filed: August 21, 1987.
CROZER-CHESTER MEDICAL CENTER, A PENNSYLVANIA NOT FOR PROFIT CORPORATION, AND REPRODUCTIVE HEALTH AND COUNSELING CENTER, A PENNSYLVANIA CORPORATION
THOMAS MAY, MIRIAM ANDREWS, JOAN E. ANDREWS, ROBERT E. MORAN AND MARY ANN MORAN. APPEAL OF GERALD LYNCH, ET AL., APPELLANTS
Appeal from the Order of the Court of Common Pleas, Civil Division, of Delaware County at No. 82-3262.
Joseph D. Branca, Aston, for appellants.
Donald T. Petrosa, Media, for Crozer-Chester, appellee.
Donald A. Browns, Media, for Reproductive Health, appellee.
Popovich, Johnson and Hester, JJ.
[ 366 Pa. Super. Page 267]
This is an appeal from the "Adjudication Of Civil Contempt" entered by the Court of Common Pleas of Delaware County on August 25, 1986, (later reduced to judgment) against forty-eight (48) defendants/appellants.*fn1 We affirm.
This case stems from a decree nisi entered by the lower court on February 10, 1984, enjoining the five individuals whose names appear in the caption of this case and "all others acting in concert with them" or "otherwise hav[ing] reasonable notice" of the court's decree precluding, in essence, entry onto or remaining upon the premises of the plaintiffs (Crozer-Chester Medical Center and Reproductive Health and Counseling Center) for the purpose of "interfering or accosting individuals seeking services" from the plaintiffs, and procuring others to do the same. The decree nisi was made final following the dismissal of exceptions on November 9, 1984. An appeal to Superior Court resulted in an affirmance of the injunction in its entirety.
[ 366 Pa. Super. Page 268]
On March 29, 1986, counsel for the plaintiffs appeared in court and alleged that the defendants, whose names appear in footnote 1,
The Delaware County Sheriff's Office was called . . . [and t]he Defendants were read the injunction n and
[ 366 Pa. Super. Page 269]
refused to leave. They had to be arrested and removed from the premises.
Based on the aforesaid, which was asserted to be in violation of the court's February 10th decree, counsel for the plaintiffs orally "filed" a petition for contempt against the defendants and asked that it be made returnable from the bench. The court did so and made the rule returnable for April 3, 1986.
Hearings were conducted over a period of two months (i.e., April 3, 11 & May 16, 27, 28 & 29 of 1986), at the conclusion of which the court adjudged the forty-eight defendants named in footnote 1 to be in civil contempt of his February 10, 1984 decree, made final on November 9, 1984, by their conduct on the grounds of the plaintiffs on March 29, 1986.*fn3 This timely appeal followed.
[ 366 Pa. Super. Page 270]
We note at the outset the appealability of the order in question given the inclusion of sanctions (in the form of a pecuniary penalty) in the court's contempt order. See Schnabel Associates, Inc. v. Building & Construction Trades Council of Philadelphia and Vicinity, AFL-CIO, 338 Pa. Super. 376, 487 A.2d 1327 (1985).
The defendants raise six (6) issues for our consideration which, having been preserved by proffering them in the court below, will be discussed seriatim.
First, the defendants complain that, because they were neither named parties in the injunction nor shown to have acted in concert with the five named parties whose names appear on the face of the injunction, the court erred in holding them in contempt.
The law is quite clear that:
[ 366 Pa. Super. Page 271]
At approximately 9:45 a.m., Frank Mitarantonda, Chief Deputy for the Delaware County Sheriff's Department, arrived on the scene, which, as described by one of the Deputy Sheriffs, was still pure "bedlam". After discussing with the other police personnel on the site as to what to do, Chief Deputy Mitarantonda, sometime between 11:00-11:30 a.m., read the court's injunction, save for point 9, over a loudspeaker (with a 100 watt amplifier) resting atop a police vehicle situated about 25-40 yards away from the RHCC building.
When those present and in ear-shot of the loudspeaker refused to leave peaceably, they were arrested and taken to the police station, as was the earlier group, and processed for arrest. And, like the former group of 19 or so pro-lifers, this second group also gave their names and addresses to the police. (See Exhibit P-14)
We conclude that the defendants had actual knowledge of the court order, since it was read to them and orally informed of the same by Deputy Sheriff Masho. Despite this, the defendants acted in concert or combination with others to prevent or interfere with the operation of the plaintiffs' facility. See Neshaminy, supra.
