PRESENT: All the Justices 

JOSEPH G. PETROSINELLI 

 OPINION BY 

v. Record No. 061785 JUSTICE G. STEVEN AGEE 

 April 20, 2007 

PEOPLE FOR THE ETHICAL TREATMENT OF 

ANIMALS, INC. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

David T. Stitt, Judge 

In this appeal, we consider the judgment of the Circuit 

Court of Fairfax County which found Joseph G. Petrosinelli in 

civil contempt and awarded monetary sanctions against him. For 

the reasons set forth below, we will reverse the judgment of the 

circuit court. 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW 

 This appeal arises from litigation in two similar lawsuits 

brought by the People for the Ethical Treatment of Animals, Inc. 

(“PETA”). PETA initially filed a motion for judgment on May 30, 

2002 against Kenneth Feld, Richard Froemming, Joel Kaplan, 

Charles Smith and three “John Doe” defendants, alleging 

statutory and common law conspiracy and misappropriation of 

trade secrets (“PETA I”). In response to Feld’s demurrer, he 

was nonsuited on July 25, 2003.1

 1

 By the time of the nonsuit as to Feld, PETA I had 

materially changed because Froemming had died, Kaplan proceeded 

pro se, and Smith asserted any claims against him had been 

discharged in bankruptcy. 
2

PETA filed a second motion for judgment on January 26, 

2004, naming Feld and three “John Doe” parties as defendants, 

alleging that Feld, CEO of Feld Entertainment, Inc., parent 

company of Ringling Brothers and Barnum & Bailey Circus, Inc., 

conspired and wrongfully took trade secrets and documents from 

PETA in an effort to thwart PETA’s animal protection work (“PETA 

II”). Throughout PETA II, Feld was represented by several 

attorneys, including Petrosinelli. 

On February 27, 2004, Feld moved to consolidate PETA I and 

PETA II for trial and discovery, which motion the circuit court 

denied.2

 In September 2004, Feld again moved to consolidate PETA 

I and PETA II, which the circuit court took under advisement.3

On December 2, 2004, PETA issued a subpoena to depose 

Steven Kendall, a resident of Pennsylvania, in PETA I.4

 Kendall 

failed to appear at the scheduled deposition, but he made a 

written agreement with PETA to appear in Alexandria, Virginia at 

the office of PETA’s counsel on February 11, 2005 at 10:00am for 

a deposition in PETA I. 

 2

 An order entered on April 16, 2004 by Judge Gaylord L. 

Finch, Jr. provided “the motion to consolidate the matter for 

trial and discovery is denied.” 

3

 Judge Dennis J. Smith issued an order on September 24, 

2004, which provided that Feld’s “Renewed Motion to Consolidate 

is taken under advisement.” 

4

 Steven Kendall was allegedly an undercover operative 

working on behalf of Feld Entertainment to infiltrate PETA and 

similar organizations. Kendall authored a book that contained 

potentially damaging information about Feld and Feld 

Entertainment, Inc.
3

On December 9, 2004, at a hearing in response to Feld’s 

renewed motion to consolidate which had been taken under 

advisement, the circuit court entered an order consolidating 

PETA I and PETA II for purposes of trial, but not for discovery.5 

During the December 9, 2004 hearing, Petrosinelli orally 

requested that although discovery would not be consolidated, the 

parties should be notified when discovery was occurring in 

either PETA I or PETA II, even though Feld was no longer a party 

in PETA I. The circuit court denied Petrosinelli’s request but 

invited the parties to revisit the issue, stating that they “are 

welcome to raise these issues again, because I’ll be a lot 

deeper into the discovery.” 

On December 29, 2004, Feld filed a motion for permission to 

access discovery in PETA I, which PETA opposed. At a January 

21, 2005 hearing on the motion, Petrosinelli reiterated his 

request on behalf of Feld to have access to discovery in PETA I. 

The circuit court reaffirmed that PETA I and PETA II would be 

joined for trial but separated for purposes of discovery, 

stating 

this really is about the third iteration of a very 

similar motion, and that doesn’t even include the 

hearing before Judge Smith where he took the matter 

under advisement. . . . 

 5 Judge David T. Stitt issued the December 9, 2004 order and 

all subsequent orders in this case.
4

I exercise my discretion by again refusing . . . 

to join [the two cases] for discovery, and the motion 

for access to discovery . . . is denied.6

On February 3, 2005, Feld issued a subpoena in PETA II to 

depose Steven Kendall, requesting that he appear at the office 

of Blankingship & Keith, P.C. in Fairfax, Virginia on February 

11, 2005 at 10:00am. The subpoena was signed by William B. 

