*2 Judge, JACOBS, Before WATKINS, President HOFFMAN, CERCONE, PRICE, VAN der YOORT SPAETH, JJ.
PRICE, Judge. appeal holding ap-
This is an from a court order lower *3 pellant contempt failing for to make court-ordered support payments. appellant On raises three is- appeal, find sues. We the matter for a must be remanded finding further contempt. as to the wilfulness of the background A detailed all the not review of facts is necessary our disposition to It immediate of the case. note, will appellant separated suffice to appellee aft- and years er marriage nine produced which children. four Appellee attempted, by Pennsylvania recourse The Civil Support Law,1 pay- Procedural to secure the ment support money largely appellant, from but was unsuccessful, notwithstanding proceedings court various wage sup- and attachment orders. The first of several port 1, orders was on most entered 1969. The December recent January di- modification was made on recting appellant pay per week. $50.00 31, 1975,
On in- March court an order of the lower appellant apparently formed $8,508.25 in ar- he was support ap- rears Appellant on directed to orders. was pear hearing for 24,1975. a April on 13, 1953, seq. et July (62 2043.31) § § 1. Act of P.L. P.S. hearing. Aft- at the
Appellant appeared with counsel
appellant
judge
was
taking testimony,
found that
er
failing
payments make the
contempt
of court for
appellant
time,
At this
provided by orders.
various
ar-
$2,000.00 on the
if he
not
was informed that
did
imprisoned.
rearages
sixty days
he would
within
July 15,
for
A
scheduled
second
was
paid
$2,000.00.
appellant
if
determine
had
impris-
appellant
$2,000.00
paid and
had not been
a mo-
appealed
filed
Appellant
to our court and
oned.
This
supersedeas.
tion in
the lower court
an order
motion
appellant
a similar
motion
and
filed
was denied
supersedeas.
granted
with our court. We
fol
argues
procedure
Appellant
first
re
comply
lowed
court did not
lower
ele
contempt proceeding. Five
quirements for
a
(1)
adjudication:
ments are essential to a civil
issue,
why
an
should
a rule
show cause
attachment
(arrest),
(2)
(3)
rule
hearing,
an
absolute
answer
adju
(5)
(4)
an
citation,
on
contempt.
Simmons,
Pa.Su
dication of
Simmons v.
proceed
(1975).
per. 365,
review of
There no doubt that the informing in arrears 31, 1975, that he was that he payments on the orders due various *4 hearing, April consti- appear 24, for to was appear Appellant and at to cause. did tutes a rule show against charge him. orally the that time he answered meeting By informing appellant of the of the nature effeсt April 24, 1975, the set- for court was scheduled charges, i. ting appellant to answer the a date certain hearing, hearing. At first e., the of this first date concerning income, expens- appellant gave testimony at- es, paid. He also the he had amount tempted explain why comply he had the failed with why petitioned orders and had for a modification of the order.
Following taking judge the testimony, found appellant contempt finding inwas This court. was, admittedly, premature. judge should have made the hearing rule absolute and scheduled another determine charge. Instead, contempt merits judge gave appellant opportunity purge an himsеlf contempt by of the fulfilling imposed by the a condition hearing court. The court set a date for a second which the adjudicated. issue of finally would be If, at the hearing, successfully second com- had plied with the promulgated condition by the court, contempt finding July would been reversed. 1975, was hearing. set as the date for this second
At this hearing, apparent appel- second it became lant had not successfully purged himself of the testimony citation. After hearing appel- once more as to lant’s financial history, judge again ap- the trial found pellant in contempt days him 30 sentenced county jail in $2,000.00 payment lieu of a on the arreаr- ages. are, therefore,
We ap- faced with a situation wherein pellant given hearings two before official sanc- against tions were leveled Although him. the nomencla- ture hearings ascribed to various the lower court conveys, on the message surface, a inconsistent rules, through when we bore terminology and extract the core of the hearings, that, we substance, find procedures employed comply requirements. with the
Although April resulted finding of contempt rather than a determination rule was not discharged, the result of the court’s deter- mination was the simply making same as the rule abso- lute. A second scheduled, affording thus necessary all procedural requirements.
