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LINDA BRENNAN v. DAVID BRENNAN (09/26/80)

filed: September 26, 1980.

LINDA BRENNAN
v.
DAVID BRENNAN, APPELLANT. APPEAL OF THEODORE BREAULT, ESQUIRE



No. 932 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, at No. C2752 of 1979.

COUNSEL

Joseph J. Pass, Jr., Pittsburgh, for appellant.

Sanford M. Aderson, Pittsburgh, for appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Montgomery and Hoffman, JJ. Hoffman, J., files a concurring opinion in which Spaeth, J., joins. Price, J., files a dissenting opinion.

Author: Montgomery

[ 281 Pa. Super. Page 363]

This appeal places in issue the propriety of a contempt Order against a Defendant's counsel in a custody case. The

[ 281 Pa. Super. Page 364]

Order resulted from counsel's refusal to disclose to the Court and to the Plaintiff the whereabouts of the Defendant and the children who are the subjects of the custody proceedings. We are called upon to examine the scope of the attorney-client privilege in these circumstances.

The record shows that on June 1, 1979, Plaintiff-Appellee Linda Brennan filed a Complaint against her husband, David Brennan, for custody of the two minor children of the parties, David Matthew Brennan, then 11 years of age, and Kelly Lynn Brennan, then 4 years of age. The Complaint alleges that the children resided in Allegheny County until May 27, 1979, when the father took the children and removed them from the jurisdiction, purportedly to reside in the State of Florida. Service of the Complaint in the case was made by Plaintiff by mailing a copy of the Complaint by certified mail, return receipt requested, as well as by ordinary mail, to the Defendant's last known residence.*fn1 The copy mailed by certified mail was returned unclaimed, but the copy sent by ordinary mail was not returned. Such service procedures satisfied Allegheny County Local Rule of Civil Procedure 1139.4, which provides:

RULE 1139.4 SERVICE.

(a) The complaint shall be served in any one of the following manners:

(1) In accordance with Pennsylvania Rules of Civil Procedure 1504; or

(2) By sending two copies of the complaint; one by certified mail, deliver to addressee only, return receipt requested and one by ordinary mail to the defendant's last known residential or business address;

(3) If service is not accomplished by certified mail as provided in paragraph (2) above, and there is no personal appearance by defendant, then service must be accomplished as in paragraph (1) above, or as may be authorized by the court. Service shall be presumed

[ 281 Pa. Super. Page 365]

    when certified mail is returned unclaimed and ordinary mail has not been returned.

(4) Where a person to be served resides outside the Commonwealth, service shall be made as above and in addition thereto may be made in any manner prescribed by the law of the place where service is made;

(5) When custody is sought, service shall also be made on all parents who are not a party to the action.

(b) No notice to defend or plead is required, and no responsive pleading is required.

On June 22, 1979, the Plaintiff filed a Petition to expedite the hearing date, which therefore had been set for October 11, 1979. She attached an affidavit to her Petition averring that the Defendant had advised her by telephone that he had received a copy of the Complaint. The lower court, on June 22, 1979, issued an Order setting a conciliation for July 2, 1979, directing both parties to appear, and directing the Defendant-Appellant to produce the children at the hearing. Subsequently, the Plaintiff, on July 5, 1979, filed an affidavit which, in pertinent part, declared that on June 21, 1979, she had advised the Defendant of the July 2, 1979 conciliation which had been ordered. Thus, the Appellee asserted by affidavit that she advised her husband of the conciliation date before her Petition for expedited hearing was even filed and the court set that date for the conciliation. Further, one Ethel Matthews, apparently the Plaintiff's mother, entered a second affidavit on record declaring that she had notified the Defendant of the conciliation on June 20, 1979, two full days before the Plaintiff's Petition was filed, and the conciliation date was fixed by the lower court.

The Defendant failed to appear or produce the children at the scheduled conciliation on July 2, 1979, and on that date the Court awarded temporary custody of the children to the Plaintiff. No further events concerning the case appear of record until October 11, 1979, when Attorney Theodore Breault, a member of the Allegheny County Bar, entered his appearance on behalf of the Defendant. At that time, Attorney Breault presented a Motion for Continuance on

[ 281 Pa. Super. Page 366]

    behalf of the Defendant. In this Motion it was alleged that the Defendant only found out about the hearing by chance a few days earlier, had not been provided notice under the Uniform Child Custody Jurisdiction Act, and also alleged that there was a lack of in personam jurisdiction over Defendant.

At the October 11, 1979 hearing, the Plaintiff testified that the Defendant had received a copy of the original Complaint in the case which had been sent by ordinary mail, and further, that Defendant had acknowledged in several telephone conversations that he had received notice of the October 11, 1979 hearing date. During the hearing, Attorney Breault was asked by the Court to reveal the home address and telephone number of the father as well as the name and address of the school the children were attending. Mr. Breault refused to provide such information, asserting that his client had specifically requested that he not do so. Mr. Breault grounded his refusal on the attorney-client privilege. Breault did, however, provide a business address and telephone number for his client. Following the hearing, the lower court issued an order requiring Attorney Breault to disclose by October 15, 1979, the father's business address and telephone number, his home address and telephone number, and the name and address of the childrens' school. A hearing was set for October 15, 1979.

At the hearing on October 15, 1979, Attorney Breault continued his refusal to reveal the home address and telephone number of the Defendant or the identity or location of the school then attended by the children. He did, however, provide the same business address and telephone number which he had previously furnished. Following the hearing, the Plaintiff petitioned the Court to enter a Rule to Show Cause why Attorney Breault should not be held in contempt for his failure to comply with the Court's Order of October 11, 1979 for disclosure. The lower court made the rule returnable on October 19, 1979, at which time a hearing was scheduled.

[ 281 Pa. Super. Page 367]

On October 19 Attorney Breault appeared at the hearing and again respectfully refused to divulge the information demanded by the Court, again relying primarily upon the attorney-client privilege. Attorney Breault, then represented by his own counsel, waived any additional hearings that may have been procedurally required prior to the adjudication of contempt. The lower court then entered an Order finding Attorney Breault in civil contempt of court, and imposed the sanction of a $100 per day fine, for the benefit of the Plaintiff, said fine to be increased by $100 per day each succeeding week until the information concerning the Defendant and the children was revealed.

The lower court denied Attorney Breault's request for a supersedeas but on October 23, 1979, upon an appeal by Attorney Breault, this Court granted a supersedeas and simultaneously advanced the argument on this appeal in order to expedite review.

The specific issue presented by this appeal involves a question of first impression in the appellate courts in our Commonwealth.*fn2 We are called upon to decide whether as a general principle, the attorney-client privilege may prevent a court from compelling an attorney to disclose his client's address, when that client has ...


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