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John A. Swarrow v. Anna Marie Brasuhn

IN THE SUPERIOR COURT OF PENNSYLVANIA


November 13, 2012

JOHN A. SWARROW,
v.
ANNA MARIE BRASUHN,
APPELLEE APPEAL OF: DENNIS M. MAKEL, ESQUIRE AND C.E. KUROWSKI, ESQUIRE, APPELLANTS

Appeal from the Judgment Entered of June 23, 2011 In the Court of Common Pleas of Washington County Civil Division at No(s): 2008-9591

The opinion of the court was delivered by: Wecht, J.:

J. A24018-12

BEFORE: MUSMANNO, J., BOWES, J., and WECHT, J.

MEMORANDUM BY BOWES, J.

Motion to strike denied. Contempt order vacated. Fines remitted. Jurisdiction relinquished.

Judge Wecht files a Concurring Opinion.

J-A24018-12

2012 PA Super 247

IN THE SUPERIOR COURT OF PENNSYLVANIA

JOHN A. SWARROW, v. ANNA MARIE BRASUHN, Appellee APPEAL OF: DENNIS M. MAKEL, ESQUIRE AND C.E. KUROWSKI, ESQUIRE, Appellants

No. 1046 WDA 2011

Appeal from the Judgment Entered of June 23, 2011 In the Court of Common Pleas of Washington County Civil Division at No(s): 2008-9591

BEFORE: MUSMANNO, J., BOWES, J., and WECHT, J. CONCURRING OPINION BY WECHT, J.:

I join the majority's decision, and I concur fully with its reasoning. I write separately to reinforce our admonition to the trial court concerning its handling of this matter.

This case presents an illustration of what can transpire when a trial judge loses sight of what is important and fails to maintain "the impersonal authority of law." Mayberry v. Pennsylvania, 400 U.S. 455, 465 (1971) (citation omitted). In this case, the parties had engaged in a dispute over custody of their child. The parties resolved that dispute. Their attorneys were trying to finalize the settlement agreement, and get that agreement executed by the court. Instead of facilitating that resolution and bringing the matter to conclusion for the sake of the child involved, the trial court here amplified the conflict, and created additional and unnecessary costs and stresses, while at the same time inconveniencing litigants and counsel and unnecessarily and improperly adjudicating two lawyers in contempt.

As our Supreme Court has stated repeatedly and clearly, an adjudication of contempt is no trivial matter, and should be employed sparingly. "[I]t is clear that the guiding principle should be that 'only the least possible power adequate to the end proposed' should be used in contempt proceedings." Commonwealth v. Stevenson, 393 A.2d 386, 392 (Pa. 1978) (citing United States v. Wilson, 421 U.S. 309, 319 (1975) (quoting Anderson v. Dunn, 19 U.S. 204, 231 (1821))).

Trial courts are instructed to "first consider less severe remedies such as civil contempt before imposing summary criminal contempt. The judge should resort to criminal sanctions only after he determines, for good reason, that the civil remedy would be inappropriate..." Commonwealth v. Moody, 46 A.3d 765, 773 n.7 (Pa. Super. 2012), reargument denied (July 18, 2012) (quoting Commonwealth v. Garrison, 386 A.2d 971, 976 (Pa. 1978)). While the trial court here referred to its contempt finding as civil, that ruling was, as the majority correctly holds, criminal in nature. Majority Memorandum at 7-10. The trial court not only created a controversy where there was none, it also bypassed the less severe form of contempt, civil, in favor of the harsher, criminal contempt.*fn1

As the majority correctly observes, the record here bespeaks a marked level of animus, indeed, hostility. It may well be that counsel was responsible for some of this animus. But a trial judge does not have the luxury of wallowing in, or exacerbating, rancor. A trial judge must always maintain "the image of the impersonal authority of law." Mayberry, 400 U.S. at 465 (citation omitted). This is especially true in a child custody case, where emotion levels are high and where the objective is to get the parties' agreement finalized so that the lives of children may proceed outside the vortex of litigation.

Essentially, what the trial court did here is to create out of whole cloth a collateral dispute, that is, to pick a fight.*fn2 In such a fight, the trial judge possesses greater leverage by virtue of his judicial office. Indeed, the authority of the state is at his beck and call.*fn3 For the trial judge to employ that power in a spirit of rancor amounts to bullying. This cannot be countenanced. When a trial judge becomes "so 'personally embroiled' with a lawyer" that "the image of . . . impersonal authority" threatens to give way to something more suggestive of personal payback, the trial judge has a duty to recuse. Mayberry v. Pennsylvania, 400 U.S. at 465 (quoting Offutt v. United States, 348 U.S. 11, 17 (1954)).

It should go without saying that trial judges can, and indeed must, vindicate their authority where necessary. Disruptions in court cannot be tolerated. Here, however, there was no disruption in court whatsoever. The trial judge went out of his way to foment a problem that did not exist, or that did not need to exist. Ultimately, far from vindicating the court's authority, these actions served only to undermine it.


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