Appellant punishment suffered no until after deter- contempt hearing. mination of He in- second against charge apprised formed of the him and of purging contempt avoiding means of himself of punishment. by required That is all rules.
Appellant next contends elicit evidence contempt ed prove at the was insufficient wilfully comply support failed to with the court or that, ders. Our review of the evidence us convinces us, presently record impossible before it is to make objective an propriety determination of the of the con tempt citation. Pennsylvania Support pro- Civil Procedural Law as
vides follows: “(b) Any comply any failure to wilful with order may the court be deemed ex- court and cept in may punishable by counties of the first class be by the court county jail commitment to the or house any In person correction. counties first class, found, wilfully who is hearing, after failed comply may adjudged order of the court be may by punished of court and the court county jail commitment to the or house of correc- compliance tion until order, with said but no case period exceeding (6) for a months, six the court its upon order shall state condition which fulfill- person.” ment will result in the release such Act of July 13, (62 2043.39(b)), P.L. P.S. § § amended. intentional,
“Wilful” designed has been defined as “an justifiable act and one without excuse.” Commonwealth Wright ex rel. Hendrick, 40, 312 A.2d (1973). bar, appellant In the case at testified that he had failed orders because he was unem- ployed and had no funds. He also testified that his ex- unemployed wife was aware of his status and that he had *6 Family notified a counselor in the his Division of em- ployment problems. He stated that he assumed that the arrearages not would accumulate while he was unem- ployed, apply he but did admit that he did not for a can- arrearages. cellation However, appellant’s positive of by times, evidence is that, clouded indications at various he had any payments ap- failed to make even when it peared that requisite he did the funds. For exam- ple, appellant support often failed to make even token payments unemployment compensation. from his any event, In opinion the lower court in its stated “ [appellant] . . . did not offer evidence failing obey which would excuse his conduct in the Or- Support.” (emphasis added) ders of a determina- Such by testimony given. Appellant tion is warranted attempt explain justify non-compliance did his with the court orders. must remand for a considered We by the appel- determination court lower as to whether lant’s conduct was “wilful” as defined in Commоnwealth Wright Hendrick, supra. ex rel. v.
We have determined that an additional required, emphasize is if, and we must further remand, again appellant lower court determines that in upon appel is imposed wilful contempt, condition purging lant himself of the must be one capable which performing. is “An order committing prison a defendant for a civil beyond until he something apparently does which is his power clearly to do is an order cannot which this Court approve.” 370, Knaus, 380, Knaus v. 387 Pa. 127 A.2d (1956). However, presently 674 if un able to fulfill the conditions of the order because some voluntary compliance, act on part, his done to avoid escape recently will not sanction. As we said most Pa.Super. Barrett, 590, 595-96, Barrett v. 352 A.2d (1975): 74, 77 this, judges courts
“In cases such pleas required the conditions to state of common are im- fulfilled, contemnor’s which, if cause will prison. Uniform Revised mediate release from See Support (1968), Act Act Reciprocal Enforcement (62 2043- P.S. 6, 1972, § No. § Dec. P.L. Knaus, 1), seq. et also Knaus See lower imposed (1956). orders A.2d 669 condition case contained court instant arrearages appellant pay toward certain sums compliance Penn- release, order to secure sylvania law. purpose of the
“Appellant incorrectly perceives *7 im- that he was upon imposed him. He believes orders However, his charac- indigent. рrisoned because is imprisoned for will- He was not correct. terization is fully he was fully which violating orders court with entered. were capable complying the orders when present has may indigent appellant be The fact that support and chil- bearing his wife his to no failure agree appel- with able. we dren when he was Were imprisoned for indigent may be that no lant’s belief support his de- failing contempt by willfully civil voluntarily indigency though pendents, even lose all created, would the courts Commonwealth not so hold.” will power to orders. We enforce “ . case, court stated: the lower In the instant County days Jail, or you ordering 30 to serve I am immediаtely.” you you released pay $2,000 if will order, this we must (NT 15) sanction Before we will capability appellant not have did have indication pris- precedent from to his release to fulfill the condition wilfully capability, he has on, if he does or, There is no inability compliance. to avoid caused us. indication in record now before such
857 terminated, supersedeas order of the lower The is is re- July vacated, and the case court dated 15, 1975, opinion. for further consistent with manded HOFFMAN, concurring dissenting opin- J., files a ion. concurring dissenting opinion
SPAETH, J., files a
J.,
joins.
which CERCONE,
(concurring
dissenting).
