J-A25018-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.J.K.

 Appellee

v.

M.D.C. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3321 EDA 2017

Appeal from the Judgment of Sentence September 5, 2017

In the Court of Common Pleas of Delaware County Civil Division at 

No(s): CV-2015-080484

BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.

MEMORANDUM BY PANELLA, J.: FILED MAY 23, 2019

M.D.C. (“Mother”) appeals from the judgment of sentence entered after 

the trial court found her guilty of indirect criminal contempt of a Protection 

from Abuse (“PFA”) order in this highly contentious custody and visitation 

dispute. Mother asserts the order did not clearly give her notice that she was 

prohibited from entering the church where T.J.K. (“Father”) and their children 

(“the Children”) were participating in an evening mass. She also argues the 

evidence was insufficient to establish she acted with wrongful intent. We 

affirm. 

This is the second of three inter-related companion appeals with a long, 

complex, and somewhat convoluted history. We derive the facts and 

procedural history of this case primarily from the trial court’s opinion. Mother, 

Father, and Mother’s parents (“Grandparents”) have been involved in some 
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form of custody or visitation disputes over Mother and Father’s two minor 

children (“Children”) since at least 2011. 

Father is a citizen of the United States. Mother is a native of Argentina.1 

Grandparents are also from Argentina. The marriage of Appellee T.J.K. and 

Mother resulted in two Children, M.A.K. (born in 2009) and T.M.K. (born in 

2010). At various times, Mother and Father lived in Argentina, in or near 

Buenos Aires, and Delaware County, Pennsylvania. For a time, Grandparents 

lived with Father, Mother, and the Children. 

Father has been granted primary physical custody of the Children in 

Pennsylvania on an emergency basis. Pertinent to the background of this 

appeal, Father filed for a Protection from Abuse order (“PFA”), alleging, inter 

alia, that Mother and the Grandparents were violent toward the Children. 

Father testified that he confronted Mother about such violence toward 

their daughter in Colorado. In response, Father asserted, Mother attacked 

him, banging his head against a wall, kicking him repeatedly in the testicles, 

biting his hand, trying to scratch his eyes, and choking him, in the presence 

of the Children. A Colorado jury eventually convicted Mother of assault and 

harassment. 

____________________________________________

1 While Father only mentions Mother’s Argentinian citizenship, he does not 

dispute Mother’s claim to dual United States and Argentinian citizenship.
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Notably, Mother was also charged, but eventually acquitted, of child 

abuse under Colorado law for attacking Father in the presence of the Children. 

While the criminal charges in Colorado were pending, the Colorado court 

prohibited Mother from having contact the Children due to the pending child 

abuse charge. The Colorado order explicitly provided for the court with 

jurisdiction over custody claims, the Court of Common Pleas of Delaware 

County, to modify the no-contact order.

Father has further accused Mother and Grandparents of plotting by 

various means, such as trying to obtain duplicate Argentinian passports, to 

remove the Children from the United States and return them to Argentina to 

live with Mother. After Father sought a PFA order, the parties negotiated,

through counsel, a stipulation that the trial court incorporated in an order. 

Pertinent to the issues on appeal, Mother’s visitation with Children was

restricted to one hour, twice a week, held in the “gathering room” of the 

Children’s local church in Media, PA.

2 The order required the presence of a 

security guard, and a Spanish/English translator during Mother’s visitation.

____________________________________________

2 The address of the church was one of several specified locations that Mother 

agreed to stay away from as a condition of the PFA order. Mother highlights 

the discrepancy that she was, and was not, allowed on the church premises. 

However, the two provisions of the stipulated order are easily reconciled. See 

Nitardy v. Chabot, 195 A.3d 941, 952 (Pa. Super. 2018) (observing that it 

“is well settled that when interpreting a contract, the specific controls over the 

general”). Mother was specifically allowed in the gathering room for the 

visitation periods, but was generally banned from entering the church 

premises otherwise. S Saint Mary Magdalen Parish is a Roman Catholic community of 

faith seeking to live the.
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Further, Mother was to have no contact with the Children before or after the 

actual visitation period. She was to leave the church premises immediately 

after the visitation was over. 

The parties are in substantial agreement on most of the specific facts 

underlying the conviction for contempt. However, they disagree on the 

inferences to be drawn from those facts and the law to be applied. 

Briefly summarized, on the evening of June 5, 2017, the pastor of the 

Children’s church had invited Father to a “healing Mass” in the parish chapel 

at 7:00 PM, after the Children’s visitation hour with Mother was over.3 Father 

accepted the invitation, and brought the Children with him to the Mass. The 

gathering room was adjacent to the chapel. 

After the service had begun, Mother appeared outside the chapel. Both 

the security guard and the translator warned Mother that, under the visitation 

order and the PFA order, she was not permitted inside the chapel. The guard 

and translator gave the warnings in both English and Spanish. Mother entered 

the chapel despite these warnings. The security guard summoned the police. 

____________________________________________

3 The healing Mass was for an infant with cancer, unrelated to the parties in 

this appeal. Mother notes that recollections differed slightly as to whether the 

pastor invited Father to the Mass, or Father inquired and was invited in 

response. However, the exact details of the invitation are not material to any 

issues on appeal or arguments presented for our review.
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Mother was arrested and the district attorney brought an action for 

indirect criminal contempt. Mother was convicted and sentenced to time 

served, thirty-seven days.4 Concerning the time Mother spent in jail, it bears 

noting that Mother was originally considered not eligible for bail because of 

the pending criminal charges in Colorado. Eventually, however, she was 

equipped with a monitor and placed on house arrest. This timely appeal 

followed.5 

Mother presents two questions on appeal for our review:

1. Where a protection from abuse order allowed contact between 

[F]ather and [M]other on church property during visitation, and 

did not address [F]ather keeping the [C]hildren at the church 

beyond the stipulated visit time, did a reasonable construction of 

the order allow [M]other to enter the chapel where her [C]hildren 

were at mass?

