J-S26013-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AARON MCCANS IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

LA’TOIA BURGESS

APPEAL OF: STACY L. SHIELDS No. 921 EDA 2015

Appeal from the Order November 24, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 11-00087

BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED MAY 04, 2016

Appellant, Stacy L. Shields, Esq., appeals in propria persona from an 

order entered in the Civil Division of the Montgomery County Court of 

Common Pleas on November 24, 2014 that held her in criminal contempt 

and ordered her to pay a fine and attorneys’ fees.1 After careful 

consideration, we vacate and remand for further proceedings.

We quote the trial court’s recitation of the facts and procedural history 

of this case.

The instant matter involves contentious custody and support 

proceeding[s] which have been before th[e trial c]ourt since 

January 2011. Appellant entered her appearance for La’Toia 

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1

“An order imposing sanctions, including one that imposes sanctions on an 

attorney, is considered a final order and is therefore appealable.” Stewart 

v. Foxworth, 65 A.3d 468, 471 (Pa. Super. 2013). As such, we have 

jurisdiction to address the merits of this case.
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Burgess (“Mother”) in this matter on March 15, 2011.[2] On 

October 1, 2014, Mother filed an Emergency Petition to Modify 

Custody (“Mother’s Petition”). On October 20, 2015, the [trial 

c]ourt held a pre-trial short list conference on Mother’s Petition. 

Aaron McCans (“Father”), Father’s counsel Brian Smith[, Esq.,] 

and Mother all appeared for the conference. Appellant, despite 

still being listed as Mother’s attorney of record, failed to appear. 

The issue presented in Mother’s Petition was narrow and had the 

potential to be resolved if Appellant had appeared. Mr. Smith 

informed the [trial c]ourt that he had tried calling Appellant prior 

to the conference in an attempt to resolve Mother’s Petition, but 

received no response. He further informed the [trial c]ourt that 

he could not attempt to contact Mother directly because she was 

still technically represented by Appellant.

The [trial c]ourt subsequently called Appellant’s office from the 

bench. The receptionist who answered the phone informed the 

[trial c]ourt that Appellant was “with a client.” The receptionist 

subsequently checked on Appellant’s status and following [what 

the trial court deemed to be] the passage of an unreasonable 

amount of time, the receptionist informed the [trial c]ourt that 

Appellant would “call back when she was finished.” The [trial 

c]ourt again informed the receptionist that it was calling from 

the bench. When Appellant finally came to the phone, [it 

appeared to the trial court that] she lacked any concern for her 

absence in court. [In addition, the trial court described 

Appellant’s tone] as disrespectful and dismissive. At the 

conclusion of the call, the [trial c]ourt provided Appellant with 

two options: (1) withdraw her entry of appearance in the instant 

matter or, (2) appear for a rescheduled pre-trial short list 

conference. Appellant informed the [trial c]ourt that she would 

withdraw her appearance.

[F]ollowing the call with Appellant, the [trial c]ourt issued an 

[o]rder (the “October 20, 2014 Order”) requiring that Appellant 

“must withdraw her appearance no later than November 3, 

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2 As to the nature, extent, and consistency of Appellant’s representation of 

Mother, Appellant admits in her brief that, “[because Mother] did not have 

the financial resources to afford representation by an attorney and could not 

always pay for such representation, [Appellant] continued to represent 

[Mother] whenever possible.” Appellant’s Brief at 5.
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2014, or, in the alternative, be present for the rescheduled Short 

List Conference on November 18, 2014 at 12:00 [p.m.]....” 

October 20, 2014 Order. The [trial c]ourt filed this Order 

electronically on the docket and sent the Order directly to 

Appellant via first class mail. No notices of return appeared on 

the docket. Appellant failed to withdraw her appearance by the 

November 3, 2014 deadline. Further, Appellant failed to appear 

for the pre-trial short list conference scheduled for November 18, 

2014, in direct contravention of the October 20, 2014 Order. 

Again, due to Appellant’s absence, the [trial c]ourt was unable to 

resolve Mother’s Petition and had no choice but to schedule a 

trial in April 2015, nearly six (6) months into the future. The 

[trial c]ourt never received any correspondence from Appellant 

indicating that she had any conflicts with the November 18, 2014 

conference or that she would be unable to attend for any reason. 

Appellant did not attempt to contact the [trial c]ourt following 

the November 18, 2014 conference to explain her absence.

