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LINDA EICHENLAUB v. DANIEL W. EICHENLAUB (04/04/85)

filed: April 4, 1985.

LINDA EICHENLAUB
v.
DANIEL W. EICHENLAUB, APPELLANT



NO. 00566 PITTSBURGH 1983, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Family No. M291 of 1979

COUNSEL

Arnold H. Cantor, Pittsburgh, for appellant.

Lee Markovitz, Pittsburgh, for appellee.

Spaeth, President Judge, and Brosky and Olszewski, JJ.

Author: Spaeth

[ 340 Pa. Super. Page 554]

This is an appeal from judgment of sentence for indirect criminal contempt of a protection order entered under the Protection From Abuse Act.*fn1 The issue is whether the provision of the Act that on a charge of indirect criminal contempt "the defendant shall not have a right to a jury trial," 35 Pa.C.S. ยง 10190, violates appellant's rights under the United States and Pennsylvania Constitutions. We hold that it does not and therefore affirm.

Appellant married appellee on October 5, 1968. The couple had three children. On May 10, 1979, appellee filed a petition for a protection order under the Protection From Abuse Act, supra, alleging that appellant had abused her and the children. (R. at 1)*fn2 On May 17, 1979, the trial court ordered that appellant be excluded from the marital home for thirty days and that he refrain from abusing appellee and the children. (R. at 3) On January 18, 1982, appellee filed a second petition for a protection order, alleging that appellant had assaulted her and threatened her life. (R. at 4). After hearing, the trial court, on February 17, 1982, ordered that appellant be excluded from

[ 340 Pa. Super. Page 555]

    the marital home for one year and that he refrain from abusing appellee and the children. (R. at 8)

On June 23, 1982, appellee filed the first of four allegations that appellant was in contempt of the trial court's second protection order. Appellee alleged that appellant had returned to the marital residence and again assaulted her. (R. at 11) After hearing, at which appellant pleaded guilty, the trial court sentenced him to 90 days probation and a $250 fine. (Slip op. of tr. ct. at 3) On August 4, 1982, appellee filed her second contempt allegation, alleging that appellant had threatened her life. (R. at 13) In lieu of a hearing, the parties, on September 1, 1982, agreed to a consent order by the terms of which appellant agreed that he would not return to the marital home for any reason, and that he would undergo psychiatric counseling, the results of which he would report to the court within 90 days. (R. at 15) Appellee apparently filed her third contempt allegation the following month, with appellant filing a cross allegation. The trial court dismissed both allegations, admonishing the parties to comply strictly with the terms of the September 1, 1982, consent order. (Slip op. of tr. ct. at 3-4) On April 2, 1983, appellee filed her fourth contempt allegation; it arose from an incident earlier that day. According to appellee's testimony at the contempt hearing, on April 14, 1983, appellant waited in the driveway of the marital residence for her to return from work. When she returned, at 3:00 a.m., he beat her. She sustained two black eyes, bruises to her face, and a fractured sternum. Her injuries required hospitalization for six days, during which time appellant continued to threaten her. (N.T., 4/14/83 at 38-48)

The issue before us arises because at the start of the hearing on appellee's fourth contempt allegation, the trial court denied appellant's motion for trial by jury. (R. at 18, N.T. 4/14/83 at 12) At the conclusion of the hearing, the court found appellant guilty of indirect criminal contempt, and sentenced him to ninety days in the county jail. This appeal followed.

Section 10190 of the Protection from Abuse ...


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