HOFFMAN, Judge
agree
Majority
procedure
I
with the
that the
followed
by
substantially complied
the re
the lower court
Maga
quirements
Magaziner
of Commonwealth ex rel.
v.
ziner,
(1969),
Pa.
A.2d 263
and that
prejudice
disparities.
suffered no
from
technical
Simmons,
Pa.Super. 365, 335
See also Simmons
v.
(1975).
A.2d
I also
for
agree
that we must remand
“willfully”
as to whether
refused
pay
Wright
arrearages.
See Commonwealth ex rel.
However,
Hendrick,
(1973).
78, 22, (1975), 346 A.2d for 28 the distin- stated test guishing contempt contempt from indirect criminal purpose prospectively as “If follows: the is to dominant comply coerce thе the contemnor to with an order of however, court, adjudication contempt If, the of is civil. purpose punish the dominant is to the for dis- contemnor contemp- obedience the court’s order or some other act, adjudication contempt tuous the is criminal.” See (1956). also 370, Knaus v. A.2d 669 127 Knaus, presently comply If lower cannot the with keys order, longer court’s of his then he no “carries the prison pocket” in his own coerce and court cannot supra, at keys. Knaus v. Knaus, to use the
contemnor only purpose 379, at The court’s could 127 A.2d 673. punish past disobedience the contemnor for to the purpose requires adherence court’s order. Such a safeguards employed cases. See in criminal 925, 1; 23,1931, Act of P.L. 17 P.S. 2047. June § § to whether Therefore, a as I remand for would arrearages pay and appellant “willfully” refused to arrearages pay the present ability to whether he has specified by the court order. dissenting).
SPAETH, Judge (concurring and agree majority’s order I conclusion with the record re- of the lower court must be vacated appellant’s failure for manded determination whether I can- comply wilful. order was with the lower court’s majority’s however, agree conclusion not, with purported procedure culminating court’s in the lower requisite finding [appellant] “afforded Pa.Super. 352, at protection.” majority Opinion of 1261. separated in parties 1960, were married entered 1969, 1,
1969. On December an order agreement County Allegheny of Common for the directing appellant pay week Pleas $75.00 in re- entered of his children. This order sponse complaint by appellee Proce- to a under Civil filed 431, et 1953, Support Law, July 13, dural Act of P.L. § seq., seq.1 et P.S. 2043.31 § order,
Appellant comply failed to employer April wages 24, attached and his were 1970, Family directed to to the Division a week $75.00 presented. regarding Accordingly, no criminal sanctions is 1. issue 6, 6, 1972, 334, 1, 1482, § eff. June See the Act of Dec. P.L. No. 1917, 268, 24, § § May P.L. 18 C.P.S.A. and the Act of amended, Aрpellee § com- 19 P.S. did file criminal 1151. plaint non-support Aug., on it was but indefinitely. continued *9 Appel- County Allegheny of Pleas. Court Common Transporta- employer lant’s was Werner Continental appellant truck driv- Company Minnesota; was a tion of Pittsburgh er in the area. Wisconsin, and on
Appellee moved to and children was July payee order 14, of the attachment 1970, Department changed Wisconsin, County, to the Kenosha pro- a 1971, appellee filed July of Public In Welfare. of Reciprocal En- ceeding under Wisconsin Uniform 1968, and Support Act, forcement of 52.10 Wis.Laws § County July 22, 1971, judge a of the Kenosha support his duty appellant determined that a owеd a children and that needs were children’s $75.00 to Alle- proceedings certified week. The were Wisconsin appel- gheny ordered. When County, and a was De- body On appear, lant issued. failed to attachment hearing, appellant ordered 15, was 1971, cember after dismissed, “same pay $40, body was and the attachment referred (presumably this order to remain force” week). pay 1,1969, December $75 order County Allegheny from Appellee Wis- moved back requesting May petition consin, filed a 1972, the order “collection of the arrears and enforcement hearing, 8, after 1,1969].” June December On [of Appellant was modified. December 1969 order his for the a month was directed to $150 as a working then truck children. Since was Etna, Penn- Company of driver for the Modern Transfer attaching wages Conti- sylvania, at Werner the order his dissolved, at- an order Transportation nental was Ar- taching issued. wages at Transfer was Modern arrear- rearages (the ordered “to stand” amount were partial given cus- ages specified); not was re- tody children; ordered to be case days. in 90 viewed January However, on