2. Where [M]other was allowed to be at the church and she 

entered a chapel where [F]ather had taken her [C]hildren to mass, 

was her entry sufficient to support her conviction of criminal 

contempt?

____________________________________________

4 The trial court also imposed a fine of $300.00 and extended the PFA order 

to December 31, 2018. Without further extension, that deadline would have 

expired by now. Nevertheless, we find that Mother’s challenges to her 

conviction for criminal contempt fall within a recognized exception to the 

mootness doctrine, because there is a reasonable possibility Mother’s 

conviction will result in criminal or civil collateral consequences. See 

Commonwealth v. Rohde, 402 A.2d 1025, 1026 (Pa. 1979). 

5 Mother filed an eight point concise statement of errors on or about October 

25, 2017. Several of Mother’s asserted errors were repetitive or over-lapped. 

The trial court condensed Mother’s statement of errors into four issues, 

addressed them, and filed an opinion, on December 5, 2017. See Pa.R.A.P. 

1925. 
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Mother’s Brief, at 2. In her reply brief, Mother seeks to add a third argument: 

that “deeming [Father] the prosecutor has structurally denied due process.” 

Mother’s Reply Brief, at i. Mother cannot raise a new issue in her reply brief. 

See Commonwealth v. Fahy, 737 A.2d 214, 218 n.8 (Pa. 1999). Therefore, 

we will not address mother’s argument that she was structurally denied due 

process.

Our standard of review is well-settled. 

We review a contempt conviction for an abuse of discretion. We 

rely on the discretion of the trial court judge and are confined to 

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

decision. In reviewing whether the evidence was sufficient to 

support the conviction, “we must determine whether the evidence 

admitted at trial, and all reasonable inferences drawn from that 

evidence, when viewed in the light most favorable to the 

Commonwealth as verdict winner, was sufficient to enable the fact 

finder to conclude that the Commonwealth established all of the 

elements of the offense beyond a reasonable doubt.” In applying 

the above test, we may not weigh the evidence and substitute our 

judgment for the fact-finder. Finally, the trier of fact while passing 

upon the credibility of witnesses and the weight of the evidence 

produced, is free to believe all, part or none of the evidence. 

This Court has repeatedly stated that the purpose of the PFA Act 

is to protect victims of domestic violence from those who 

perpetrate such abuse, with the primary goal of advance 

prevention of physical and sexual abuse. Where a PFA order is 

involved, an indirect criminal contempt charge is designed to seek 

punishment for violation of the protective order. A charge of 

indirect criminal contempt consists of a claim that a violation of 

an order occurred outside the presence of the court. 

In order to establish indirect criminal contempt, the 

Commonwealth must prove: 1) the order was sufficiently definite, 

clear, and specific to the contemnor as to leave no doubt of the 

conduct prohibited; 2) the contemnor had notice of the order; 3) 

the act constituting the violation must have been volitional; and 

4) the contemnor must have acted with wrongful intent.
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Commonwealth v. Felder, 176 A.3d 331, 333–34 (Pa. Super. 2017)

(brackets, quotation marks, and citations omitted).

In her first issue on appeal, Mother argues the PFA order did not provide 

sufficient notice of what would constitute a violation of the order. Mother 

contends that it was not clear that she was prohibited from entering the church 

after her visitation hour had ended. She cites to Father’s admission that his 

attendance at the 7:00 p.m. mass was unusual as evidence that she could no 

know that her entry at that time would constitute a violation of the PFA order. 

After reviewing the record and the briefs of the parties, we conclude the 

written opinion authored by the Honorable Dominic F. Pileggi thoroughly and 

adequately addresses Mother’s argument. See Trial Court Opinion, 12/15/17, 

at 8-12 (finding that Mother was sufficiently conversant in English to 

understand the terms of the PFA; that her conduct for one and a half years 

after the entry of the PFA order demonstrated she understood the order’s 

requirements; and that the security guard and translator effectively 

communicated to Mother that entering the church at that time would 

constitute a violation of the PFA). We therefore adopt the opinion as our own 

and affirm on that basis.

In her second issue, Mother argues the evidence was insufficient to 

sustain her conviction for indirect criminal contempt because Father had no 

reason to fear for his safety in the presence of the armed security guard. See 

id. She contends she reasonably expected the PFA order was relaxed under 
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circumstances where Father was protected by the security guard, citing 

Commonwealth v. Haigh, 874 A.2d 1174 (Pa. Super. 2005).

In Haigh, this Court reversed a conviction for indirect criminal contempt 

of a PFA order. Under the PFA order in that case, the defendant was prohibited 

from having contact with his wife “at any location.” See id., at 1177. The trial 

court found that the defendant, bound and shackled, had violated the PFA 

when he addressed his wife during the PFA violation hearing. See id. 

This Court reversed, concluding that the defendant “did not act with 

wrongful intent by engaging in this conversation with his wife in the 

courtroom.” Id. (footnote omitted). “Intentionally acting in such a manner, in 

the presence of [the trial court], the deputy sheriff, the prosecutor and every 

other person gathered in the court room, would have been nothing short of 

irrational[.]” Id. “A reasonable person could have believed, and Appellant did 

believe, that the PFA order was relaxed to some extent in the courtroom 

context, especially where Appellant was shackled and the victim was protected 

by an armed deputy sheriff.” Id.

Like in Haigh, Mother was prohibited from “any contact with” Husband 

or the Children “at any location.” In addition, Mother correctly notes the 

presence of the armed security guard is analogous to the presence of an 

armed deputy sheriff in Haigh. 

However, we find Haigh easily distinguishable. This was not a situation 

where contact with the victim was compelled by the dictates of due process, 
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as it was in Haigh. Nor was Mother shackled when she forced her way back 

into the church despite the protests of the security guard and the translator. 

