No. 426 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Criminal Division, Montgomery County, No. 2647-80.
A. Richard Gerber, Norristown, for appellants.
Joseph Hylan, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wickersham, Wieand and Lipez, JJ.
This appeal is from an order denying appellants' motion to dismiss proceedings*fn1 against them for direct criminal contempt.*fn2 The basis for the motion was the Commonwealth's alleged failure to comply with the 180-day time limit for trial under Rule of Criminal Procedure 1100(a)(2). The sole issue before us is whether Rule 1100 applies to cases of direct criminal contempt. We hold that it does not.*fn3
Pennsylvania Rule of Criminal Procedure 1100(a)(2) provides:
Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
It is clear that Rule 1100(a)(2) only applies to a "court case", which is defined as follows: "' Court Case ' is a case in which one or more of the offenses charged is a misdemeanor, felony or murder of the first or second degree." Pa.R.Crim.P. 3(f). Since contempt is not murder of the first or second degree, it can only be governed by Rule 1100 if it is a misdemeanor or felony.
Appellants contend that direct criminal contempt must fall within some degree of felony or misdemeanor, as defined by subsection (b)(2) through (9) of section 106 of the Crimes Code, 18 Pa.C.S. § 106(b)(2)-(9). This is plainly incorrect, because all the various degrees of felony and misdemeanor in subsection (b)(2) through (9) are defined in terms of the maximum penalty set by the legislature. See also 18 Pa.C.S. §§ 1103, 1104. As appellants themselves correctly assert, the legislature has set no maximum penalty for direct criminal contempt. Commonwealth v. Strickler, 481 Pa. 579, 590-91, 393 A.2d 313, 318-19 (1978); Commonwealth v. Falkenhan, 306 Pa. Super. 330, 339, 452 A.2d 750, 758 (1982); see S. Toll, Pennsylvania Crimes Code Annotated, § 107(c), Model Penal Code Comment, at 28; see also People v. Stollar, 31 Ill.2d 154, 157, 201 N.E.2d 97, 99 (1964). Because direct criminal contempt is neither a felony nor a misdemeanor, appellants' case is not a "court case", and is not within the scope of Rule 1100.