On November 24, 2014, the [trial c]ourt issued an [o]rder 

finding Appellant in contempt of [c]ourt due to her failure to 

withdraw her appearance or appear for the November 18, 2014 

conference. The [trial c]ourt ordered Appellant to pay a fine of 

$250.00 to the Montgomery County Bar Association and to 

reimburse opposing counsel’s attorney’s fees of $620.00 for his 

preparation and appearance at the two pre-trial short list 

conferences held on October 20, 2014 and November 18, 2014.[] 

The [trial c]ourt also [o]rdered Appellant to be withdrawn as 

counsel immediately and directed that she may not enter her 

appearance in the case again without approval of the [trial 

c]ourt.

Trial Court Opinion, 4/7/15, at 1-3 (footnote omitted).

Appellant filed a motion to reconsider, which the trial court denied. 

Thereafter, Appellant filed a timely appeal to this Court. Pursuant to an 

order of court issued pursuant to Pa.R.A.P. 1925(b) on January 5, 2015, 

Appellant filed a timely concise statement listing the issues she raises in her 

appellate brief. The trial court issued its opinion on April 7, 2015.

Appellant raises the following questions for our consideration:
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[Whether t]he trial court committed an abuse of discretion when 

it summarily found [Appellant] in [c]ontempt of [c]ourt without 

finding that her failure to comply with one of two options in an 

October 20, 2014 [o]rder and be present at a November 18, 

2014 hearing was intentional[?]

[Whether t]he trial court committed an abuse of discretion when 

it summarily found [Appellant] in contempt of court and 

sanctioned her with fines where summary contempt proceedings 

were not warranted and without first having given her notice and 

an opportunity to be heard[?]

[Whether t]he trial court committed an abuse of discretion when 

it summarily found [Appellant] in [c]ontempt of [c]ourt without 

first finding that there had been a significant disruption of the 

[trial c]ourt’s November 18, 2014 proceedings[?]

[Whether t]he trial court committed an abuse of discretion when 

it summarily found [Appellant] in [c]ontempt of [c]ourt for 

failure to comply with an October 20, 2014 [o]rder directing her 

to take one of two actions, which [o]rder was vague and 

uncertain and which did not forewarn that non-compliance 

therewith would be regarded as a contempt of court[?]

Appellant’s Brief at 4.

Appellant’s claims challenge various aspects of the trial court’s 

discretionary authority to issue contempt orders. As these claims are 

interrelated, we shall address them in a single discussion.

“[T]rial courts in Pennsylvania have an inherent power to impose 

summary punishment for contempt of court. This power is set forth in the 

Judicial Code[.]” Commonwealth v. Pruitt, 764 A.2d 569, 573 (Pa. Super. 

2000). Specifically, the Judicial Code provides that:

§ 4132. Attachment and summary punishment for 

contempts.
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The power of the several courts of this Commonwealth to issue 

attachments and to impose summary punishments for contempts 

of court shall be restricted to the following case:

(1) The official misconduct of the officers of such courts 

respectively.

(2) Disobedience or neglect by officers, parties, jurors or 

witnesses of or to the lawful process of the court.

(3) The misbehavior of any person in the presence of the 

court, thereby obstructing the administration of justice.

42 Pa.C.S.A. § 4132.

At the outset, we note our agreement with the trial court that the 

court's imposition of a fine, together with its directive that Appellant 

reimburse opposing counsel’s fees, establish that the trial court adjudicated 

Appellant to be in criminal contempt. The dominant purpose of the court’s 

order was to punish Appellant for her failure to either withdraw her 

appearance in this case or appear in court on behalf of Mother at the 

November 18, 2014 short list conference. Hence, the court adjudicated 

Appellant to be in criminal contempt. See Pruitt, 764 A.2d at 574 (citations 

omitted). 

Next, we ascertain the precise provision of § 4132 that supports the 

trial court’s order. In prior cases, this Court concluded that § 4132(2) 

applies to disobedience or neglect by attorneys to the “lawful process of the 

court.” In the Interest of C.W., 960 A.2d 458, 467 n.9 (Pa. Super. 2008). 

Specifically, we have held that counsel's failure to appear for a scheduled 

court appearance, counsel's failure to communicate with the opposing party 

regarding transcripts, counsel's failure to file timely points for charge, and 
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counsel's failure to file an accounting fall within the scope of § 4132(2). See

Commonwealth v. Kolansky, 800 A.2d 937 (Pa. Super. 2002); Pruitt, 

supra; Estate of Baehr, 596 A.2d 803 (Pa. Super. 1991); Weingrad v. 

