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KERRY SMITH v. SCOTT MASON AND HEALTH CARE HOUSEKEEPING SYSTEMS (06/01/84)

filed: June 1, 1984.

KERRY SMITH
v.
SCOTT MASON AND HEALTH CARE HOUSEKEEPING SYSTEMS, INC. V. EILEEN CARR AND RAYMOND J. MOORE AND THOMAS J. SEMINACK V. ROBERT REED, AND RAYMOND J. MOORE. APPEAL OF JOHN M. CORCORAN



No. 1530 PHILA. 1982, Appeal from the Order in the Court of Common Pleas of Philadelphia County, Civil No. 2238 March Term, 1980

COUNSEL

Harry A. Short, Jr., Philadelphia, for appellant.

Spaeth, President Judge, and Beck and Hoffman, JJ.

Author: Spaeth

[ 328 Pa. Super. Page 316]

This is an appeal from an order holding appellant in contempt of court and imposing a fine of $100. Appellant argues that the evidence of contempt was insufficient and that he was denied adequate procedural safeguards. We agree with appellant that the evidence was insufficient. We therefore reverse, without reaching appellant's procedural argument.

Appellant is an attorney. The trial judge summarily held him in contempt of court at a pre-trial settlement conference. The proceedings at the conference were not recorded and we therefore do not have a transcript. Appellant does not argue, however, that the absence of a transcript has deprived him of a meaningful appeal. Rather, he has attached to his brief an affidavit stating the relevant facts, and a supplemental brief filed on behalf of the trial judge states that it does not dispute the affidavit. In these circumstances, we have an "equivalent picture" of what occurred in the trial court.*fn1 See Nemeth v. Nemeth, 306 Pa. Super. 47, 451 A.2d 1384 (1982) (court had "equivalent picture" of hearing when appellant's counsel was same as counsel below and gave account of hearing); Commonwealth v. Homsher, 264 Pa. Super. 271, 399 A.2d 772 (1979) (effective appellate review requires transcript or "equivalent picture" of proceedings below).

[ 328 Pa. Super. Page 317]

The facts as they thus appear are as follows: By letter dated September 23, 1981, the trial judge advised appellant and other counsel in the underlying case that a settlement conference was scheduled for October 6, 1981. This letter directed that counsel was to come to the conference with authority to settle the case (or bring someone with authority) and if unable to do this, notify the judge two days before the conference. By letter dated October 6, 1981, the conference was rescheduled for November 19, 1981. This letter contained the same directive regarding authority to settle. By letter dated March 25, 1982, a second pre-trial conference was scheduled for May 10, 1982. This letter made no reference to counsel coming with authority to settle. At the conference on May 10, 1982, after a brief discussion of the parties' liabilities, appellant told the trial judge that no offer was to be presented on behalf of his client, and that the claims adjuster who was handling the case on behalf of the insurance carrier was in New York and available by telephone. Appellant had notified the claims adjuster of the conference and had been assured that the claims adjuster would be available for a telephone conference. The trial judge thereupon adjudicated appellant in contempt and imposed a fine of $100. Apparently the conference was then ended without any telephone call to the adjuster being placed. Trial Court Op. at 6.

Although the trial judge characterized his order as an order of civil contempt, we are not bound by this characterization. It is clear from the circumstances surrounding the entry of the order that it was an order of criminal contempt. The purpose of the fine was to punish appellant for not following the judge's directive, and appellant could not purge himself of contempt and thereby avoid paying the fine by complying with the directive. See Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980). In appraising the sufficiency of the evidence, therefore, we shall ask whether it proved criminal contempt.

[ 328 Pa. Super. Page 318]

Under 42 Pa.C.S. ยง 4131,*fn2 a court may impose a summary punishment for contempt of court in cases involving:

(1) The official misconduct of the officers of such courts respectively.

(2) Disobedience or neglect by officers, parties, jurors or witnesses of or to the ...


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