J-S67021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

SCOTT A. VENANZIO

Appellee No. 485 WDA 2014

Appeal from the Order Entered March 26, 2014

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-MD-0000044-2014

BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 17, 2015

The Commonwealth appeals from the March 26, 2014 order dismissing 

Appellee, Scott A. Venanzio’s, indirect criminal contempt (ICC) charge 

without prejudice. After careful review, we quash this appeal. 

The certified record reveals the following relevant procedural history of 

this case. Appellee was the subject of a Protection from Abuse Act (PFA) 

order, proscribing most types of contact with his wife, the PFA complainant.1 

On December 27, 2013, police responded to a 911 call, reporting an alleged 

assault and a violation of the PFA order. Affidavit of Probable Cause, 1/3/14. 

The responding officers interviewed but did not arrest Appellee that evening. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 23 Pa.C.S.A. §§ 6101-6122.
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Instead, on January 3, 2014, the Commonwealth filed a complaint charging 

Appellee with ICC for violating the PFA order.2 Criminal Complaint, 1/3/14. 

A warrant was issued for Appellee’s arrest, and he turned himself in on 

January 15, 2014. Thereafter, the trial court scheduled a hearing on the 

charge for January 22, 2014. Trial Court Order, 1/17/14. At the hearing, 

the trial court granted defense counsel’s request for a continuance in order 

to research whether the Commonwealth complied with 23 Pa.C.S.A. 

§ 6113(f).3 Subsequently, on March 5, 2014, the trial court issued an 

opinion and order dismissing the charge against Appellee, without prejudice 

for the Commonwealth to refile. Trial Court Opinion, 3/5/14, at 5; Trial 

Court Order, 3/26/14.4 The Commonwealth did not refile the charge. This 

timely appeal followed.5

____________________________________________

2 23 Pa.C.S.A. § 6113. 

3 Section 6113(f) provides, in relevant part, “[a] hearing shall be scheduled 

within ten days of the filing of the charge or complaint of indirect criminal 

contempt.” 23 Pa.C.S.A. § 6113(f).

4 The trial court issued an order contemporaneously with its opinion which 

dismissed the “[i]ndirect [c]riminal [c]omplaint charge with prejudice.” Trial 

Court Order, 3/5/14. The description accompanying the filing of the order 

on the docket, however, indicates the dismissal is “without prejudice.” On 

March 26, 2014, the trial court amended the order, citing a typographical 

error, to read, “without prejudice.” Amended Trial Court Order, 3/26/14. 

5

 The Commonwealth filed its notice of appeal on March 27, 2014 from the 

trial court’s order of March 5, 2014. Thereafter, on April 4, 2014, the 

Commonwealth filed a petition to amend its notice appeal to reflect the 

March 26, 2014 amended order. This Court granted the Commonwealth’s 

petition. Per Curiam Order, 5/12/14. 

(Footnote Continued Next Page)
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On appeal, the Commonwealth raises the following issue for our 

review. 

Does the Section 6113(f) “10-Day” time period to 

schedule an indirect criminal contempt of court 

hearing begin running before the court has acquired 

personal jurisdiction of the defendant?

Commonwealth’s Brief at 4.6

Before addressing the Commonwealth’s issue, we must first determine 

if the appeal is properly before us, as “[w]e do not have jurisdiction over 

non-appealable orders.” Commonwealth v. Frey, 41 A.3d 605, 609 (Pa. 

Super. 2012) (citation omitted), appeal denied, 65 A.3d 413 (Pa. 2013). 

