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05/21/97 LOUIS H. BEHR v. PATRICIA LYNN MACDONALD

May 21, 1997

LOUIS H. BEHR, APPELLANT
v.
PATRICIA LYNN MACDONALD BEHR A/K/A PATRICIA FRANKLIN, APPELLEE



Appeal from the Judgment of Superior Court entered on January 4, 1996 at No. 2972PHL94, affirming the Order entered on August 18, 1994 in the Court of Common Pleas of Philadelphia County, Family Division. JUDGE(S) BELOW: CCP - Honorable Allan L. Tereshko / SUPERIOR - JOHNSON, SAYLOR, CERCONE, JJ.

Before: Flaherty, C.j., And Zappala, Cappy, Castille, Nigro And Newman, JJ. Mr. Justice Nigro files a Dissenting opinion.

The opinion of the court was delivered by: Newman

MADAME JUSTICE NEWMAN

Louis H. Behr (Appellant) appeals from the Order of the Superior Court affirming his ten-day jail sentence imposed by the Court of Common Pleas of Philadelphia County for criminal contempt. *fn1 Because we hold that statutory criminal contempt does not extend to behavior that fails to disrupt courtroom proceedings, we reverse the Order of the Superior Court and vacate Appellant's judgment of sentence.

Appellant and his former wife Patricia Franklin were divorced in 1989. They have been involved in protracted litigation regarding the custody and support of their four children in the courts of Philadelphia County and Montgomery County, in Pennsylvania, and Kent County, Delaware. On August 18, 1994, Judge Allan Tereshko, Philadelphia Court of Common Pleas, Family Court Division (Family Court) held a hearing on various petitions and motions filed by the parties. Appellant appeared pro se, and counsel represented Mrs. Franklin. After hearing testimony, the court made the following decisions: (1) granted Mrs. Franklin's Petition for Special Relief seeking to enjoin the workers' compensation carrier of Appellant's former employer from disbursing any award of compensation to Appellant; (2) granted Mrs. Franklin's Petition for Contempt based on Appellant's failure to comply with the Family Court's Order dated April 6, 1992, directing Appellant to pay $1,283.88 for Mrs. Franklin's legal fees; (3) took under advisement Mrs. Franklin's Petition for Additional Counsel Fees; (4) denied Appellant's Motion for Recusal of Judge Tereshko; (5) denied Appellant's Petition to Proceed In Forma Pauperis ; and (6) denied Appellant's Petition to Rescind a Portion of the April 6, 1992 Order.

Our review of the record indicates that the hearing proceeded without incident. Although the record demonstrates that Appellant criticized the way the courts had handled his case, he conducted himself in a respectful manner. The Court was courteous to the Appellant and sustained his objections when appropriate. The hearing ended at 1:00 p.m., with the Court noting that further proceedings were scheduled for August 30, 1994.

After the hearing concluded, the Appellant, who suffers from a disability, walked out of the courtroom leaving two exhibit boxes behind for his daughter to remove. Shortly after that, an unidentified member of the courtroom staff informed Judge Tereshko that the word "DEATH" was written on the lid of a storage box that Appellant had brought to court. *fn2 Judge Tereshko reconvened the hearing fifteen minutes later to ask Appellant about the box, and then requested that counsel for Mrs. Franklin question him. Appellant testified that he received the box and lid from the photocopying company that prepared his exhibits. Although he was aware that the word "DEATH" appeared on the lid when he received the box, he thought nothing of it. He had brought the box to court on previous occasions without incident.

On the morning of the hearing, Appellant's daughter brought the storage box into the courtroom, and the court crier placed it under counsel's table, where it remained unseen by Judge Tereshko throughout the proceedings. *fn3 Appellant testified that the side of the lid where the word "DEATH" was written was not facing the bench during the hearing. He did not know if the word "DEATH" was pointed in Mrs. Franklin's direction because he did not set the box under the table. No witnesses testified that they noticed the word "DEATH" the lid of the box while the original hearing was taking place. When Appellant asked if he could open the box, the court recessed the proceedings so that a deputy sheriff could inspect the contents. When the hearing resumed, the deputy sheriff testified that the box contained briefs, petitions, other documents and a tape.

The court next allowed Mrs. Franklin's counsel to question Appellant on the apparently unrelated issue of whether Appellant had recently reported that a missing child was being kept at the Franklins' home. Judge Tereshko then held Appellant in criminal contempt of court, and ordered him incarcerated for ten days.

Appellant filed an immediate appeal to the Superior Court. He served six days of his ten-day jail sentence before the Superior Court issued a per curiam order staying his sentence and released Appellant pending its full consideration of his appeal. After a Superior Court panel in a 2 - 1 decision affirmed his sentence, Judge Tereshko issued a bench warrant for Appellant's arrest. On February 7, 1996, Appellant was arrested and again incarcerated. He filed an emergency petition in this Court to stay his sentence, which we granted on February 9, 1996. Accordingly, Appellant has already spent eight days in jail for contempt.

Courts use contempt powers to maintain effective control of proceedings. In Chambers v. Nasco, 501 U.S. 32, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991), the United States Supreme Court restated this traditional authority:

It has long been understood that certain implied powers must necessarily result to our Courts of Justice from the nature of their institution, powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others. For this reason, Courts of Justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates. These powers are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious Disposition of cases.

Id. at 43, 111 S. Ct. at 2132. *fn4 (citations and internal quotes omitted).

This Court has long upheld a court's power to maintain courtroom authority. In Commonwealth v. Africa, 466 Pa. 603, ...


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