The second issue raised by the defendants concerns the claim that their privilege against self-incrimination was violated by comment upon, or consideration of, their failure to testify.
The short-hand response to the argument made is, initially, that the hearings related to whether the defendants were in civil contempt, it being the objective of the court below to assure compliance with its order entered "'primarily for the benefit of a private party.'" Rulli v. Dunn, 337 Pa. Super. 613, 616, 487 A.2d 430, 431 (1985), citing Brocker v. Brocker, 429 Pa. 513, 522, 241 A.2d 336, 340 (1968). Such being the case, "while a defendant in a civil case may invoke the privilege [of the Fifth Amendment against self-incrimination] and it may not be used against him in any way in a subsequent criminal prosecution, the court in the civil case may draw any adverse inference
[ 366 Pa. Super. Page 273]
which is reasonable from the assertion of the privilege." City of Philadelphia v. Kenny, 28 Pa. Commw. 531, 540-41, 369 A.2d 1343, 1349 (1977), cert. denied, 434 U.S. 923, 98 S.Ct. 401, 54 L.Ed.2d 281 (1977) (Emphasis in original).
The defendants' third issue relates to the allegation that the plaintiffs failed to give them written notice of the charges lodged against them, and that these same plaintiffs failed to specify the legal nature of the contempt charge.
It is beyond cavil that "formal service of the order upon the alleged violators is not necessary prior to a contempt adjudication, as long as the parties had actual knowledge of the order." Neshaminy, supra, 332 Pa. Super. at 470, 481 A.2d at 883.
Instantly, Deputy Sheriff Masho informed the first nineteen (19) to be arrested around 9:00 a.m., after forcing their way into the RHCC building, that they were in violation of a court injunction and would have to leave the premises or face arrest. Knowledge of this communique is evidenced from the Deputy Sheriff's reference to members of the pro-lifers answering back that they knew nothing about any injunction, and they were not leaving because killings were taking place on the premises.
The remaining arrestees/defendants were read the injunction over a loudspeaker by Chief Deputy Mitarantonda, and still the pro-lifers had to be physically removed from the grounds after being asked to disperse or face arrest. Thus, we find, in light of the record evidence on the matter of notice, that the defendants were adequately advised of the existence of a court order prohibiting their presence on the plaintiffs' property for the purposes exhibited by their obstreperous behavior. Accordingly, the defendants will not be heard to plead ignorance of the order or lack of notice of its existence. To so hold would be to take a myopic view of the evidence to the contrary.
As for the defendants' fourth argument that the five essential elements to an adjudication of contempt were not being adhered to, i.e., (1) a rule to show cause why attachment
[ 366 Pa. Super. Page 274]
should not issue; (2) an answer and hearing; (3) a rule absolute (arrest); (4) a hearing on the contempt citation; and (5) an adjudication of contempt, we disagree.
As noted by the Court in Rouse Philadelphia Inc. v. Ad Hoc '78, et al., 274 Pa. Super. 54, 417 A.2d 1248 (1979), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980), the five-step procedure is not necessary in those cases where the contempt proceedings are predicated upon the violation of an order which was served on the contemnor and entered after a full hearing on the merits. When this occurs, contempt proceedings may be commenced by attachment, and due process requires no more than notice be given of the alleged contravention and the opportunity to explain one's defense.
Instantly, the contemnors were given notice as to the charges (i.e., by means of oral confirmation of being in contempt of a court order/injunction by police personnel on March 29, 1986); they were given timely notice and opportunity to answer and defend during the six days of hearings; and the proceedings are determined by this Court to have been fair and impartial. This is all that is required under the law, and no deviation having taken place herein as to those procedural matters requires that we deny the defendants' due process complaint. See Neshaminy, supra.
The defendants' two remaining issues, i.e., the plaintiffs' alleged deliberate violation of the court's sequestration order during the hearings and an assault on the sufficiency of the evidence, are not meritorious.
As to the purported intentional violation of the sequestration order by two of the numerous witnesses who testified on the notice element of the injunction to the plaintiffs, suffice it to say that the evidence of contempt was overwhelming, and, thus, any possible effect a deviation of the sequestration order could have had on the outcome of the case is de minimus. Cf. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).