It was perfectly reasonable for the trial court to find that Mother acted with 

wrongful intent when she re-entered the church. See Trial Court Opinion, 

12/15/17, at 13 (finding that Mother knew she was violating the PFA order 

when she re-entered church despite the warnings of the guard and the 

translator).

As neither of Mother’s issues on appeal merit relief, we affirm the 

judgment of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/19
R.c.lved 1 VZ3!2017 8:30:32 PM Circulated 04/30/2019 03:48 PM Svpel'ior Coutt Eastern District 

F;led 12123/2017 aaaco PM Suporio, coun_i;ast01n DoMct 

3321 EDA 2017 

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA 

CIVIL ACTION· LAW 

THOMAS JOHN KARL 

Plaintiff/ Appellee 

vs. 

MARINA DOMINGUEZ-CIFUENTES 

Defendant/ Appellant 

DOCKET NO. 2015-080484 

MD NO: 27-17 

i Superior Court No.: 3321 EDA 2017 

IN PROTECTION FROM ABUSE 

Dione Horn, Esquire, Attorney for Plaintiff/Appellee 

Office of the District Attorney, 201 West Front Street, Media, PA 19063 

Joseph Rizzo, Esquire, Attorrn,y for Defendant/ Appellant 

The Podovo Firm, P.C., 640 Shadeland Avenue, Drexel Hill, PA 19026 

OPINION 

PILEGGI, J. DATE: December 5, 2017 

This Appeal is considered a direct appeal from this Court's September 5, 

2017 Final Order of Court. Appellant is Defendant, Marina Dominguez-Cifventes 

("Wife"). Appellee is Plaintiff, Thomas John Karl ("Husband"). Wife seeks review of 

this Court's September 5, 2017 Final Order of Court, which found Wife guilty of 

Indirect Criminal Contempt, in connection with Wlfe's violation of the Stipulation 

Under Protection from Abuse Act Aocl Uniform Prevention of Child Abduction Act, 

{"the Stipulated PFA Order") which wos entered os an Order of Court by the 

Honorable Linda A. Cartisano on November 6, 2015, pursuant to on agreement of 

the parties executed on October 23, 2015. On appeal, Appellant raises the 

following issues, 

1. Did this Court err in conc.luding that the St4tufgnon Under Protection from 

Abuse Act And Uniform Prevention ·of O)ild Abduction Ag was definite, 

clear and specific, the terms of which were understood by Wife, and that 

Wife's actions which constituted the violation of the Order were volitional, 
Karl v. Dominguez-Cifuentes 

2015-080484 

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12/5/2017 

Page 2 of 22 

that Wife acted with wrongful intent, and that Wife's failure to comply with 

the order was willful or at least reckless? 

2. Did this Court err in concluding that the Stipulation Under Protection from 

Abuse Act And Uniform Prevention of Child Abduction Act was a valid 

protection from abuse order pursuant to 23 Pa. CS. § 6102 et seq. even 

though it was not in the exact form prescribed by Pa. R.CP. No. l 905(e)? 

3. Did this Court err in finding the testimony of Husband and Husband's 

witnesses credible? 

4. Did this Court err in finding Wife guilty of indirect criminal contempt instead 

of indirect civil contempt when the violation was de minimis? 

PROCEDURAL HISTORY 

On April 14, 2015, Plaintiff/ Appellee Thomas Karl ("Husband") filed a 

Petition for Protection from Abuse against Defendant/ Appellant Marina 

Dominquez-Cifuentes ("Wife") in the Court of Common Pleas of Delaware County. 

Husband's Petition requested an order for protection on behalf of himself and the 

parties' two (2) children, Maximino Alan Karl and Triana Marina Karl ("the 

children"). On April 14, 2015, the Honorable Barry C. Dozor issued a Temporary 

Protection from Abuse Order which granted an order for protection on behalf of 

Husband and the children, and listed the matter for a hearing for further 

adjudication with respect to Husband's request for a Final Protection from Abuse 

Order. 

On October 23, 2015, in resolution of Husband's Petition for Protection from 

Abuse, the parties entered into a Stipulation Under Protection from Abuse Act And 
Karl v. Dominguez-Cifuentes 

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Page 3 of 22 

Uniform Prevention of Child Abduction Act ("Stipulated PFA Order") which was 

entered as an Order of Court by the Honorable Linda A. Cartisano on November 6, 

2015. 

On June 7, 2017, the Commonwealth of Pennsylvania filed a Complaint for 

Indirect Criminal Contempt against Wife due to an alleged violation of the 

Stipulated PFA Order. On June 15, 2017 and September 5, 2017, this Court held 

hearings to adjudicate the merits of the Commonwealth's Complaint for Indirect 

Criminal, Contempt. On September 5, 2017, this Court entered an Order finding 

Wife guilty of Indirect Criminal Contempt and imposing a sentence of time served, 

a Three Hundred Dollar ($300.00) fine, and extension of the Stipulated PFA Order 

until December 31, 201 8. On September. 15, 2017, Wife filed a Motion to 

Reconsider the Verdict.

1 On September 27, 2017, this Court entered an Order 

which denied Wife's Motion to Reconsider the Verdict. On October 4, 2017, Wife 

filed a Notice of Appeal to Superior Court. On October 11, 2017, this Court issued 

an Order requesting a Statement of Errors Complained of on Appeal pursuant to 

Pa. R.A.P l 925(b). On October 25, 2017, Wife filed a Statement of Errors 

Complained of On Appeal. 