Porter, another attorney representing Feld, but at 

Petrosinelli’s direction and with his knowledge of the PETA 

deposition of Kendall already scheduled in PETA I for the same 

date and time, at the office of PETA’s counsel in Alexandria. 

Kendall’s attorney responded on February 8, 2005 by sending 

letters to PETA and Feld indicating that Kendall would make 

himself available for a single deposition.7

 PETA responded the 

next day by letter to Kendall’s attorney accusing Feld and 

Kendall of “engaging in a conspiracy to obstruct justice” 

because of the deposition scheduling. 

PETA immediately moved in the circuit court to quash Feld’s 

subpoena of Kendall in PETA II. On February 9, 2005, the 

circuit court conducted an emergency hearing by telephone 

 6

 The circuit court issued an order on January 24, 2005, 

which stated that Feld’s “Motion for Access is DENIED for the 

reasons stated from the bench.” 

7

 Identical letters were sent to Feld and PETA, which 

stated: “Inasmuch as the subject matter of both depositions will 

be the same, we will be available to sit for one deposition and 

will submit to questions posed by you and [opposing counsel]” 

(emphasis in original). 
5

conference call on PETA’s motion. The circuit court quashed 

Feld’s subpoena of Kendall in PETA II and instructed that the 

PETA deposition of Kendall in PETA I continue as scheduled. 

PETA drafted an order to reflect the circuit court’s 

ruling, but Feld objected to some of the proposed language. 

Specifically, Feld objected to language in the proposed order 

stating Feld’s subpoena of Kendall was “a circumvention of prior 

rulings in this case” and that the “previously noticed 

deposition [on PETA I] shall proceed.” When the parties did not 

reach agreement, PETA forwarded the proposed order as drafted to 

the circuit court along with the comments submitted by Feld. On 

February 15, 2005, the circuit court entered the order as 

originally drafted by PETA, including the language to which Feld 

objected. 

On February 18, 2005 PETA filed an ex parte petition for a 

rule to show cause in PETA II as to why Porter and Petrosinelli 

should not be held in contempt for violating the circuit court’s 

order of January 24, 2005 and similar orders dated April 16, 

2004 and December 9, 2004. The petition for the rule to show 

cause included an affidavit from PETA’s counsel, Philip J. 

Hirschkop, detailing how Porter and Petrosinelli allegedly 

violated the referenced orders. 

On March 14, 2005, the circuit court issued a rule to show 

cause in PETA II stating “that an order of this Court was 
6

apparently violated.” The rule directed Porter and Petrosinelli 

to “show cause why they should not be held in contempt for 

violating this Court’s orders of January 21, 2005, April 16, 

2004 and December 9, 2004.”8 On April 8, 2005, Feld filed a 

motion to vacate the rule to show cause, or, in the alternative, 

a response to the rule, with affidavits from Petrosinelli and 

Porter attached. 

On May 25, 2005, the circuit court conducted a hearing on 

the rule to show cause and Feld’s motion to vacate the rule to 

show cause.9 Judge Stitt held Petrosinelli in contempt under the 

rule to show cause for issuing the Kendall subpoena. Although 

Judge Stitt discussed the April 16, 2004 and December 9, 2004 

orders, he made specific reference to the January 24, 2005 order 

and stated: 

That is a clear order denying access to discovery 

and what was done with this subpoena to Kendall was 

precisely an attempt to access discovery in [PETA I]. 

There’s no other way to fairly characterize it. 

That’s what it was, just a blatant violation of that 

order. 

 8

 Although the rule to show cause recites an order dated 

January 21, 2005, the actual order was signed on January 24, 

2005, which memorialized the court’s ruling at the January 21, 

2005 hearing denying Feld’s motion for access to discovery. See 

also supra note 6. 

9

 The circuit court also considered other motions, but those 

motions are the subject of a separate appeal brought by Feld in 

Williams & Connolly, LLP v. People for the Ethical Treatment of 

Animals, 273 Va. ___, ___ S.E.2d ___ (2007), which is also 

decided this day. 
7

And I do find there was contempt pursuant to 

Virginia Code Section 18.2-456(5).10 This was 

disobedience by an officer of the court of an order of 

the court. 

The rule to show cause against Porter was dismissed.11

On August 18, 2005, the circuit court conducted a further 

hearing and reaffirmed its May 25, 2005 ruling from the bench 

holding Petrosinelli in contempt,12 and ordered him to pay 

sanctions of $11,305.00 to PETA, all of which were memorialized 

in an August 26, 2005 order. 

Petrosinelli filed a notice of appeal with the Court of 

Appeals pursuant to Code § 19.2-318 regarding the civil contempt 

sanction. We certified Petrosinelli’s appeal in the Court of 

Appeals for review pursuant to Code § 17.1-409(A) and (B). 