This review did occur. the Fam- response request a counselor of to a *10 ily hearing result a held with the Division, review was appel- the and 8, 1972, that order of June modified was support of pay lant was to directed a week the $50 wages attaching appellant’s The order children. Nothing similarly from Modern Transfer was modified. arrearages. said about issued On March the lower court an order of informing appellant appeared it to the court in January “in on 1973] arrears order of [the or- previous $7,758.25 amount on arrears and $750 April appear on ders.” The order directed to 24, 1975, found you may be hearing “for a at which time jail, Contempt in a to term be committed and pay fine, a or both.” hearing
Appellant After appear, did with counsel. stated: later, the which will court testimony, be discussed contempt of you my finding THE It are COURT: sixty period of going you give аm to a Court. I you days arrearages. if pay $2,000 And to on you ordering to sixty days do not it I am within you have jail be time will sentenced to at that set hearing. which will You will have a up I will right, 24. you in—all June will until give you payment day certain make $2,000. ques- one Ask [appellant’s
MR. KRANSON counsel]: adjusted ar- you tion those for clarification. Have rearages $2,000 ? arrearages. No,
THE not reduced I have COURT: opinion are still valid arrearages in my shown ordering make I am him they $8,708.25. are he does payment and if $2,000 24, 1975, June 15th, July hearing on we will hold a do so him I send or not will to determine whether jail. testimony Again, July 15.
A was held appeared itWhen discussed later. will be stated: paid $2,000, court had not Jail, County days ordering you to serve 30 I am immedi- you released you pay $2,000 will be if ately. motion filed a
Appellant appealed this court and supersedeas. When court for an order of the lower in this court denied, appellant filed a motion motion was granted. supersedeas; motion was for an order *11 I THE COURT’S OF LOWER PROPRIETY THE PROCEDURE supra, Support Law, the Procedural 9 of Civil Section court the enforcement 2043.39, provides for 62 P.S. § provides Paragraph (a) that orders. either receiving court, upon information,
[t]he any hearing, that through application or at written court, of the comply the order to with there is a failure proceedings, to may directed attachment issuе directing county, proper officer of or other sheriff brought the court before person named be Paragraph provides (b) any comply order
[a]ny with wilful failure except may of court and deemed a court be by may punishable of the first class be counties county jail house or to the court commitment correction. wages, the attachment
Paragraph (c) provides for reports provides “periodic (d) paragraph any comply order with failure to of defaults in and court the court.” pro indicated, As has court not, been lower did paragraph (a), vided in “issue attachment proceedings, validity Sheriffaccоrdingly, directed of thus initiating proceeding an enforcement not be dis need 67-68, cussed. But see Estate, 63, Messmore’s 293 Pa. 724, (1928); Douglass-Whisler 141 A. Brick Co. v. Simpson, 517, 519, 760, (1912); 233 Pa. New 82 A. Brighton &c., Pittsburgh Co., R. R. R. R. Co. v. &c. (1884). Instead, appel 105 Pa. 13, the court ordered appear lant to hearing, did, for a he him which and held contempt. (b) paragraph While authorize a con does tempt order, upon proof “[a]ny wilful failure to com ply court,” order of the it is to the silent as procedure arriving be followed at such an order. may
It be that the reason for silence is surmised procedure according that the differ, will whether 16, See, g., or criminal. Act of June e. P.L. 23 and 2041 and P.S. §§ §§ penal classifying contempts spеcifying punish- may imposed. ment Accordingly, to determine propriety procedure of the lower court’s present case, it necessary is first to determine whether appellant’s contempt, assuming contempt, was in civil or criminal.