1 Wife's Motion to Reconsider the Verdict was not a Motion for a New Trial and did not request a new trial. Wife's Motion to 

Reconsider the Verdict did not contain any allegation that this Court erroneously found Husband's witnesses to be credible and 

did not make a weight of the evidence claim. This is relevant to Wife's claim in the instant appeal that this Court erred in finding 

Husband's witnesses credible. See Pa.R.Crim.P. 607; See also Commonwealth v. Walsh, 36 A.3d 613, 622 (Pa. Super. 2012). 
Karl v. Dominguez-Cifuentes 

2015-080484 

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12/5/2017 

Page 4 of 22 

FACTS 

Protection from Abuse Proceeding: On April 14, 2015, Husband filed a 

Petition for Protection from Abuse against Wife, on behalf of himself and the 

parties' children. See Exhibit C-1 at Page 2 1J 4. In resolution of Husband's Petition 

for Protection from Abuse, on October 23, 2015, Husband and Wife executed a 

Stipulation Under Protection From Abuse Act And Uniform Prevention of Child 

Abduction Act, which was entered as an Order, by the Honorable Linda A. 

Cartisano on November 6, 201 5 ("the Stipulated PFA Order"). Paragraph 7 of the 

Stipulated PFA Order contained the following provisions: 

7. For three (3) years from the date of this Court's Order issued 

pursuant to this Stipulation: 

a. [Wife] will stay away from [Husband] and the parties' 

children ... except for any visitation or custody with Children as 

ordered by the Court in existence entered prior to this date or 

hereafter. 

b. [Wife] shall not abuse, harass, stalk, or threaten [Husband] or 

any of the Children. 

c. [Wife] shall not contact [Husband] (except for emergency 

concerning the children and only by text or email} or any of the 

Children by any means directly or indirectly except as 

permitted by Court Order entered prior to this date or 

hereafter. 

d. [Wife] is prohibited from any contact with [Husband], the 

Children, or any other person protected under this agreement, 

either directly or indirectly, at any location, including but not 

limited to any contact at [Husband's] or other protected parties' 

residence, school, business, or place of employment. [Wife] is 
Karl v. Dominguez-Cifuentes 

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Page 5 of 22 

specifically ordered to stay from the following locations for the 

duration of this order: 

1. 56 Sleepy Hollow Drive, Newtown Square, Pennsylvania, 

until [Husband] vacates the residence. 

2. 2400 North Providence Road, Media, Pennsylvania. 

3. 21 l Commerce Court, Suite l 04, Pottstown, Pennsylvania 

Stipulation Under Protection From Abuse Act and Uniform Prevention of 

Child Abduction Act, at 1J 7; See also N. T. 6 /7 5 /7 7 at 6. 

Wife testified that she executed the Stipulated Pf A Order to resolve the 

ongoing PFA litigation and that she "thought the best way ... of resolving that issue 

was to sign that stipulation with no admission of guilt and to work things out on (sic) 

the custody court." N.T. 9/5/77at 36. 

Child Custody Proceeding: There is a child custody proceeding, docketed in 

the Delaware County Court of Common Pleas under case number 2015-0031 99. 

This child custody proceeding was initiated prior to the within Protection from Abuse 

matter, by the filing of an Emergency Petition· for Custody and Emergency Petition 

for Return of Passports, filed on April 9, 2015. On April 24, 2015, an Order on 

Emergency Petition for Custody

2 ("the Custody Order) was entered by the 

Honorable Linda A. Cartisano. Paragraphs one ( l) through four (4) of the Custody 

Order provided for an award of legal and physical custody rights as follows: 

2 Although subsequent orders of court have been entered in the custody matter, the April 24, 2015 Order on 

Emergency Petition for Custody provides for the physical custody schedule that was in effect on June 5, 2017, the 

date of the incident giving rise to the allegation of indirect criminal contempt, and as of June 15 and September 5, 

2017, the dates of trial on this indirect criminal contempt matter. 
Karl v. Dominguez-Cifuentes 

2015-080484 

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Page 6 of 22 

1. Primary physical custody of the minor children MAXIMINO ALAN 

KARL, born May 9, 2009, and TRIANA MARINA KARL, born 

September 3, 2010, is hereby awarded to [Husband] until further 

Order of Court. 

2. Joint legal custody with respect to medical care and decisions is 

awarded to [Husband] and [Wife]. 

3. Sole legal custody for all else awarded to [Husband] until further 

Order of this Court. 

4. Supervised partial physical custody of the minor 1. children, 

MAXIMINO ALAN KARL and TRIANA MARINA KARL is awarded 

to [Wife], as follows: two sessions a week for one hour each, 

supervised by security personnel who may carry concealed arms 

and observed by an independent Spanish/English speaker 

interpreter; the said sessions to be in a classroom at St. Mary 

Magdalene Church in Media, Pennsylvania Mondays at 5:30 p.m. 

to 6:30 p.m.

3 and Thursdays at 4: 15 p.m. to 5: 15 p.m.; costs to be 

borne by [Husband]; no other persons are to be present at the 

sessions; and [Wife's] parents, Olga Cifuentes, and Julio Cesar 

Domingues are not to be on the grounds of the church during these 

sessions. 

See 4/24/75 Order on Emergency Petition for Custody, at ,I 1-4. 

Plaintiff's Complaint for Indirect Criminal Contempt: Husband testified that on 

June 5, 2017, at approximately 7:00 p.m. he appeared at St. Mary Magdalene 

Church to retrieve the children from their scheduled supervised visit with Wife. 

Pursuant to an invitation from the church's pastor to attend a "healing mass" 

Husband and the children entered the chapel and sat in a pew approximately four 

(4) rows from the front. N.T. 6/75/77, at 17-20. Husband testified that, during the 

3 This visitation time was changed by agreement of the partlesto commence at 6:00 p.m. and conclude at 7:00 

p.m. See N. T. 6/15/17, at 11. 
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Page 7 of 22 

service, Wife appeared and entered into the chapel. According to Husband's 

testimony, upon seeing Wife, the children were frightened and physically grabbed 

Husband. Husband further testified that Wife looked at him, smiled, and made "a 

hand gesture." Id at 21-23. Husband testified that the sight of Wife outside the 

presence of security was a frightening experience for the children "because 

of ... multiple incidents, kidnappings, abuse that have occurred ... " Id. at 25-26. 

