J-S13016-18

2018 PA Super 122

TRICIA A. THOMPSON

v.

ASHLEY N. THOMPSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 647 WDA 2017

Appeal from the Order Entered February 15, 2017

In the Court of Common Pleas of Clarion County Domestic Relations at 

No(s): 2015-D00104

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

OPINION BY SHOGAN, J.: FILED MAY 08, 2018

Appellant, Ashley N. Thompson, appeals from the February 15, 2017 

order entered in the Clarion County Court of Common Pleas. After careful 

review, we reverse the order, vacate the trial court’s denial of in forma 

pauperis status, and remand with instructions. 

The trial court set forth the relevant facts of this case as follows:

[Appellant] is the mother of two young children. In 2015, 

she placed the children in the custody of her mother, [Tricia A. 

Thompson, (“Appellee”)], who then sought child support. 

[Appellant] was employed and the Clarion County Domestic 

Relations Office applied the support guidelines and calculated 

[Appellant’s] monthly support obligation at $108. This court 

issued an Order for support. Soon[, Appellant] fell behind. The 

Domestic Relations Office took enforcement action and eventually 

filed petitions for civil and indirect criminal contempt in November 

2015.

Following resolution of those petitions in 2016, this court 

ordered [Appellant] to remain current with her monthly support

obligation of $108 and to pay an additional amount of $30 per 
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month toward arrears, for a total monthly payment of $138. 

[Appellee] requested to terminate the support case, but 

[Appellant] still owed arrears. This court then issued an Order on 

October 11, 2016 directing [Appellant] to continue to pay $138 

per month; all toward the arrears. [Appellant] failed to remain

current and so the Domestic Relations Office filed another 

contempt petition, stating the amount of the arrearages was 

$1,978.18. This court scheduled a hearing for February 14, 2017 

and appointed attorney Gina Bianco to represent [Appellant].

On November 10, 2016, attorney John Troese entered his 

appearance for [Appellant]. There were no further filings until 

February 1, 2017, when attorney Troese filed a Motion to 

Withdraw Contempt and for Continuance of Hearing. This court 

issued an Order on February 2, 2017[,] denying the Motion to 

Withdraw Contempt [because] the court could not order the 

Domestic Relations Office to withdraw its petition. The court also 

denied the Motion for Continuance because the hearing had been

scheduled, and Mr. Troese had known it was scheduled, for almost 

two months. Attorney Bianco, who had previously represented 

[Appellant], was available to represent her at the next hearing if 

attorney Troese was unable to attend.

On February 14, 2017, prior to the hearing, a conference 

officer from the Domestic Relations Office conducted a conference 

with [Appellant] and her attorney Gina Bianco and they reached 

an agreement. [Appellant] agreed she would remain current with 

her monthly payments of $138. She also agreed she was in [civil] 

contempt because she had failed to make the payments as 

previously ordered. She also agreed if she failed to remain current 

she would serve a sentence of incarceration of six months. The 

parties stated the terms of their agreement in a written 

Explanation of Rights and Procedures form dated February 14, 

2017, which is part of the record in this case.

The court commenced the hearing on February 14, 2017[,]

that had been scheduled on the [civil] contempt petition and 

counsel for the Domestic Relations Office and [Appellant] stated 

they had reached an agreement. They explained the terms of

their agreement and presented the Explanation of Rights and 

Procedures form signed by [Appellant]. [Appellant] confirmed on 

the record that she had read and signed the form and she 

understood and agreed with its contents. She informed the court 

she was working and she had the ability to make the payments of 
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$138 per month[,] and she would continue to work and be able to 

pay in the future. She stated she knew if she failed to make the 

payments she would serve a sentence of six months [of] 

incarceration. A transcript has been prepared and is part of the 

record. This court issued an Order dated February 15, 2017 [(“the 

February 15, 2017 order”)], which incorporates the terms of the 

parties’ agreement, including a suspended sentence of six months 

incarceration. [Appellant] has not been incarcerated for failure to 

comply with [the February 15, 2017 order].