Lippy, 445 A.2d 1306 (Pa. Super. 1982). Moreover, this Court has 

generally held that counsel’s failure to provide information to a judge 

implicates the lawful process of the court. See Appeal of J. Shane 

Creamer, 529 A.2d 27 (Pa. Super. 1987). For these reasons, we conclude 

that a finding of contempt based on Appellant’s failure to either withdraw her 

appearance or appear in court at the November 18, 2014 short list 

conference falls within the purview of § 4132(2).

Regarding [§] 4132(2), a finding of contempt pursuant to this 

subsection must be supported by the following four elements:

(1) The [court's] order or decree 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.

Further, unless the evidence establishes an intentional 

disobedience or an intentional neglect of the lawful process of 

the court, no contempt has been proven. Moreover, a conviction 

for criminal contempt requires proof beyond a reasonable doubt.

In the Interest of C.W., 960 A.2d at 467 (quotation, quotation marks, and 

citations omitted).
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We have applied the following standard in reviewing contempt orders 

issued by the trial courts:

When reviewing a contempt conviction, much reliance is given to 

the discretion of the trial judge. Accordingly, we are confined to 

a determination of whether the facts support the trial court's 

decision. Each court is the exclusive judge of contempts against 

its process, and on appeal its actions will be reversed only when 

a plain abuse of discretion occurs. As this Court stated:

The ability to raise a criminal contempt citation empowers a 

trial judge with the ability to maintain command over his or 

her courtroom. Effectively, the criminal contempt sanction 

gives credence to a judge's status as commander in chief 

over his or her courtroom. If we continually carve away at 

this power, the sanctity and balance of the courtroom may 

be in jeopardy. In connection with this sentiment, however, 

this Court has also noted that a trial court should not use 

the drastic sanction of finding a person in criminal contempt 

when a lesser measure will suffice.

Pruitt, 764 A.2d at 574 (quotations, quotation marks, and citations 

omitted).

Notwithstanding Appellant’s arguments that the October 20, 2014 

order was vague and without warning that non-compliance would be 

regarded as a contempt of court, we have little trouble in concluding that 

there was sufficient evidence to establish the first two elements listed in the 

foregoing test. As the trial court found, the transcript of the October 20, 

2014 short list conference and the court’s order issued on that date make 

very clear that Appellant needed to withdraw her appearance or appear for 

court on November 18, 2014 at the rescheduled short list conference. See 

Trial Court Opinion, 4/7/15, at 6-8. Moreover, Appellant’s claim that she 
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should have been forewarned about the consequences of non-compliance is 

self-serving and unworthy of merit. Hence, the record supports the trial 

court’s determinations with respect to the first two elements of direct 

criminal contempt.

We are more troubled, however, with the trial court’s findings that 

Appellant acted with volition and wrongful intent, particularly in light of the 

allegations raised by Appellant on appeal and in view of the fact that the trial 

court did not conduct a hearing to guarantee that its findings rested on a 

well-developed record. Here, the trial court reasoned that Appellant’s failure 

to appear constituted a form of direct criminal contempt. See Trial Court 

Opinion, 4/17/15, at 5-6. The court reasoned further that direct contempt 

was punishable through summary means since inquiry into the identity of 

the contemnor and nature of the offense is unnecessary because the 

misbehavior occurs before the court. Id. We conclude that the court’s 

approach, under the particular circumstances of this case, exceeded the 

bounds of its discretionary authority.

The trial court is correct that we have held that an attorney's failure to 

appear was misconduct that occurred in the presence of the court. See 

Himes v. Himes, 833 A.2d 1124, 1125–1127 (Pa. Super. 2003) (citations 

and internal quotation marks omitted); see also Fenstamaker v. 

Fenstamaker, 487 A.2d 11, 14 (Pa. Super. 1985) (“A direct criminal 

contempt consists of misconduct of a person in the presence of the court, or 
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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.”). 

In Himes, we affirmed the finding of criminal contempt entered when a 

hearing had to be postponed because an attorney failed to appear. Himes, 

833 A.2d at 1128. We have also held, however, that when an attorney had 

conflicting in-court commitments and provided timely and sufficient notice to 

the trial court, there was no willful intent sufficient to support a contempt 

finding. Commonwealth v. Debose, 833 A.2d 147, 150 (Pa. Super. 