Husband's testimony with respect to Wife's entry into the chapel was 

corroborated by security officer Michael Balsamo and Dr. Jay Jemail ("Dr. Jay"). 

Michael Balsamo testified credibly that he approached Wife, before she entered 

the chapel, and with the assistance of Dr. Jay, a Spanish/English translator, 

informed Wife that she should not enter the chapel because Husband and the 

children were inside. Mr. Balsamo further instructed Wife that her entry into the 

chapel would constitute a violation of the Stipulated PFA Order. Id. at 82-90. 

According to the testimony of Dr. Jay, who was with Mr. Balsamo and translated 

Mr. Balsama's instructions to Wife in Spanish, Wife heard the instruction given by 

Mr. Balsamo in English, and translated by Dr. Jay in Spanish, immediately "did a 

l 80 degree turn," and walked into the chapel where she had been told Husband 

and the children were present. Id at 120-26 
Karl v. Dominguez-Cifuentes 

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Page 8 of 22 

Wife testified that she walked into the chapel not knowing that Husband and 

the children were inside. Wife further testified that she entered the chapel to 

escape harassment from Husband's "security team." N.T. 9/5/17, at 46-50. 

DISCUSSION 

Wife raises the following issues on appeal: 

1. Did this Court err in concluding that the Stipulation Under Protection from 

Abuse Ad And Uniform Prevention of Child Abduction Ad was definite, clear 

and specific, the terms of which were understood by Wife, and that Wife's 

actions which constituted the violation of the Order were volitional, that Wife 

acted with wrongful intent, and that Wife's failure to comply with the order 

was willful or at least reckless? 

Where a PFA order is involved, an indirect criminal contempt charge is 

designed to seek punishment for violation of the protective order .... To establish 

indirect criminal contempt, the Commonwealth must prove: ( 1) the Order was 

sufficiently definite, clear, and specific to the contemnor as to leave no doubt of the 

conduct prohibited; (2) the contemnor had notice of the Order; (3) the act 

constituting the violation must have been volitional; and (4) the contemnor must have 

acted with wrongful intent. Commonwealth v. Brumbaugh, 932 A.2d 1 08, 11 0 (Pa. 

Super. 2007); Commonwealth v. Ashton, 824 A.2d 1198, 1 202 (Pa. Super. 2003). 

With respect to Element ( 1 ), Wife believes that this Court erred in concluding 

that the Stipulated PFA Order was sufficiently definite, clear, and specific to the 

contemnor as to leave no doubt of the conduct prohibited, because the Stipulated 
Karl v. Dominguez-Cifuentes 

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Page 9 of 22 

PFA Order "did not define 'contact' and did not state 'immediate' and 'immediate' 

was not defined." See Statement of Errors Complained of on Appeal, at ,r 3-4. The 

Stipulated PFA Order states that "[Wife] is prohibited from any contact with 

[Husband], the Children ... either directly or indirectly, at any location ... " Stipulated 

PFA Order, at ,r 7d. The Stipulated PFA Order prohibits "contact ... either indirectly 

or directly." The language referencing "contact" contained in the Stipulated PFA 

Order is identical to the language referencing "contact" under Pa. R.CP. No. 

l 905(e). Nowhere in the forms prescribed under Pa. R.CP. No. 1905(e) is the word 

"contact" defined or the word "immediate" mentioned (with respect to contact 

between a Plaintiff and Defendant). Given the fact that the references to "contact" 

and "immediate" are exactly as prescribed under Pa. R.CP. 1905(e) this Court 

found that the language contained in the Stipulated PFA Order was sufficiently 

clear, concise, and specific. See Stipulated PFA Order; See also Pa. R.CP. No. 

7905(e).

4 

With respect to element (2), whether Wife had notice of the specific order or 

decree, this Court found that Wife and her counsel executed the Stipulated PFA 

Order on October 23, 2015, and that the Stipulated PFA Order was entered as an 

4 This Court can't help but note the contradictions contained in Wife's Statements of Errors Complained of on 

Appeal. Wife believes this Court abused its discretion by holding that the Stipulated PFA Order was clear, definite 

and specific, despite the fact that the first page was not in the exact form provided under Pa. R.C.P. 1905{e). Wife 

also believes that this Court abused its discretion by holding that the Stipulated PFA Order was clear, definite and 

specific on the basis that its references to "contact" and lack of reference to "immediate" are exactly as prescribed 

in the forms found under Pa. R.C.P. No. 1905{e). 
Karl v. Dominguez-Cifuentes 

2015-080484 

3321 EDA 2017 

12/5/2017 

Page l O of 22 

order of court on November 6, 20 l 5. Not only did Wife execute the Stipulated 

PFA Order, but she complied with its terms from November 6, 20 l 5 until June 5, 

2017, the date of the alleged violation. This Court therefore found that Wife had 

notice of the Stipulated PFA Order. However, in her Statement of Matters 

Complained of on Appeal, Wife contends that this Court erred when "it found that 

[Wife], who is not a Native English speaker, and who testified that she did not 

speak English well and that no one ever read the [Stipulated PFA Order] in her 

native language met the Diamond test

5 when no evidence was presented that 

[Wife] understood the Order." See Statement of Errors Complained of on Appeal, 

at ,r 4). Any insinuation from Wife that she did not have notice of the terms of the 

Stipulated PFA Order, because she "is not a native English speaker" was not 

credible. Wife testified that she signed the agreement because she "thought the 

best way ... of resolving that issue was to sign [the Stipulated PFA Order] with no 

admission of guilt ... " See N.T. 9/5/17 at 36. Wife, who testified in English during 

the trial on this matter, also testified that during visitation with the children she will 

read to them in English. Id. at 43. This Court found no indication that Wife could not 

"understand the terms of the [Stipulated PFA Order] because she was not a native 

5 Wife refers to "the Diamond Test" in her Statement of Errors Complained of on Appeal. From the surrounding 

context, and syntax used by Wife in crafting her Statement of Errors Complained of on Appeal, this Court believes 

that Wife is referring to the factors prescribed under the case of Diamond v. Diamond, 715 A.2d 1190 (Pa. Super. 