“The Pennsylvania Rules of Appellate Procedure ... delineate appealable 

orders as final orders (Pa.R.A.P. 341); interlocutory orders as of right 

(Pa.R.A.P. 311); interlocutory orders by permission (Pa.R.A.P. 312); and 

collateral orders (Pa.R.A.P. 313).” Commonwealth v. Mitchell, 72 A.3d 

715, 717 (Pa. Super. 2013) (citation omitted). In this case, the trial court 

dismissed the charge “without prejudice.” Trial Court Order, 3/26/14. The 

(Footnote Continued) _______________________

The docket does not reflect the trial court ordered the Commonwealth to file 

a concise statement of matters complained of on appeal, pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b). However, the trial court 

filed a “decree pursuant to Rule 1925(a)” stating the reasons for its decision 

appear in the opinion of the court, dated March 4, 2014, and the order, 

dated March 24, 2014 (filed March 5, 2014 and March 26, 2014, 

respectively). Trial Court Decree, 7/2/14. 

6 Appellee has not filed an appellate brief in this matter.
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Commonwealth asserts the order appealed from is a final order pursuant to 

42 Pa.C.S.A. 742 (conferring jurisdiction on the Superior Court over final 

orders from the courts of common pleas). Commonwealth’s Brief at 1. 

When reviewing the appealability of a trial court dismissing charges 

without prejudice, we consider the nature of the defect resulting in 

dismissal. “[I]f the defect which precipitated the dismissal may be cured by 

the Commonwealth, a subsequent appeal to this Court is considered 

interlocutory.” Commonwealth v. Bowman, 840 A.2d 311, 314 (Pa. 

Super. 2003) (citation omitted). “[O]n the other hand, if the defect which 

requires the dismissal of charges is incurable, then the order dismissing the 

charges is final, and appellate review is proper.”7 Commonwealth v. 

Waller, 682 A.2d 1292, 1294 (Pa. Super. 1996) (citation omitted). Our 

____________________________________________

7 Our Supreme Court previously held the dismissal of a charge for failure to 

bring that charge within five days of an appellant’s release from custody, 

pursuant to former Pennsylvania Rule of Criminal Procedure 130(d), was an 

incurable defect for which the proper remedy was appeal. Commonwealth 

v. La Belle, 612 A.2d 418, 420 (Pa. 1992). We conclude La Belle is 

distinguishable. Former Rule 130(d) provided the equivalent of a statute of 

limitations for filing a charge in cases of a warrantless arrest of the 

defendant. Id. Section 6113(f), by contrast, deals only with the timing of 

the scheduling of a hearing for a defendant already charged. 23 Pa.C.S.A. 

§ 6113. In the former circumstance, no act by the Commonwealth could 

retrospectively remedy the failure of the Commonwealth to charge the 

defendant within five days of his release from custody. In the latter 

circumstance, at issue in the instant case, Appellee’s hearing was not 

scheduled within ten days of the filing of the criminal complaint. Because 

this defect is not the equivalent of the Commonwealth failing to charge 

Appellee within the statute of limitations, we conclude it is curable by refiling 

the charges and complying with the scheduling timeline of Section 6113(f). 
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Supreme Court has held that the Commonwealth’s avenue for relief when a 

complaint has been dismissed is to refile the criminal complaint before the 

statute of limitations has expired.8 Id. (citation omitted). 

Instantly, the Commonwealth asserts the dismissal of the charge is an 

appealable, final order. Commonwealth Brief at 1. No argument is 

advanced on behalf of the Commonwealth that there is any impediment to 

the Commonwealth refiling charges against Appellee and complying with the 

ten-day rule for scheduling a contempt hearing. See 23 Pa.C.S.A. 

§ 6113(f). Consequently, we conclude the Commonwealth is able to cure 

the defect precipitating the instant dismissal by refiling the criminal charge 

against Appellee and complying with the time requirements of Section 

6113(f). See Bowman, supra. Accordingly, we quash the appeal.

Appeal quashed. 

Judge Donohue joins the majority.

Justice Fitzgerald concurs in the result. 

____________________________________________

8 We note the dismissal of the charge occurred prior to any presentment of 

evidence against Appellee, and thus, jeopardy had not attached. 

Commonwealth v. Ball, 97 A.3d 397, 400 (Pa. Super. 2014). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2015