 10 Code § 18.2-456(5) provides that “The courts and judges 

may issue attachments for contempt, and punish them summarily 

[for] [d]isobedience or resistance of an officer of the court, 

juror, witness or other person to any lawful process, judgment, 

decree or order of the court.” 

11 Petrosinelli admitted that he asked Porter to issue the 

Kendall subpoena. The court noted that Porter was “a young 

attorney, a former law clerk to this court, [and] he’s obviously 

not calling the shots in this case, and I appreciate Mr. 

Petrosinelli taking the responsibility for having told him to 

issue the subpoena.” Petrosinelli responded to the circuit 

court’s ruling with a motion for reconsideration of the finding 

of contempt, but the circuit court denied the motion.

12 Judge Stitt confirmed at the August 18, 2005 hearing that 

the contempt proceeding against Petrosinelli was civil contempt: 

“if I were going to proceed with criminal sanctions . . . I 

would let everybody know and refer the matter to the 

Commonwealth’s Attorney. I obviously haven’t done that and so I 

don’t think there’s any question that we’re only proceeding on 

civil sanctions at this point.” 
8

II. ANALYSIS 

 A court has discretion in the exercise of its contempt 

power. Sapp v. Commonwealth, 263 Va. 415, 425, 559 S.E.2d 645, 

650 (2002); see also Leisge v. Leisge, 224 Va. 303, 309-10, 296 

S.E.2d 538, 541 (1982). It “is within the discretion of the 

trial court” to conduct civil contempt proceedings, Arvin, Inc. 

v. Sony Corp. of America, 215 Va. 704, 706, 213 S.E.2d 753, 755 

(1975), thus we review the exercise of a court’s contempt power 

under an abuse of discretion standard. Tonti v. Akbari, 262 Va. 

681, 687, 553 S.E.2d 769, 772 (2001). 

Because the “judicial contempt power is a potent weapon,” 

Int’l Longshoremen’s Ass’n, Local 1291 v. Philadelphia Marine 

Trade Ass’n, 389 U.S. 64, 76 (1967), our centuries-old 

jurisprudence has long provided that “contempt lies for 

disobedience of what is decreed, not for what may be decreed.” 

Taliaferro v. Horde, 22 Va. (1 Rand.) 242, 247 (1822). 

Additionally, “before a person may be held in contempt for 

violating a court order, the order must be in definite terms as 

to the duties thereby imposed upon him and the command must be 

expressed rather than implied.” Winn v. Winn, 218 Va. 8, 10, 

235 S.E.2d 307, 309 (1977). Thus, “there must be an express 

command or prohibition” which has been violated in order for a 

proceeding in contempt to lie. French v. Pobst, 203 Va. 704, 

710, 127 S.E.2d 137, 141 (1962). 
9

 The March 14, 2005 rule to show cause stated that 

Petrosinelli “apparently violated” the circuit court’s prior 

orders of January 24, 2005, April 16, 2004 and December 9, 2004 

(the “three orders”) by issuing the Kendall subpoena. The 

August 26, 2005 order finding contempt simply stated, “Joseph G. 

Petrosinelli is adjudged in contempt” but did not identify which 

order or orders were found to be the source of the contempt. 

 At the May 25, 2005 hearing on the rule to show cause, the 

circuit court discussed the three orders but emphasized the 

January 24, 2005 order as a particular order Petrosinelli 

violated because that order was “a clear order denying access to 

discovery and what was done with this subpoena to Kendall was 

precisely an attempt to access discovery in [PETA I]. . . . 

That’s what it was, just a blatant violation of that order.” 

The court then concluded “that there was contempt pursuant to 

Virginia Code Section 18.2-456(5).” We therefore review the 

language of the three orders to determine whether the circuit 

court abused its discretion in adjudging Petrosinelli in 

contempt. 

 Each of the three orders is short, with the pertinent 

adjudication of the court stated in one sentence. The January 

24, 2005 order provides only that Feld’s “Motion to Access is 

DENIED for the reasons stated from the bench.” The April 16, 

2004 order states only that Feld’s “Motion to consolidate the 
10

matter for trial and discovery is denied.” The December 9, 2004 

order states only that “Feld’s Motion to Consolidate is granted 

as to trial, but denied as to discovery.” 