1998). However, this Court finds it more accurate to analyze a finding of indirect criminal contempt in accordance 

with factors prescribed under Commonwealth v. Brumbaugh, 932 A.2d 108, 110 {Pa. Super. 2007), which 

speclflcallv relates to contempt of a Protection from Abuse Order. 
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English speaker." In order for this Court to conclude that Wife did not have notice of 

the Stipulated PFA Order, because she did not sufficiently understand its terms, this 

Court would have to, in summary, conclude the following: 

a. That Wife was presented with an agreement containing terms restricting 

contact between her and her children, and between her and her husband; 

b. That her counsel did not ensure that she fully understood the terms of the 

agreement; 

c. That she and her counsel signed the agreement without Wife fully 

understanding its terms; 

d. After that agreement was entered by the Court as the Stipulated PFA 

Order, Wife coincidentally complied with its terms for a period of two (2) 

years, until the incident giving rise to the instant appeal; 

e. For approximately two (2) years Wife complied with the terms of the 

Stipulated PFA Order without questioning why any form of "contact" 

between her and her children was prohibited; 

Considering the above established facts, this Court found that Wife 

understood the terms of the Stipulated PFA Order, and. that by signing it, she had 

resolved the underlying PFA dispute between her and Husband. Accordingly, this 

Court found that Wife had sufficient notice of its existence to warrant a verdict of 

indirect criminal contempt in this matter. 
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With respect to element (3}, whether Wife's actions were volitional, "an act is 

volitional if it is knowingly made." Brumbaugh, 932 A.2d at 11 0. In Brumbaugh, the 

Defendant answered an invitation from the victim to attend a birthday party 

together. The Superior Court, in affirming the trial court's verdict of indirect criminal 

contempt, held that "Defendant knowing he was under a PFA Order to have no 

contact with the victim that evening nevertheless went to the party with her. He was 

not drugged, forced, or threatened." Id. at 111. This Court found that credible 

testimony established that Wife was outside of the chapel when she was 

approached by Michael Balsamo and Dr. Jay, who informed her in English and 

Spanish that Husband and the children were inside the chapel and instructed her not 

to enter the chapel, and further informed her that entering the chapel would 

constitute a violation of the Stipulated PFA Order. After hearing these instructions, 

Wife, who was facing away from the chapel, "did a 180 degree turn" and entered 

the chapel. From the credible testimony presented at trial, this Court concluded that 

Wife's actions were done with the specific knowledge that Husband and the 

children were inside the chapel, and that entering the chapel would constitute a 

violation of the Stipulated PFA Order. The . Court was not persuaded by Wife's 

testimony that she entered the chapel in order to escape the "harassment" of 

"Husband's security team" and did not find Wife credible that she could only 

escape this "harassment" by entering the chapel. 
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With respect to Element (4), whether Wife acted with wrongful intent, 

"wrongful intent can be imputed by virtue of the substantial certainty that, by 

choosing to contact the victim, the defendant would violate the "no contact" 

provision of the PFA." Brumbaugh, 932 A.2d at 111. The Stipulated PFA Order 

specifically states that "[Wife] is prohibited from any contact with [Husband], the 

Children ... either directly or indirectly, at any location, including but not limited to 

any contact at [Husband's] ... residence, school, business, or place of employment ... " 

Stipulated PFA Order, at ,i 7 (Emphasis Added). Wife knew that by entering the 

chapel, she would violate the Stipulated PFA Order. Wife was instructed in both 

English and Spanish that Husband and the children were inside the chapel and that 

entry into the chapel would be a violation of the Stipulated PFA Order. Based on 

credible testimony of several witnesses, this Court found that Wife acted with 

wrongful intent when she violated the Stipulated PFA Order. 

Therefore, based upon the evidence and credible testimony presented at 

trial, this Court found that the Stipulated PFA Order ( l) was sufficiently definite, 

clear, and specific to Wife as to leave no doubt of the conduct prohibited; (2) the 

Wife had notice of the Order; (3) the act constituting the violation was volitional; 

and (4) Wife acted with wrongful intent. 
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2. Did this Court err in concluding that the Stipulation Under Protection from 

Abuse Act And Uniform Prevention of Child Abduction Act was a valid 

protection from abuse order pursuant to 23 Pa. CS. § 6102, et seq. even 

though it was not in the exact form prescribed by Pa. R.CP. No. 1905(e)? 

Wife alleges, in her Concise Statement of Errors Complained of on Appeal, 

that this Court "abused its discretion when it determined that the Protection from 

Abuse was clear and concise even though the order was not clear and concise by 

statute because it was not in the proper form." Wife raised this argument during the 

hearing on this matter when she requested "that the Protection from Abuse be 

declared per se not clear or not definitive because it does not follow or conform to 

the rule for the PFA ... " See Statement of Errors Complained of on Appeal, at ,I l 

In accordance with Pa. R.CP. No. l 905(e), 

(e) The Final Order of Court, or any amended, modified or extended 

Final Order of Court, entered pursuant to the Act shall be substantially 

in the following form, but the first page must be exactly as set forth in 

this rule: 

Wife's position is that Pa. R.C.P. No. l 905{e) was not followed because the 

first page of the Stipulated PFA Order was not in the form prescribed under Pa. 

R.C.P. No. l 905(e). This Court notes that the Stipulated PFA Order does not contain 

a first page in the exact form prescribed by Pa. R.CP. No. l 905{e) and that Pa. 