On February 28, 2017, attorney Troese filed a Praecipe to 

Proceed In Forma Pauperis for [Appellant], stating she was unable 

to pay the costs. The court issued an Order on March 8, 2017 

denying the application because two weeks earlier, on

February 14, 2017, [Appellant] stated she was employed and was 

able to make payments of $138 per month. Attorney Troese filed 

another Praecipe to Proceed In Forma Pauperis on March 16, 

2017. He also filed a Notice of Appeal on that date. The court 

issued an Order on March 21, 2017 directing [Appellant] to submit 

the required form Affidavit to support her request to proceed in 

forma pauperis. She submitted an Affidavit and another Order 

was issued on April 26, 2017 granting in forma pauperis status for 

the purpose of obtaining copies of the record.

Trial Court Opinion, 6/8/17, at 2-5. Both Appellant and the trial court have 

complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issues for this Court’s 

consideration:

[1.] Was [Appellant] guilty of willful contempt?

[2.] Did the [domestic relations] court fail to follow rules set forth 

by the Supreme Court in addressing the type of contempt in this 

case?

[3.] Is a suspended sentence a proper sanction for contempt of a 

support order[?]

[4.] Is the court’s failure to set a purge amount an error of law[?]
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[5.] Did the court fail to follow the Rules of court when it failed to 

allow [Appellant] to proceed In Forma Pauperis[?]

Appellant’s Brief at 2.1

Our standard of review is well settled:

This court’s review of a civil contempt order is limited to a 

determination of whether the trial court abused its discretion. If 

a trial court, in reaching its conclusion, overrides or misapplies the 

law or exercises judgment which is manifestly unreasonable, or 

reaches a conclusion that is the result of partiality, prejudice, bias 

or ill will as shown by the evidence of record, then discretion is 

abused. 

In order to establish that a party is in civil contempt, there 

must be proof by a preponderance of the evidence that the 

contemnor had notice of the specific order that he or she is alleged 

to have disobeyed, that the act that constituted the contemnor’s 

violation was volitional, and that the contemnor acted with 

wrongful intent.

Cunningham v. Cunningham, ___ A.3d ___, ___, 2018 PA Super 64, at 

*4-*5 (Pa. Super. March 20, 2018) (internal citations and quotation marks 

omitted).

After endeavoring to discern which of Appellant’s five issues are argued 

in the three argument sections of her brief, we conclude that there are two 

overarching claims: 1) whether the trial court erred in its acceptance of the 

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1 For purposes of our disposition, we have renumbered Appellant’s issues. 

Additionally, we note with displeasure Appellant’s violation of Pennsylvania 

Rule of Appellate Procedure 2119. The Rule provides, in pertinent part, “[t]he 

argument shall be divided into as many parts as there are questions to be 

argued[.]” Pa.R.A.P. 2119(a). However, because Appellant’s violation does 

not substantially impede appellate review, we decline to quash the appeal. 

See In re Ullman, 995 A.2d 1207, 1211 (Pa. Super. 2010) (“This Court may 

quash or dismiss an appeal if the appellant fails to conform to the 

requirements set forth in the Pennsylvania Rules of Appellate Procedure.”).
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stipulation subjecting Appellant to incarceration without due process under 

Pa.R.C.P. 1910.25-1 through 1910.25-5; and 2) whether Appellant should 

have been afforded in forma pauperis status. We will address these issues in 

turn.

First, we determine if the trial court erred when it incorporated 

stipulations (“the agreement”), which included incarceration, into the 

February 15, 2017 order. Appellant argues that the stipulated order, which 

incorporated the agreement, is unenforceable because suspended sentences

are illegal, and the order subjected her to incarceration without due process 

and a hearing to determine both her ability to pay and a purge condition. 

Appellant’s Brief at 6-12.

Pennsylvania Rule of Civil Procedure 1910.25-5 provides as follows:

(a) No respondent may be incarcerated as a sanction for contempt 

without an evidentiary hearing before a judge.

(b) The court shall make a finding, on the record, as to whether 

the respondent, based upon the evidence presented at the 

hearing, does or does not have the present ability to pay the 

court-ordered amount of support.

(c) An order committing a respondent to jail for civil contempt of 

a support order shall specify the conditions the fulfillment of which 

will result in the release of the respondent.

