432 A.2d 1064 | Pa. Super. Ct. | 1981
Lead Opinion
OPINION
This is the second time that an appeal has been brought to this court in this matter. The facts necessary to an understanding of the background of this case are set forth in the Opinion of President Judge Toothman, of the Court of Common Pleas of Greene County, written in response to the first appeal wherein the appellants Yurts were ordered to plug a certain gas well. Since this court relied on that Opinion in affirming per curiam Judge Toothman’s original decree, Yurt v. Brumage, et al., 268 Pa.Super. 631, 413 A.2d 1138 (1979), we incorporate it herein by reference.
Following the affirmance in the earlier appeal, this court remanded the record to the court below on September 21, 1979. At a hearing on November 21, 1979, it was established
The Yurts argue, on this appeal, that the contempt finding was improper because the procedure laid down by the appellate courts of Pennsylvania in such matters was not followed. We agree.
In Crislip v. Harshman, 243 Pa.Super. 349, 365 A.2d 1260 (1976), we noted that five elements are essential to a civil contempt adjudication . . .: (1) a rule to show cause why an attachment should not issue; (2) an answer and hearing; (3) a rule absolute (arrest); (4) a hearing on the contempt citation; and (5) an adjudication of contempt. [Citations omitted.] Our supreme court has recently reviewed this procedure in Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977), and has added another requirement: when the court determines that there has been a willful noncompliance with its earlier . . . order constituting contempt, but the contemnor presents evidence of his present inability to comply . . ., the court in imposing coercive imprisonment [or fine] should set conditions for purging the contempt . . . which it believes beyond a reasonable doubt the contemnor has the present ability to meet. [Citation omitted.] The court found such caution necessary, for if the condition were beyond the capabilities of the contemnor, the imprisonment [or fine] would be tantamount to one for criminal contempt without the benefits of criminal procedural safeguards.
Kramer v. Kelly, 265 Pa.Super. 58, 64-65, 401 A.2d 799, 802 (1979) (emphasis in original).
Order vacated, and cause remanded for hearing consonant with this opinion.
. For the purpose of the issue in this appeal no further reference to it is necessary.
Dissenting Opinion
dissenting:
I dissent.
I would affirm the order of the lower court.