R.CP. No. l 905(e) is clear when it states specifically that "the first page must be 

exactly as set forth in this rule." 
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This Court also notes that pursuant to Pa. R.CP. 7 27 (a) "the object of all 

interpretation and construction of rules is to ascertain and effectuate the intention of 

the Supreme Court." In applying this guideline, a rule should not be construed in a 

way that would make it contradict an express statute on the same subject, if it can 

be avoided. Shapiro v. Magaziner, 210 A.2d 890 {Pa. 1965). When construing a 

rule of civil procedure, the Superior Court's objective is to ascertain and effectuate 

the intent of the Supreme Court of Pennsylvania. Willits v. Fryer, 734 A.2d 425 (Pa. 

Super. 1999). 

Pa. R.CP. No. 7 27(b) provides that "every rule shall be construed, if possible, 

to give effect to all its provisions. When the words of a rule are clear and free from 

all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing 

its spirit." Where there is a conflict between the spirit of the law and the literal 

import of the terms employed, however, the former, at least in connection with other 

elements has often been declared to prevail over the latter. In any case, a 

construction contrary to the general spirit of the statute is to be avoided, and that 

construction is favored which conforms to, and operates to carry out, the spirit of the 

statute. See Am. Jr. 2d, Statutes § 71. Unless a lower court has made a clearly 

erroneous interpretation or there is an abuse of discretion, an appellate court will 

adopt the lower court's interpretation of a rule of court that is clear and precise. 

Straff v. Nationwide Mutual Ins. Co., 326 A.2d 586 (Pa. Super. 197 4). 
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In ascertaining the intention of the Supreme Court in the promulgation of a 

rule, the courts may be guided by the following presumptions among others: 

(a) That the Supreme Court does not intend a result that is absurd, 

impossible of execution, or unreasonable. Pa. R.CP. No. l 28{a). 

The comment section following Pa. R.CP. No. l 905(e) provides guidance in 

determining the intent of the Supreme Court and the spirit of the rule: 

The use of standardized forms provides uniformity and is critical to the 

enforcement of protection orders both inside and outside of 

Pennsylvania. These forms are based substantially on those proposed 

by members of the Pennsylvania Coalition Against Domestic Violence 

and have been further refined to accommodate the litigants' need for 

simplicity, the court's need for flexibility, and the law enforcement's 

need for certain identifying information necessary to enforce the 

protection order. The forms must be used so that all protection orders 

can be properly registered with the statewide PFA registry and the 

federal Protection Order File ("POF") established by the National 

Crime Information Center ("NCIC") for the collection of protection 

orders necessary for nationwide enforcement of protection orders. To 

this end, the forms capture all of the information that is required for 

data entry and the form orders are further structured to present that 

information in the order and sequence that is most helpful to the 

various law enforcement agencies responsible for entering the 

information into the files. 

Civil Procedural Rules Committee Explanatory Note to Pa. R.CP. No. 

1905(e). 

Upon review of the Explanatory Note to Pa. R.CP. l 905(e) cited in the 

above paragraph, it is clear that the language contained in Pa. R.CP. No. l 905(e), 

which specifically states that "the first page must be exactly as set forth in this rule" 

is written as such for the purposes of enforcement of protection orders, and not for 
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the validation of protection orders. This Court did not agree with Wife's contention 

that the failure to attach a form should lead to the invalidation of a protection 

order that has been in effect for approximately two (2) years. Had this Court 

invalidated the Stipulated PFA Order, as requested by Wife, this Court would have 

effectuated an absurd result contrary to Pa. R.CP. No. l 28(a}, and more 

importantly, this Court would create a dangerous precedent by which otherwise 

valid agreements entered into by parties to resolve domestic violence matters could 

be voided years afterward due to the failure to attach a form, the intent of which 

was not relevant to the agreed terms. 

3. Did this Court err in finding the testimony of Plaintiff and Plaintiff's witnesses 

credible? 

To the extent that Wife's argument challenges the credibility of Husband's 

testimony, and the testimony of his witnesses, such claim constitutes a challenge to 

the weight of the evidence. A challenge to the weight of the evidence must be 

raised with the trial judge in a motion for a new trial. Pa. R. Crim. P. 607(A). In the 

instant matter, Wife did not preserve a weight claim as required by Pa. R. Crim. P. 

607(A}, and, therefore, any such claim must be deemed waived. See 

Commonwealth v. Walsh, 36 A.3d 61 3, 622 (Pa. Super. 201 2) (finding waiver 

under Pa. R. Crim. P. 607(A) where appellant's motion for new trial following 

conviction of indirect criminal contempt did not include weight claim). 
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In matter relating to order for protection from abuse, Superior Court defers 

to credibility determinations of trial court as to witnesses who appeared before it. 

Hood O'Hara v. Wills, 873 A.2d 757, 759 (Pa. Super. 2005). Specifically, this 

Court found Husband's testimony credible with respect to his observations of Wife 

as she entered the chapel, smiled, and made a "hand gesture" at him. Wife's entry 

into the chapel was observed by security officer Mike Balsamo, who testified 

credibly that he attempted to instruct Wife not to enter the chapel, and used the 

Spanish translator to convey that information to Wife. Spanish translator Dr. Jay 

testified credibly that she translated Mr. Balsama's instructions to Wife, and that 

Wife, who was not facing the chapel, "did a 1 80 degree turn" and entered the 

chapel as soon as she heard that Husband . was inside and was instructed not to 

enter the chapel. This Court did not find Wife to be credible when she testified that 

she did not hear the instructions of Mr. Balsamo and Dr. Jay, and that she ran into 

the chapel to "escape the harassment of [Husband's] security team." 

4. Did this Court err in flnding Appellant gu11ty of indirect criminal contempt 

Instead of indirect civ11 contempt when the violation was de minimlsi 

There is nothing inherent in a contemptuous act or refusal to act which 

classifies that act as 'criminal' or 'civil'. The distinction between criminal and civil 

contempt is rather a distinction between two permissible judicial responses to 

contumacious behavior. Diamond v. Diamond, 715 A.2d 1 190, 1 1 94 (Pa. Super. 