Pa.R.C.P. 1910.25-5(a)-(c).

Contempt for noncompliance with a support order is punishable by any 

one or more of the following:

(1) Imprisonment for a period not to exceed six 

months.
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(2) A fine not to exceed $1,000.

(3) Probation for a period not to exceed one year.

(b) Condition for release.--An order committing a defendant to 

jail under this section shall specify the condition the fulfillment of 

which will result in the release of the obligor.

23 Pa.C.S. § 4345(a) and (b). Thus, Appellant is correct in her assertions that 

a suspended sentence is not one of the enumerated punishments, and that 23 

Pa.C.S. § 4345(b) requires a purge condition. Moreover, the statute requires 

the trial court to determine if the alleged contemnor has the present ability 

to pay; it does not contemplate future ability to pay or provide for 

incarceration if there is an inability to pay in the future. In other words, the

agreement removes from consideration a subsequent change in 

circumstances. Although the trial court stated in its Pa.R.A.P. 1925 opinion 

that a change in Appellant’s circumstances would trigger the trial court’s 

determination of what amount Appellant could pay,2this codicil was offered 

after the agreement was executed, and this modification language is not 

contained in the agreement. 

The law is clear that an indefinitely suspended sentence is not a 

sentencing alternative and is illegal. Commonwealth v. Joseph, 848 A.2d 

934, 941 (Pa. Super. 2004) (citations omitted). “It is the uncertainty 

surrounding such sentences, and the disorder they can engender, that 

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2 Trial Court Opinion, 6/8/17, at 9-10.
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prompts their prohibition.” Id. at 941-942. “An indefinitely suspended 

sentence is not a sanctioned sentencing alternative.” Id. at 942. Although 

Joseph dealt with sentencing in a criminal matter, we conclude that its 

rationale is instructive in our review of a sentence imposed for civil contempt.3 

After review, we conclude that the February 15, 2017 order incorporating the 

agreement for a suspended sentence is illegal as it is not an option provided 

in 23 Pa.C.S. § 4345. 

In addition to our conclusion that the indefinitely suspended sentence is 

illegal, we further find the February 15, 2017 order incorporating the 

agreement provided no purge amount and contained no mechanism through 

which the trial court could consider Appellant’s present ability to pay. Thus, 

in addition to imposing an illegal sentence, the February 15, 2017 order 

incorporating the agreement violated Appellant’s right to due process. See

Pa.R.C.P. 1910.25-5 (enumerating the rights and procedure to be followed 

when imposing incarceration for civil contempt). Accordingly, we reverse the

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3 We note that the Clarion County Domestic Relations Section, a participant

in this matter, cites to the fact that Appellant had counsel and consented to 

the agreement. Appellee’s Brief at 9-15. We conclude that this consent is of 

no moment because Appellant could not consent to an illegal sentence. See 

Commonwealth v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014) (stating 

that despite entering a plea bargain, a defendant cannot consent to an illegal 

sentence).
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February 15, 2017 order incorporating the agreement and imposing an 

indefinitely suspended sentence.

4

Next, Appellant claims that the trial court erred when it denied her 

petition to proceed in forma pauperis. Appellant’s Brief at 12. When a 

counseled praecipe to proceed in forma pauperis is filed, the granting of such 

status is administrative. “If the party is represented by an attorney, the 

prothonotary shall allow the party to proceed in forma pauperis upon the filing 

of a praecipe which contains a certification by the attorney that he or she is 

providing free legal service to the party and believes the party is unable to 

pay the costs.” Pa.R.C.P. 240(d)(1). If the trial court does not believe the 

averments in a praecipe to proceed in forma pauperis, the court is required to 

hold a hearing to determine the veracity of the allegations contained in the 

praecipe. Crosby Square Apartments v. Henson, 666 A.2d 737, 738 (Pa. 

Super. 1995) (citation omitted). A trial court’s resolution of a praecipe to 

proceed in forma pauperis will be reversed only if the court abused its 

discretion or committed an error of law. Id. (citation omitted).

