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MARJILOU VITO v. SALVATORE VITO (12/13/88)

filed: December 13, 1988.

MARJILOU VITO, APPELLEE,
v.
SALVATORE VITO, APPELLANT



Appeal from Order of the Court of Common Pleas, Civil Division, of Monroe County, No. 68-DR-1987

COUNSEL

Robert M. Rosenblum, Stroudsburg, for appellant.

Wieand, McEwen and Melinson, JJ.

Author: Wieand

[ 380 Pa. Super. Page 259]

Salvatore Vito was found guilty of contempt for violating an order entered pursuant to the Protection From Abuse Act of October 7, 1976, P.L. 1090, No. 218, 35 P.S. ยง 10181 et seq. He was sentenced to serve a six month period of probation upon the following conditions:

1. You shall undergo an inpatient evaluation for drug and alcohol abuse at the Marworth Treatment Center in Waverly, Pennsylvania.

2. You shall refrain from any use of controlled substance or alcohol during the period of this probation. You shall be subject to random urinalysis by the Monroe County Probation Department to verify your compliance with that term of probation.

You are further directed to supply the Monroe County Probation Department with a schedule of your activities each week in advance, and you are to comply with any request they make for random urinalysis.

On direct appeal, Vito argues that the trial court refused to recognize that he was being tried for a criminal offense and accord to him the procedural safeguards accompanying such a proceeding.*fn1 We are constrained to agree. Therefore, we reverse and remand for a new trial.

[ 380 Pa. Super. Page 260]

The Supreme Court of the United States discussed the difference between civil and criminal contempt in Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988) and held that the nature of the proceedings must be determined "from an examination of the character of the relief itself." Id. at , 108 S.Ct. at 1432, 99 L.Ed.2d at 734.

The Court said:

The question of how a court determines whether to classify the relief imposed in a given proceeding as civil or criminal in nature, for the purposes of applying the Due Process Clause and other provisions of the Constitution, is one of long standing, and its principles have been settled at least in their broad outlines for many decades. When a State's proceedings are involved, state law provides strong guidance about whether or not the State is exercising its authority "in a non-punitive, non-criminal manner," and one who challenges the State's classification of the relief imposed as "civil" or "criminal" may be required to show "the clearest proof" that it is not correct as a matter of federal law. Allen v. Illinois, 478 U.S. 364, 368-369 [106 S.Ct. 2988, 2992, 92 L.Ed.2d 296] (1986). Nonetheless, if such a challenge is substantiated, then the labels affixed either to the proceeding or to the relief imposed under state law are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law. Ibid. This is particularly so in the codified laws of contempt, where the "civil" and "criminal" labels of the law have become increasingly blurred.

[ 380 Pa. Super. Page 261]

Instead, the critical features are the substance of the proceeding and the character of the relief that the proceeding will afford. "If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 [31 S.Ct. 492, 498, 55 L.Ed. 797] (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if "the defendant stands committed unless and until he performs the affirmative act required by the court's order," and is punitive if "the sentence is limited to imprisonment for a definite period." Id., at 442 [31 S.Ct. at 498]. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order. These distinctions lead up to the fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. See, e.g., Gompers, supra, at 444 [31 S.Ct. at 499]; Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U.S. 42, 66 [45 S.Ct. 18, 20, 69 L.Ed. 162] (1924).

Id. at - , 108 S.Ct. at 1429-1430, 99 L.Ed.2d at 731-732 (footnotes omitted).

Pennsylvania courts have also recognized and adhered to this distinction. The case of In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975) provided the Pennsylvania Supreme Court an opportunity to review the distinction; and the Court responded by saying ...


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