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November 18, 1971

UNITED STATES ex rel. Clayton CARTER, Jr.
William JENNINGS, Warden, Chester County Farms, Chester County, Pennsylvania

VanArtsdalen, District Judge.

The opinion of the court was delivered by: VANARTSDALEN

VanARTSDALEN, District Judge.

 Petitioner seeks a writ of habeas corpus to effectuate discharge from state custody imposed for contempt of court in failing to comply with a mandatory injunction directing him to remove certain trailers from his premises. The petition will be denied.

 Most of the facts are summarized in the opinion of the Pennsylvania Supreme Court, East Caln Township v. Carter, 440 Pa. 607, 269 A. 2d 703 (1970) [hereinafter referred to as East Caln Township], which was an appeal from the order of the Court of Common Pleas holding petitioner, Clayton Carter, in contempt of court. Petitioner and his wife purchased a property in 1966 and thereafter proceeded to expand a trailer park located on the property. The Township of East Caln and individual citizens of that township instituted an action against petitioner and his wife seeking a permanent injunction against the operation of the trailer park as being in violation of the township zoning ordinance. The Court of Common Pleas in the state court action entered a Decree nisi on April 8, 1968, and a final decree granting the injunction on August 2, 1968. An appeal was filed in the Pennsylvania Supreme Court which was non prossed on January 23, 1969, for failure of the petitioner to prosecute the appeal.

 The township filed a petition to hold petitioner in contempt of court for noncompliance. A hearing on this petition was held on May 1, 1969. Petitioner presented evidence at that hearing and testified that he "had only become aware within the past week that any zoning matter was involved or included in the Decree." East Caln Township, supra, at 610, 269 A. 2d at 705. At the hearing on May 1, 1969, the final injunction decree was read to petitioner verbatim and the petitioner indicated that he fully understood the order. On May 2, 1969, the Court of Common Pleas entered an order holding petitioner in contempt, but allowing petitioner to purge himself of contempt by removing all trailers from the site by June 1, 1969. The order further provided that if the trailers were not removed by June 1, 1969, daily fines would be imposed, and if the fines were likewise not paid, petitioner would be then confined to jail until the order was complied with.

 On July 10, 1969, petitioner having failed to comply with either the injunction or the terms of the order whereby he could purge himself of contempt, the court on application issued a bench warrant. Although the sheriff actively attempted many times to serve the warrant, he was unsuccessful until May 26, 1971, more than two years after the contempt order was entered. During the intervening period, petitioner appealed the contempt order to the Pennsylvania Supreme Court, which court affirmed the contempt order. East Caln Township, supra.

 On May 28, 1971, two days after his arrest on the bench warrant, the present petition for a writ of habeas corpus was filed in this court averring lack of "due process" in the contempt proceeding. A show cause order was entered by this court and pending disposition thereof, the petitioner was released from state custody on bail.

 The petition alleged, inter alia, that "Relator * * * is willing to make every reasonable effort to terminate use of his said premises as a trailer park, as required by the Court, if he is set at large." (Paragraph 8 of the petition). In order to permit counsel to prepare for the hearing, and partially induced by the averments of the petition and in order to afford petitioner an opportunity to comply with the statement that he would make every reasonable effort to terminate use of the premises as a trailer park, the hearing was delayed until October 27, 1971. At the hearing, testimony was taken and argument held; briefs were subsequently submitted.

 Petitioner contends that his commitment for contempt of Court violated his federally protected constitutional right of "due process" because (1) the contempt of court was criminal rather than civil and the statutory procedural rights afforded one charged with a criminal contempt were disregarded; (2) petitioner was not personally served with a written copy of the injunction decree entered on August 2, 1968, the violation of which decree gave rise to the contempt order; and (3) the decree was and remains impossible for petitioner to comply with and therefore is constitutionally invalid. The first two of these issues were substantially raised and decided against petitioner in his direct appeal from the issuance of the injunction to the Pennsylvania Supreme Court. The third issue apparently was not raised on any prior occasion.