1 998). To distinguish between civil and criminal contempt, the dominant purpose 
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and objective of the court's order must be looked to as the controlling factor. The 

adjudication of contempt is civil if the dominant purpose of a contempt proceeding 

is to prospectively coerce the contemnor to comply with a lawful Court Order. West 

Pittston Borough v. LIW Investments, Inc., 119 A.3d 415 (Pa. Commw. Ct. 2015}; 

Stewart v. Foxworth, 65 A.3d 468 (201 3); Childress v. Bogosian, 1 2 A.3d 448 

(201 1 }. If, however, the dominant purpose is to punish the contemnor for 

disobedience of the court's order or some other contemptuous act, the adjudication 

of contempt is criminal. Diamond, 715 A.2d at 1194. Dominant purpose of coercion 

or punishment is expressed in the sanction imposed. A civil adjudication of contempt 

coerces with a conditional or indeterminate sentence of which the contemnor may 

relieve himself by obeying the court's order, while a criminal adjudication of 

contempt punishes with a certain time of imprisonment or a fine which the contemnor 

is powerless to escape by compliance. Id Stated simply, in a civil contempt order 

the contemnor is able to purge himself of the contempt and thus holds the keys to 

the jailhouse door. Id. See, e.q., Colbert v. Gunning, 368 Pa. Super. 28, 29-31, 

533 A.2d 471, 472 (1987}; Markey v. Marino, 361 Pa.Super. 92, 96-98, 521 

A.2d 942, 945 ( 1 987}, alloc. denied, 51 6 Pa. 614, 531 A.2d 781 { 1 987); Knaus v. 

Knaus, 387 Pa. 370, 379, 127 A.2d 669, 673 (1956). 

Proceedings to enforce compliance with a court order are civil in nature if the 

purported act of contempt is a refusal to do {or refrain from doing) some act that 
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was ordered or prohibited primarily for the benefit of a private party. In re 

Contempt of Cullen, 849 A.2d l 207 (2004}; Com. v. Ashton, 2003 PA Super 194, 

824 A.2d 1198 (2003}. In Protection from Abuse matters, civil contempt is a 

remedy that may be utilized for the benefit of a private party pursuant to 23 Pa. 

CS.§ 6114. 7, which provides as follows: 

§ 61 14. 1. Civil contempt or modification for violation of an order or 

agreement: 

(a} General rule.-A plaintiff may file a petition for civil contempt with 

the issuing court alleging that the defendant has violated any 

provision of an order or court-approved agreement issued under 

this chapter or a foreign protection order. 

(b} Civil contempt order.-Upon finding of a violation of a protection 

order or court approved consent agreement issued under this 

chapter or a foreign protection order, the court, either pursuant to 

petition for civil contempt or on its own accord, may hold the 

defendant in civil contempt and constrain him in accordance with 

law. 

For example, a provision in a protection from abuse order which requires a 

Defendant to return items of personal property to a Plaintiff may be enforced by a 

Petition for Civil Contempt. See e.g. Gerace v. Gerace, 631 A.2d 1360 (Pa. Super. 

l 993). The indirect criminal contempt action, however, is criminal in nature and 

seeks to punish violations of the protective order. Commonwealth v. Nelson, 690 

A.2d 728 (Pa. Super. 1997). Indirect criminal contempt for violation of protection 

from abuse orders or agreements is prescribed under 23 Pa. CS. § 6114 (a), which 

states the following: 
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(a) General rule.-Where the police, sheriff or the plaintiff have 

filed charges of indirect criminal contempt against a defendant 

for violation of a protection order issued under this chapter, a 

foreign protection order or a court-approved consent 

agreement, the court may hold the defendant in indirect criminal 

contempt and punish the defendant in accordance with law. 

23 Pa. CS.§ 6 l 14(a) (Emphasis added). 

Where a PFA order is involved, an indirect criminal contempt charge is 

designed to seek punishment for violation of the protective order. Commonwealth v. 

Brumbaugh, 932 A.2d 108, 11 0 (Pa. Super. 2007). In Brumbaugh, Defendant was 

sentenced to a Three Hundred Dollar ($300.00) fine and probation due to violation 

of a "no contact provision" of a protection from abuse order. Defendant's violation 

of the "no contact provision" occurred when the victim contacted him and asked him 

to attend a birthday party with her. The Defendant agreed and attended the 

birthday party with the victim. The Superior Court affirmed the Trial Court's finding 

of indirect criminal contempt based on the determination that Defendant's act 

constituting the violation of the PFA Order was clearly volitional, or knowingly 

made, and that wrongful intent could be imputed by virtue of the substantial 

certainty that by choosing to accept the victim's invitation to travel with her in the 

same vehicle to a party, he would be in contact with her in violation of the PFA 

Order. 

In the instant matter, as in Brumbaugh, the Stipulated PFA Order at issue 

clearly prohibited Wife "from having any contact ••• either directly or indirectly" 
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with Husband. Wife had notice of this Order after consenting to it in writing. See 

Stipulated PFA Order; See also Brumbaugh, 932 A.2d at 1 1 0. Similar to the 

Defendant in Brumbaugh, Wife violated the "no contact provision" of a PFA Order. 

Proceedings were initiated by the Commonwealth of Pennsylvania by way of a 

Complaint for Indirect Criminal Contempt. The dominant purpose in the adjudication 

�f this matter was to punish Wife for disobedience of the Stipulated PFA Order. 

This Court applied the elements prescribed under the Brumbaugh and Ashton cases 

to determine that Wife was guilty of Indirect Criminal Contempt. 

CONCLUSION 

For the above stated reasons this Court's September 5, 2017 Order finding 

Wife guilty of indirect criminal contempt should be affirmed. 

BY THE COURT: 

Dominic F. Pileggi, J. 

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