This difficulty, determination involves no for the law only recently comprehensively has by been examined our Supreme In re Martorano, Court. 464 Pa. 346 A.2d (1975). collecting (the There is was said footnotes omitted): authorities are nothing
There is
contemptuous
inherent
in a
act or re-
fusal to act which classifies that act as “criminal” or
“civil.” The distinction between criminal and civil
contempt
permissi-
is rather a distinction between two
judicial responses
contemptuous
ble
For
behavior.
example,
contemptuous
it is clear that a
to tes-
refusal
tify
grand jury may
before a
be dealt with either [as]
contempt,
criminal
contempt,
civil
or both.
according
judicial responses
to the
These
are classified
pur-
purpose
If
of the court.
the dominant
dominant
comply
pose
prospectively coerce the contemnor to
is to
adjudication
con-
court,
order of the
with an
If,
purpose
tempt
however, the dominant
is to
is civil.
punish
the contemnor for disobedience of
court’s
contemptuous
adjudication
act,
order or some other
contempt
is criminal.
Applying principles, these of con tempt civil; purpose pro here was its dominant “to spectively [appellant] comply coerce with” the lower support, arrearages several orders of on which court’s Knaus, had See also accumulated. Knaus v.
378, 127 (1956): A.2d point contempt generally
The factors said to to a civil (1) complainant private per- are these: Where the is a opposed government governmental son as to a or a agency; (2) proceeding where the is entitled injunction original action and filed as continuation opposed separate independent thereof as to а ac- (3) ; holding tion where the defendant in af- private party; (4) fords relief to a where the relief requested primarily complain- is for the benefit of the ant; (5) contempt complained where the acts of primarily of are character not of them- and do selves constitute crimes or conduct the defendant so impelled contumelious that the court is on its to act own motion.
Except (non-support may crime, for the see last abe 1, supra), footnote all of these criteria are met here. being adjudication
It determined that civil, procedure required of the lower court long-settled recently upon. both insisted leаding Snowden, case is Commonwealth *13 Brewster (Pa.1868). James Pro- Ross Snowden was
thonotary Supreme appeared Court. It cer- that a prisoner tain possession was found in of naturalization signed certificates purporting to be and sealed in blank Thereupon granted Snowden. a rule was on Snowden why show cause an attachment should not issue against rule, him. At pro- on the Snowden duced signed evidence that in fact had not the certifi- SHARSWOOD, ruled, cates. J., however, that “as impression appeared genuine,” of the seal to be at id. granted. the rule be should filed an an- Snowden any knowledge swer in which he denied of the certifi- held, considering A cates. and after the tes- timony, opinion, which is disсussed in the the court con- cluded that in fact Snowden had known about certificates, guilty and further that he had not been gross negligence allowing business of his office be so might surrepti- transacted that the certificates tiously discharged. obtained. The rule was therefore In explaining procedure, the court stated: generally granted
A rule is in the first instance on af- fidavits, upon the return of which the defendant an- oath, heard, swers on the evidence is and if the Court opinion should be of the fact on the rule which sufficiently taken is not excused, answered or point incurred, of law a has been an brought attachment is awarded when the defendant interrogatories propounded in on this writ to answer to him Commonwealth, on behalf of the name whose always issues, gives writ if he such answers as purge criminality, him from the he must be dis- charged. 219, citing inter
Id. alia Commentaries Blackstone’s 287. Magaziner
In Magaziner, Commonwealth ex rel. 5,1, (1969), 253 A.2d this statement of the quoted [ting] practice law was “set forth the on at-
365 going Supreme contempt,” the tachment for civil on to add: step must process words,
In other
it is a several
contempt
show
place
civil
to
to
in
take
hold one
—rule
why
issue,
and
answer
cause
an attachment should
hearing
hearing,
the con-
(arrest),
rule absolute
on
contempt.
citation,
tempt
adjudication of
6,
Id. at
We 365, Simmons, Pa.Super. A.2d 764 mons v. appeal order of con- (1975). There an from an too was opportunity tempt. Because rule issued without “[t]he hearing specifically directed answer —no was held contempt subsequent the determination citation contempt ,” 767, . A.2d 371, . id. at . order was the record remanded. vacated and opinion present the lower court states
In its in the case strictly “[throughout case the court adhered procedure contempt recently most set cases as , fol- forth in Simmons Simmons . . . which is as why not is- lows Rule to should : show cause attachment absolute, hearing hearing, sue on the answer rule contempt contempt.” citation, adjudication of Elsewhere opiniоn making it this state- is indicated that ment the court March means that order of directing appellant April appear hearing on April cause, hearing the rule to was was show on hearing hearing, the answer and of the and the result hearing July absolute; was to make the on rule paid when he had asked whether was citation; $2,000, resulting from that of commitment order however, record, adjudication contempt. was the procedure will not sustain this characterization that was followed.
