Appeal from the Judgment entered on May 28, 1986 in the Court of Common Pleas of Dauphin County, Civil Division, No. 3556-S-1985.
David R. Weyl, Ambler, for appellant.
Arthur K. Dils, Harrisburg, for Colbert, appellee.
Peter B. Foster, Harrisburg, for Gunning, appellee.
Wieand, Beck and Cercone, JJ. Beck, J., filed a dissenting opinion.
[ 368 Pa. Super. Page 30]
This matter arises out of the attempt by Oscar Gunning, a losing party in a civil action initially presided over by appellant, District Justice Michael A. Stewart, to determine the date on which District Justice Stewart entered a judgment against Gunning. This determination was crucial to Gunning's case as his appeal to the court of Common Pleas had been dismissed as having been taken out of time.
In pursuit of this factual determination, Gunning scheduled depositions in connection with his motion to reinstate his appeal and served subpoenas on District Justice Stewart and his secretary, Theresa Myers. Neither Ms. Myers nor the appellant appeared for the scheduled depositions on February 26, 1986. Thereafter, Gunning filed a Petition and Rule to Show Cause on appellant as to why he should not be held in civil contempt for failing to appear at the deposition. Appellant filed no response or answer to the Rule. Pursuant to this Rule, a hearing was scheduled for April 23, 1986 at 10:00 a.m. When appellant failed to appear at that hearing, a bench warrant was issued. He appeared before court later that day. At that time, the court found that appellant was not guilty of criminal contempt for failure to appear at the earlier scheduled hearing but found him to be in civil contempt. The court ordered District Justice Stewart to appear for deposition and fined him $200.00.
The sole issue on appeal is whether the lower court erred in imposing an unconditional fine in a civil contempt case.
The power to punish for contempt, including the power to inflict summary punishment, is a right inherent in the courts and is incidental to the grant of judicial power under the Constitution. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980). A court may exercise its civil contempt power to enforce compliance with its orders or decrees if its purpose is to compel performance, but not to inflict punishment. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Hopkinson v. Hopkinson, 323 Pa. Super. 404, 470 A.2d 981 (1984).
[ 368 Pa. Super. Page 31]
The characteristic that distinguishes civil from criminal contempt is the ability of the contemnor to purge himself of contempt by complying with the court's directive. In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975); Janet D. v. Carros, 240 Pa. Super. 291, 362 A.2d 1060 (1976). If he is given an opportunity to purge himself before imposition of punishment, the contempt order is civil in nature. If the purpose of the order is to punish despite an opportunity to purge, the order is criminal in nature.
The primary question to be addressed in this case is whether, in a civil contempt case, the trial court may impose an unconditional fine merely for the purpose of punishing the contemnor. We find that the trial court erred in this respect. While it is clear that a court may impose an unconditional fine in civil contempt, it may do so only if the purpose is not to punish but to compensate for losses ...