On February 28, 2017, Appellant filed a counseled praecipe to proceed 

in forma pauperis pursuant to Pa.R.C.P. 240(d), and counsel certified that he 

was providing free legal services as Appellant was unable to pay. The 

____________________________________________

4 Appellant, however, remains liable for amounts due and owing on her child 

support obligations, and nothing in this opinion precludes the trial court from 

utilizing legal enforcement measures to insure payments are made on those 

obligations.
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Prothonotary did not confer in forma pauperis status; rather, on March 8, 

2017, the trial court denied Appellant’s praecipe because “[Appellant] would 

not have incurred certain costs if she had made regular support payments as 

ordered.” Order, 3/8/17. 

Appellant filed a second praecipe to proceed in forma pauperis on 

March 16, 2017. On March 21, 2017, the trial court denied the praecipe and 

directed Appellant to complete and submit another praecipe to proceed in 

forma pauperis. Order, 3/21/17. 

On March 28, 2017, Appellant filed an affidavit in conformance with 

Pa.R.C.P. 240 claiming that she was unable to pay the fees and costs 

necessary to obtain counsel. This affidavit contained a statement of assets 

and liabilities, and it included a paystub from her employer revealing a weekly 

income of $21.37, and a year-to-date income as of March 23, 2017, of 

$938.59. On April 11, 2017, Appellant filed a motion for an extension of time 

in which to file her Pa.R.A.P. 1925(b) statement. In this motion, Appellant 

also averred the trial court denied her praecipe to proceed in forma pauperis

despite her lack of income and resources. Motion, 4/11/17, at ¶¶ 4-15.

On April 26, 2017, the trial court filed an order which stated as follows:

AND NOW, April 26, 2017, [Appellant] has filed a Praecipe 

to Proceed In Forma Pauperis and an application and affidavit. She 

has also filed a Motion to Extend Time [to file a concise statement 

of] Errors Complained of on Appeal, which the court has granted. 

In the Motion to Extend Time, [Appellant] states she is seeking in 

forma pauperis status in order to obtain copies of the record.
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Therefore, it is ORDERED that [Appellant] shall proceed in 

forma pauperis for the sole purpose of obtaining copies of the 

record in this case.

The Statement of Matters Complained of shall now be filed 

by [Appellant] within fourteen (14) days of the entry of this order.

Order, 4/26/17.

Our Rules of Civil Procedure provide, in relevant part, as follows:

(d)(1) If the party is represented by an attorney, the prothonotary 

shall allow the party to proceed in forma pauperis upon the filing 

of a praecipe which contains a certification by the attorney that he 

or she is providing free legal service to the party and believes the 

party is unable to pay the costs.

Pa.R.C.P. 240(d)(1). 

As noted above, counsel for Appellant certified that he was providing 

free legal services because Appellant was unable to pay, and Appellant filed 

an affidavit providing her income and lack of financial wherewithal. The trial 

court granted Appellant’s praecipe only to the extent that it provided her with 

copies of the record. However, Appellant’s requests for in forma pauperis

status were never limited to the provision of copies. Praecipe, 2/28/17; 

Praecipe, 3/16/17. The trial court’s conclusion in its March 8, 2017 order, 

wherein it stated that because the costs incurred were due solely to 

Appellant’s failure to make payments, was an abuse of discretion because the 

trial court did not hold a hearing or make any findings. Moreover, the trial 

court’s subsequent orders denying in forma pauperis status failed to provide 

any rationale, and these denials were ordered without a hearing to determine 

the veracity of Appellant’s assertion concerning her inability to pay or 
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counsel’s statement that he was providing representation without 

compensation. Accordingly, we vacate the trial court’s order denying in forma 

pauperis status, and remand for the Prothonotary of Clarion County to grant 

Appellant in forma pauperis status based on counsel’s averments and 

Appellant’s affidavit. 

For the reasons set forth above, we reverse the February 15, 2017 order

incorporating the agreement and imposing an indefinitely suspended 

sentence, and we vacate the orders denying Appellant in forma pauperis

status.

February 15, 2017 order reversed. March 8, 2017, March 21, 2017, and 

April 26, 2017 orders denying Appellant in forma pauperis status vacated. 

Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8/2018