2003); see also Ricci v. Geary, 670 A.2d 190 (Pa. Super. 1996); In re 

Bernhart, 461 A.2d 1232 (Pa. 1983). We also reversed a finding of 

contempt entered when an attorney failed to appear due to an in-court 

conflict, even though the attorney failed to provide notice of the conflict. 

See Commonwealth v. Giordano, 386 A.2d 83 (Pa. Super. 1978). These 

cases suggest strongly that an attorney’s failure to appear at a scheduled 

court proceeding is not per se grounds for a finding of contempt where other 

circumstances justify or explain the attorney’s absence.

In this case, the trial court’s order of October 20, 2014 gave Appellant 

the option of withdrawing her appearance or attending the short list 

conference scheduled for November 18, 2014. In response to the trial 

court’s order of October 20, 2014, Appellant alleges in her brief that she 

took the following actions to withdraw her appearance:

[Following issuance of the trial court’s October 20, 2014 order], 

[Appellant] obtained a Prarcipe to Withdraw form from the 
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Montgomery County Prothonotary’s office, filled it in, and sent it 

back to the court. However, because the form required 

[Mother’s] signature, the [c]ourt (per [staff from the trial judge’s 

chambers]) rejected the praecipe and returned it to [Appellant] 

for [Mother’s] signature. With time then of the essence, 

however, [Appellant] forwarded the Praecipe to Withdraw to 

[Mother] for her signature and asked her to return it directly to 

the Prothonotary’s Office by November 3, 2014 instead of 

returning it to [Appellant] who then would have to re-mail it to 

the Prothonotary’s Office.

Believing that [Mother], then had returned the Praecipe to 

Withdraw to the Prothonotary’s Office, [Appellant] believed that 

her appearance had been withdrawn in accordance with the 

[c]ourt’s October 20, 2014 [o]rder, and did not appear at the 

November 18, 2014 conference. Unbeknownst to [Appellant], 

however, [Mother] had been hospitalized and underwent a 

surgical procedure at Jefferson Hospital on October 30, 2014 and 

had not returned the praecipe to withdraw directly to the [c]ourt 

as requested.

Appellant’s Brief at 7. Appellant complains that the court denied her the 

opportunity to proffer this explanation for her non-compliance with the 

October 20, 2014 order.

In the absence of an evidentiary hearing and against the backdrop of 

our prior cases, we are reluctant to conclude (as the trial court has done) 

that Appellant’s failure to appear, without more, demonstrated the requisite 

proof beyond a reasonable doubt that she acted deliberately and with 

wrongful intent. The order at issue gave Appellant the option to withdraw 

her appearance prior to the November 18, 2014 short list conference. 

Appellant has come forward with an explanation declaring that she 

attempted, albeit unsuccessfully, to exercise that option. Appellant raised 

this contention in her motion to have the court reconsider its contempt 
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finding.3 The trial court, however, never conducted a hearing pertaining to 

the sanctions order and, hence, never received or reviewed relevant 

documents or testimony. If credited by the court, Appellant’s explanation 

would tend to show that her conduct, while perhaps irresponsible and 

unprofessional, fell somewhat short of willfully wrong or intentional. 

Accordingly, on the limited record before us, we vacate the order imposing 

sanctions and remand for further proceedings.4

Order vacated. Case remanded. Jurisdiction relinquished.

____________________________________________

3 Appellant attached supporting documents to her reconsideration motion. 

Exhibit C purports to be a praecipe to withdraw Appellant’s appearance 

dated October 23, 2014 that Appellant claims to have forwarded to Mother. 

Exhibit D is a cover letter dated October 25, 2014 that encloses the praecipe 

to Mother. Lastly, Exhibit E is a letter dated December 2, 2014 from a 

physician at Jefferson Hospital that states that Mother underwent a surgical 

procedure at that facility on October 30, 2014. See Appellant’s Motion for 

Reconsideration, 12/11/14.

4 We do not approve Appellant's behavior in any way and we share the trial 

court's frustration in this case. Indeed, Appellant’s conduct in representing 

Mother, admittedly tempered by the client’s financial status, falls well short 

of the standard of zealous advocacy required of Pennsylvania attorneys. 

Nevertheless, “inasmuch as contempt is a creature of law and not merely of 

power,” Stewart, 65 A.3d at 472, we are constrained to vacate the trial 

court’s contempt finding.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2016