 Petrosinelli contends, as he did in the circuit court, that 

he did not violate any of the three orders. Petrosinelli argues 

that no order of the court barred a subpoena to depose Kendall 

in PETA II. Because Kendall was a Pennsylvania resident, 

Petrosinelli avers that the distinct possibility existed in 

which Feld would be unable to depose Kendall at all if he failed 

to act when he did. By issuing the subpoena in PETA II, 

Petrosinelli argues he was attempting in good faith to follow 

the court’s orders while also preserving Feld’s right to take 

the deposition of a key witness. As Kendall would agree to sit 

for only one deposition, Petrosinelli contends Feld faced the 

likely result that a Pennsylvania court would protect Kendall 

from multiple depositions on essentially the same subject matter 

as represented by PETA I and PETA II. If that occurred, 

Petrosinelli argues, PETA would have the benefit of Kendall’s 

deposition in PETA I to use in PETA II, but Feld would have been 

foreclosed from that information. 

Petrosinelli also contends that the circuit court 

inappropriately relied on a mere implication that he could not 

depose Kendall as its basis for holding him in contempt. 

Petrosinelli insists that by issuing a separate subpoena 
11

deposition to Kendall, he was in compliance with the circuit 

court’s ruling that discovery be separate between PETA I and 

PETA II. 

 In response, PETA asserts that Petrosinelli was found in 

contempt because he “engineer[ed]” a consolidated deposition 

with Kendall for PETA I and PETA II in direct violation of the 

three orders. PETA insists that it is crucial to consider the 

context of the circuit court’s third denial of consolidated 

discovery in the January 24, 2005 order, when examining whether 

Petrosinelli acted contemptuously. PETA avers that the three 

orders provided Petrosinelli with explicit notice of what was 

required of him, yet Petrosinelli willfully defied the orders 

and effectively attempted to consolidate discovery. Because the 

circuit court’s January 24, 2005 order included language that 

the court had denied consolidated discovery “for the reasons 

stated from the bench,” PETA contends this provided Petrosinelli 

with sufficient notice of what was required. Finally, PETA 

argues that even if Petrosinelli did not violate explicit orders 

of the circuit court, his “egregious misbehavior in obstructing 

the administration of justice by causing the Kendall deposition 

subpoena to be issued” at the same date and time but at a 

different location as the deposition for PETA I, constitutes 

contempt. 
12

 We agree with Petrosinelli. In reviewing the three orders, 

we do not find an express prohibition on the issuance of a 

subpoena to Kendall by Feld or any other party. The three 

orders did not expressly command or prohibit Petrosinelli from 

acting to depose a witness, and Petrosinelli issued the subpoena 

only in PETA II. The text of the three orders is devoid of any 

prohibition regarding the issuance of a subpoena to Kendall or 

any other person. 

A court generally speaks through its written orders. 

McMillion v. Dryvit Sys., 262 Va. 463, 469, 552 S.E.2d 364, 367 

(2001). We presume that the written orders accurately reflect 

what transpired during the court’s proceedings. Waterfront 

Marine Constr. v. North End 49ers Sandbridge Bulkhead Groups, 

251 Va. 417, 427 n.2, 468 S.E.2d 894, 900 n.2 (1996). While a 

court’s contempt power encompasses written orders as well as 

“oral orders, commands and directions of the court,” Robertson 

v. Commonwealth, 181 Va. 520, 537, 25 S.E.2d 352, 359 (1943), a 

duty that arises by implication cannot sustain a finding of 

contempt. See, e.g., Winn, 218 Va. at 10-11, 235 S.E.2d at 309. 

If there was any prohibition upon Petrosinelli against 

subpoenaing Kendall for a deposition in PETA II, such a duty 

was, at best, an implication from general remarks of the court 

made in prior hearings. Petrosinelli was never explicitly 

prohibited by a court order from issuing the Kendall subpoena. 
13

Mere implication of a duty cannot form the basis of a contempt 

judgment. Id. 

Rather, the three orders, each of which denied joint 

discovery in PETA I and PETA II, “merely declare[d] the rights 

of the parties without an express command or prohibition.” 

French, 203 Va. at 710, 127 S.E.2d at 141. As we stated in 

French, “there must be an express command or prohibition” to 

support a finding of contempt. Id. No such express command or 

prohibition exists that prohibited Petrosinelli from issuing the 

subpoena to Kendall. 

Thus, after a review of the three orders, we hold that the 

circuit court abused its discretion when it adjudged 

Petrosinelli in contempt of court. Petrosinelli’s subpoena to 

Kendall in PETA II was not a violation of any express order of 

the court and thus could not be an act of contempt as a matter 

of law. 

III. CONCLUSION 

For the foregoing reasons, we will therefore reverse the 

judgment of the circuit court, which adjudged Petrosinelli in 

contempt, and we will vacate the award of sanctions against 

Petrosinelli individually in the amount of $11,305.00 and enter 

final judgment in favor of Petrosinelli. 

Reversed and final judgment.