First, treating the order of to show March 31 as a rule cause, appellant permitted never filed —nor to file —any answer.
Second, important defect, and a much mоre the hear- ing April only 24 was not to decide whether the rule should absolute; hearing, be made it was the adjudication Thus, it contempt. resulted an only testimony after the briefest pages court —two —the right, go “All contempt hearing.” stated: let’s into the *15 (N.T. 6, 4/24/75). hearing testimony, After further my you court finding stated: “It is are in (N.T. 17,4/24/75). court.”
Third, although hearing July 15 was a second hearing, it was not hearing the sort of second that is re- quired. by supra, As Snowden, shown Commonwealth v. hearing the first only is whether decide an attachment issue; should issue, hearing if it does then the second held, person decide whether the attached shall be or, Magaziner: contempt, succinctly as stated in it is a “hearing contemрt citation, adjudication on the [and an] contempt.” Magaziner Magaziner, supra at Here, appellant already, A.2d at 266. at had April hearing, adjudicated contempt. The been only purpose July hearing by was stated itself, April court lower at the conclusion of the 24 hear- “ ing: f [pay $2,000] does not will hold a [I] we hearing July on or 1975, to determine whether jail.” not I (N.T. 4/24/75). will send him to regard may In this a further observation be made. Magaziner, The hearing required by Snowden, second searching and Simmons will a rule be fuller and more as than the The Snowden, first. facts of which been above, stated present point. illustrate this In the case appellant’s prove why when counsеl the ar- offered rearages accumulated, appellee’s objected had counsel ground that matters were contained “[t]hese April 24, that was held on A 1975. rehash adjudicated previously by the matters that have been (N.T. 4, 7/15/75) did Court.” The court ruled: “We go April patient listen into it on I will be 24th. But again. objection.” to it The I overrule the So will repeti- understanding Court added: it is “With the tive, (N.T. 5, 7/15/75.) but I will listen.” question the “several
Accordingly, there can be no step Magaziner, process” Snowden, Sim- required by re- procedural mons was not This defect alone followed. quires vacated order of the lower court be procedendo. order of record remanded with a may appel- cause, March 31 serve as rule to but show permitted lant should a time to file an answer within specified by the court. The should then hold court first which to determine whether “the fact on sufficiently rule or was taken is . answered excused,” Snowden, supra 1 Commonwealth v. Brewster 219, and, not, proceed if should thereafter to the sec- hearing, ond required the cases.
II
THE
WHETHER
EVIDENCE SHOWED
WILFUL DISOBEDIENCE
presumably
hearing will
be
Since on remand a further
unnecessary
held,
received, it is
and additional evidence
far
appellant’s
the evidence so
to rule on
contention that
comply
“[a]ny wilful
received did not show
failure
any
the
Civil
order” of
lower court.
Procedurаl
2043.39(b).
is
Support Law, supra,
9(b),
It
62 P.S.
§
§
princi-
appropriate
pertinent
refer to the
nevertheless
hearing may
ples
further
of law so that
on remand
principles.
be
in
those
conducted
accordance with
Law,
Support
appears
As
from
Procedural
the Civil
failure
there
a “wilful
will be whether
issue
ex-
comply.”
meaning
requirement was
of this
The
Hendrick,
Wright
plained in
ex rel.
Commonwealth
Supreme
(1973),
where
While seems used, it is it depending the context in which instantly in- statute used in the that, clear to us intentional, designed act and volved, “wilful” means an justifiable one without excuse. 40, 312 404. A.2d at
Id.
