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decided: November 21, 1984.


Original Jurisdiction in case of Commonwealth of Pennsylvania ex rel. Reverend D. Douglas Roth v. Charles J. Kozakiewicz, Warden of the Allegheny County Jail.


Thomas A. Crawford, Jr., for petitioner.

Roger C. Wiegand, with him, Kenneth C. Kettering, Reed, Smith, Shaw & McClay, for intervenor, Bishop Kenneth R. May etc.

Judges Craig and Barry. Opinion by Judge Craig.

Author: Craig

[ 86 Pa. Commw. Page 461]

In these habeas corpus proceedings, this court must consider whether an equity court may use a conditional incarceration commitment as a sanction to enforce a preliminary injunction which bars a church pastor from functioning in a particular church, pursuant to the court's decision that his denomination has excluded him under its rules -- or whether that sanction should be negated by releasing the defendant by habeas corpus proceedings.

The Court of Common Pleas of Allegheny County, by Judge Narick, after holding a hearing in Western Pennsylvania -- West Virginia Synod of the Lutheran Church in America v. D. Douglas Roth, No. GD 84-19518, an equity suit by the Synod as plaintiff, issued a preliminary injunction ordering the defendant, Reverend D. Douglas Roth, (1) to desist from performing any pastoral functions at the Trinity Evangelical Lutheran Church or any other church in that denomination, and (2) not to interfere directly or indirectly with the performance of pastoral functions at that church by other pastors designated to perform them by the Bishop of the Synod. After the defendant nevertheless appeared in the pulpit of that church on the following Sunday, and the pastor designated to appear by the Synod was excluded, Judge Narick issued a rule for contempt, held a hearing on the rule, made the rule absolute, issued an attachment for a hearing on adjudication of contempt, held that adjudication hearing, and adjudicated the defendant as being in contempt of the injunction. Accordingly, the judge committed the defendant to the Allegheny County Jail for a maximum of ninety days, but expressly stated that the commitment shall cease on the moment of compliance with the injunction, to consist of the defendant appearing before the court to promise that he

[ 86 Pa. Commw. Page 462]

    will desist from performance of pastoral functions, that he will not interfere directly or indirectly in such performance by others designated by the Synod, and that he will not enter the premises of the church without the consent of the Synod. In view of the rather unpersuasive claim that the defendant's appearance in the pulpit was merely to make a "statement," rather than to perform pastoral functions, the requirement that the defendant confirm his obedience by remaining off the premises was apparently included to avoid ambiguity and contentiousness. (The contempt order also imposed a fine on the defendant, but that matter is not involved in this habeas corpus proceeding.)

At the outset, we definitely conclude that the described order is a civil contempt order, not one sounding in criminal contempt, because it does not impose imprisonment as retribution for past disobedience but terminates the conditional jail commitment upon a simple expression of willingness to comply with the decree unqualifiedly. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980); In re Martorano, 464 Pa. 66, 77-79, 346 A.2d 2, 27-29 (1975).*fn1

The defendant did not file an appeal but instead presented a petition for writ of habeas corpus to the Superior Court. The Superior Court, noting that this court, in addition to possessing habeas corpus jurisdiction under 42 Pa. C.S. § 6502(a), also would have jurisdiction over any appeal in this nonprofit corporation case, 42 Pa. C.S. 762(a)(5), transferred the habeas

[ 86 Pa. Commw. Page 463]

    corpus petition proceedings to us to assure a unitary approach to the subject matter.

This court promptly issued to the warden having custody of the defendant, not the writ itself, but a rule to show cause why it should not be issued, pursuant to 42 Pa. C.S. § 6504.

On the return day, the warden presented the equity court's commitment as his basis for having ...

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