Knaus v. Knaus , 127 A.2d 669, 671 (Pa. 1956) (direct contempt occurs either in presence of court or “so near thereto to interfere with its immediate business.”). Where one is accused of indirect criminal contempt, he shall enjoy the right to be notified of the accusation and time to prepare a defense. See Cipolla , 398 A.2d at 1056 ; see also In re Martorano , 346 A.2d 22 (Pa. 1975) (accused in criminal contempt proc eeding entitled to essential procedural safeguards attendant to criminal proceedings generally). Moreover, an individual may only be found guilty if the order underl y ing the finding of indirect criminal contempt limited his conduct “in a clear and defini te manner.” Ashton , supra . Here, the visitation order permitted Father to have weekly, supervised, line

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- hearing visits with Children at the Agency , at Children’s discretion, an d also permitted modification of visitation by agreement of the parties

. Father instantly denied calling Children ten times a day 8 and also claimed he never had unauthorized meetings with Children a fter court proceedings. N.T. Permanency Review Hearing, 8/3/17, at 23

- 25. Although the trial judge deemed F ather not credible and found him to be manipulative,
it did not provide Father with any of the required procedural safeguards

_________________ __________ ______ ____ _______ 8 Notably, the permanency order does not mention whether Father was permitted to contact Children via telephone or whe ther he was restricted from communicating with them other than during supervised visitation.J

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attached to indi rect criminal contempt matters. Moreover, pursuant to section 4133, the trial court was only permitted to fine Father , not incarcerate him

. See Commonwealth v. Marcone , 410 A.2d 759 (Pa.1980) (restricting incarceration to direct contempts). 9 Because the trial court clearly failed to understand the nature of the proceedings , imposed an unauthorized sentence of imprisonment and , concomit antly, failed to accord Father the procedural safeguards he was due , we must v acate

. Pruitt , supra . Order vacated. Jurisdiction relinquished. Judge Platt joins this Opinion. Judge Dubow did not participate in the consider ation or decision of this

case .

_________________ __________ ______ ____ _______ 9 I n Commonwealth v. McMullen 961 A.2d 842 (Pa. 2008), the Supreme Court held 42 Pa.C.S.A. § 4136 (statute for indirect criminal contempt proceedings involving re straining order or injunction) unconstitutional, recognizing that the right to a jury trial is procedural, that the Penn s ylvania Constitution only provide s for a jury trial when a criminal defendant face s a term of imprisonment exceeding six month s, and that courts have authority to punish individuals in violation of their orders. The McMullen Court, however, specifically limited its holding to subsection 4136 , stating “[w]e recognize there is other statutory law concerning contempt in Title 42, see 42 P a.C.S. § [§] 4132

- 39; however, only § 4136 is at issue in this case.” Id. at 856 n.6. We realize that section 4133 proscribes a court’s power to imprison an individual found guilty of indirect criminal contempt. However, s ince the constitutionality of se ction 4133 is not before us today, unless and until the Supreme Court holds otherwise, that subse ction is still valid

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/5/18