$4,000
arrears
Wright
respondent
was some
In
The lower
support
children.
payments
of his
mоnths in
“$1,000 or six
pay
him
court ordered
paid
and
$1,000 was not
House of Correction.”
cor-
ensuing habeas
respondent
In the
was committed.
respondent
appeared
was without
pus hearing
that the
it
any
the arrear-
sum towards
funds and unable
un-
prison
of an
on conviction
been in
ages, that he had
willing to
offense,
he was able
criminal
that
related
shortly
unemployed
continuously
since
been
work but had
being support-
prison,
that he was
release from
after
testimony from
“There
no
his mother.
ed
testimony.”
Id. at
disprove this
or
source to discredit
Supreme
record,”
said
As the record stands now say Wright. is not to This from the record dissimilar adjudicat- eventually may properly however, lower say, contempt. It tois ed in appellant’s contentions. account of court must take testimony was uncontra- (whose Specifically, arrearages accu- all of dicted) testified that almost during those He said mulated in 1970 1971. *17 never agreed that he had unemployed. years He he was his arrearages, that said but applied of cancellation for he working; said he also not (then) knew he was wife he that Family Division told counselor a ar- stating he did not realize working, further wages accumulating, he knew since rearages were stop. thought “I it would $75 were attached: thought would my I it my pay, job, I lost taken out asked, “And would (N.T. 13, stop.” 4/24/75.) When you abided have years 1972, you say for the your chil- support of Court Order [sic ] re- 9, 7/15/75.) With (N.T. dren?”, replied, he “Yes.” days only, and gard five he he had worked said compensation unemployment had been on otherwise hearing, he ac- July 15 every At the two weeks. $96.00 had April knowledged since the saying, weekly payments, required of the missed four $50 record, week paying got pretty good figured “I I $50 12, 7/15/75.) (N.T. my unemployment out check.” respect $2,000 payment, he testified: to the With you why haven’t Q. explain you to the Court Would you paid $2,000 Honor asked which His April 24 ? unemployed Being self-explanatory. A. I think it’s your you just pull hat. $2,000 don’t out Q. to ac- you you could sell which Do assets type
cumulate this of cash? probably got
A. I I a car. could.
Q. your You need car ? my
A. But I need car for work.
(N.T. 12, 7/15/75.) opinion simply the lower court states: In its any evi- did not offer At the the defendant failing to conduct dence which would excuse his Support. obey Order record. adequate characterization
This is not an *18 370
Ill THE ORDER THE THE FORM OF PROPRIETY OF lower court It be that the order of the will recalled “ County Jail, you if days in the or was, . . .30 you immediately.” on $2,000 will be released Since contempt may entered —for remand another order of be just discussed, appellant may guilty of wil- fact be appellant’s appropriate ful disobedience —it is to consider improper. contention that this order was purpose of civil It has been seen of an order Martorano, su re contempt In compliance. is to coerce pra; supra. Knaus, Knaus v. From this it follows compliance not, im possible; the order is must be if it is proper. for civil Knaus In committed defendant was contempt getting di enjoining from of an order him got Arkansas; order, he had vorce in defiance divorce, appealed, ten the his had the Arkansas Su wife preme affirmed, Re he had remarried. Court had versing, Supreme asked, could “But what going purge contempt?”, himself this do say: on to discloses
There is in this record no evidence which
remedy
matter
what
could do to
issued,
time
his commitment
the attachment
or when
may
committed
Before
be
ordered.
a defendant
contempt,
it
clear what
for civil
it is essential
purge
con-
required of him
of the
is
in order to
himself
tempt,
the con-
and the commitment order should state
complied
In
dition which when
with will release him.
contempt
thereof,
commitment
for civil
absence
improper.
committing
is
An order
a defendant
something
prison
contempt
for civil
until he does
clearly
beyond
power
apparently
which is
to do is
approve.
an order which this Court cannot
Knaus, supra
Knaus v.
A.2d at 674.
CERCONE, J., joins opinion. in this
Superior Pennsylvania.
Nov. 1976. say 2. avoid This is not one can commitment for con- Estate, tempt poverty. 293 Pa. because Messmore’s Cf. (1928) (executor A. 724 for failure to beneficiar- poverty). point purge by plea ies could not himself at is- contempt. only sue here concerns commitment for civil