 Preliminarily, it should be noted that the injunction was issued more than three years ago, and petitioner has at least had actual knowledge of the decree for two and a half years, i.e., from the time when the petition was read verbatim to him by the trial judge in open court. During this interim period the only apparent effort made by petitioner to comply with the injunction was a notice to vacate premises sent to all the tenants of the trailer park which was not done until June 8, 1971 after petitioner had finally been arrested on the bench warrant and after his discharge on bond pending disposition of the present petition. This lack of diligence is indicative of the complete disregard the petitioner has consistently shown throughout for the injunction and the orders of the court and clearly shows a lack of "good faith" attempt to comply with the order. None of the mobile homes or trailers were in fact removed from the premises as of the date of the hearing in this court and no legal action has ever been taken by petitioner to compel compliance with the injunction despite clear-cut remedies available. As a matter of interest, one witness testified that he leased an area for his mobile home from petitioner in November of 1970 which not only was long after the injunction decree and the contempt order but was subsequent to the Supreme Court's affirmance of the contempt order. Although a portion of petitioner's property may have been in the adjoining township, this rental indicates that petitioner had every intention of continuing the operation of the trailer park. At the hearing, the petitioner's own testimony indicated that he had made no genuine effort to comply with the order.

 Petitioner's first contention is that he was entitled to, but was not afforded, the statutory procedural rights of one charged with an indirect criminal rather than civil contempt. The Act of June 23, 1931, P.L. 925 [Pa. Stat. tit. 17, § 2047 (1962)], provides that a person charged with an indirect criminal contempt shall be entitled (1) to bail pending determination of the contempt proceeding; (2) reasonable notice and time to prepare a defense and (3) upon demand, a right to a speedy and public trial by jury. Petitioner merely asserts these rights were not granted to him, but does not particularize. Even if the contempt is determined to be criminal, the record fails to disclose that petitioner was denied any of the statutory procedural rights. He remained free from custody until long after the final determination of the contempt proceedings by the Supreme Court of Pennsylvania. He has made no contention and the record does not disclose that there was any lack of adequate opportunity to prepare and present his defense. Likewise, petitioner makes no claim that he ever sought, desired or demanded a jury trial. Therefore, even if it be assumed that he was entitled to the statutory protections of an indirect criminal contempt proceeding, the record fails to disclose any denial of such procedures.

 The Supreme Court of Pennsylvania decided the issue holding that the proceeding was that of a civil rather than a criminal contempt. East Caln Township, supra. Whether or not this determination of state statutory procedures by the Supreme Court of the State is a decision binding on this court, I find, independent of the decision of the Supreme Court of Pennsylvania, on the basis of the record before me, that the proceeding was civil, and not criminal in nature. The primary test between a civil and a criminal contempt proceeding is a determination of the dominant purpose of the contempt order. If the primary purpose is to vindicate the dignity and authority of the court to protect the interest of the general public, it is criminal. If it is remedial and " judicial sanctions are employed (1) to coerce the defendant into compliance with the court's order, and (2) in some instances to compensate the complainant for losses sustained" then the contempt proceeding is civil. East Caln Township, supra, at 612-613, 269 A. 2d at 706, quoting Knaus v. Knaus, 387 Pa. 370, 376-77, 127 A. 2d 669, 672 (1956). The fact that the township, as a public entity, instituted the injunction and the subsequent contempt proceeding does not in and of itself make this contempt proceeding criminal in nature. The contempt order itself must be examined. In this case, the order clearly manifests that the purpose of the prospective imprisonment was to force compliance with the original order. As stated by the Supreme Court:

"That the dominant purpose and intent of the Court was to enforce compliance with its Order is further apparent from that part of its Contempt Order which gave Carter a grace period of one month to comply with the Order and the further opportunity to purge himself of all contempt of Court at any time thereafter by complying with and obeying the Court's Order. The conditional nature of the Contempt Order, which, we repeat, allowed appellant to purge himself of all contempt by complying with the Court's Order within a reasonable time, makes it clearly civil contempt." East Caln Township, supra, at 614, 269 A. 2d at 707.

 Since the contempt proceeding and order were civil rather than criminal, petitioner's contention that he was denied "due process" by reason of the court's failure to comply with statutory procedural ...

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