A recent criminal case addressed, in part, an issue we saw in the case of Elonis v. United StatesThe Elonis case went to the U.S. Supreme Court which ultimately reversed the criminal conviction of a man based on statutory construction grounds that his Facebook postings did not offer the requisite mental intent to threaten the victim(s). The Supreme Court’s opinion did not  address any First Amendment rights, however.

The case of Commonwealth v. Lambert, involved a Protection from Abuse Order entered against Lambert, the victim’s ex-boyfriend.  Interestingly, and likely an insight into the voluminous use of social media by Lambert, was the specific PFA Order instruction that he shall refrain from posting “any remark(s) and/or images regarding Plaintiff, on any social network(s), including, but [not] limited to, Facebook, Myspace, Twitter, or any other electronic networks.” In other words, he was not permitted to post anything to social media pertaining to his ex-girlfriend. It should be noted that a Protection from Abuse Order restricts a perpetrator from having direct or indirect contact with a victim. If they do have contact, they could be subject to an Indirect Criminal Contempt.  PFA Orders are civil restraining orders to protect a victim, but they have criminal repercussions: a violation – either verbally, in writing, or physically – will land someone in jail.

With that context in mind, we look at what Lambert did to violate the PFA Order. A day after the Order was entered, he posted a series of Facebook comments in which he does not name his ex-girlfriend, but that she was clearly the subject of the posts. As the Superior Court points out, Trial Courts need to consider the context of the violation and “temporal proximity” of the statements. Perhaps if Lambert had not made his posts a day after he was found to have abused his ex-girlfriend, the context and temporal proximity would have led the court to a different interpretation. The posts were not actually threatening or outwardly menacing (though the victim could certainly feel otherwise), but, as the Court considered, the posts were about the victimThey were discovered by the ex-girlfriend when she went to his Facebook page – she testified that she regularly checks the page for her own knowledge since he is such a voracious social media user that if he was angry or having mental health issues she would have notice of them before risking an interaction with him.

The victim let her local police know about the postings; they contacted the District Attorney’s office, who then initiated the contempt action. He was subsequently found guilty of contempt. That conviction led to the appeal by Lambert as to whether his indirect criminal contempt conviction was a violation of his First Amendment rights to free speech and whether the lack of wrongful intent (i.e. the posts were not threats) should have led to acquittal.

The main issue the Superior Court considered was the First Amendment claim. The Court’s opinion on that issue can be summarized with concept that the PFA Order is contact-based not content-based.  In other words, the PFA does not restrict speech so much as it restricts who the speech is directed at.  This is an important distinctions since restrictions on content must be strictly scrutinized.  Here, however, the contact was – directly or indirectly – made to the victim through Lambert’s public (likely another factor) Facebook profile. By making statements about the victim on a public profile where she could reasonably be exposed to them, Lambert was, effectively, attempting to contact the victim.

As a consequence, his conviction was upheld. His mental intent argument – which successfully led to the overturning of the Elonis conviction – was unsuccessful, as well, since his mental intent to threaten was not at issue; merely the attempt to contact mattered – whether it was to threaten or say he was sorry is immaterial. It should also be noted that the standard of proof for Elonis was the criminal justice system’s “beyond a reasonable doubt,” whereas the standard for finding abuse occurred is the lower “preponderance of the evidence” standard, though an indirect criminal contempt carries the “beyond a reasonable doubt” standard.

The broader implication is that Facebook and social media can be and will be considered forms of communication with the victim of a PFA. Shouting into the void of social media is not without consequences and, as Lambert demonstrates, the intent is secondary to the act of communicating.

We have written before about the subject of when and how a person can be in “contempt” of a court order. The word itself is riddled with often misunderstood meaning.  What could be worse than having a court decide that you are contemptible?

In the past week I have been called to court to prosecute or defend two of these cases. The first instance involved a request to find my client in contempt of a custody order.  The court where the matter was heard summons people to a non-record hearing where a hearing officer either recommends or denies a request for a finding of contempt.  The hearings are scheduled one per hour and if you don’t like the recommendation you take an appeal and have a record hearing before a judge.  The typical remedy of make up time for lost custody, an award of $118 in costs and a $200-300 fine makes it such that the game is not worth the candle.  I recommended to my client to do what he wanted as Step 1 would cost $1000-2000 in attorney time and an appeal would consume that much and more.  Who wins contempt proceedings?  Almost without exception it is the party who has superior financial resources. The litigant with $50,000 in net earnings has twice the staying power of the one making $25,000 and the remedies are pathetically weak.  So if you want to exhaust your opponent financially, spurious or weak contempt proceedings and appeals are a great way to win a custody war by attrition.

This week was a petition to enforce a prior court order in divorce. I had the enforcing side and the spouse had been held in contempt on at least two prior occasions for ignoring an order to sell a house. The most recent petition was filed after the house was finally sold while in foreclosure and the actual damages could be calculated and assessed as the hemorrhaging had ended.  The petition to assess the damages had been filed almost 90 days earlier but, the Respondent waited until the day before the hearing to retain counsel.  That begot a request for a continuance to prepare.

My newfound opposing counsel is resourceful. As I anticipated she came to court ready to challenge every paragraph of the petition and to assert defenses that might have had some traction two or more years ago but were effectively waived by the fact that they should have been raised in prior proceedings.  But in contempt court the rules work to the advantage of the party who plays games.  You see, they are entitled to a specific pleading setting forth how they violated the court’s orders.  Do they have to specify their defenses?  Not in Pennsylvania.  The joke is on the party seeking to enforce the order because the responding party needs to do nothing except appear in court on the appointed day. So in my case, we killed three hours of time while new counsel asserted defenses and demanded “proofs” never before articulated.  In candor, some of them had merit.  But whether the defense arguments were good, bad or indifferent, the party prosecuting the contempt never gets to see or hear about them until the case is called.  The cost of preparing a contempt hearing is always unnecessarily high because the person prosecuting the case has to conjure what the defenses might be.  Why force a party to explain why he or she disobeyed a court order or put in writing the reasons their conduct did not violate the order?  That would be efficient.

Then we get to the remedies. In under Section 3502(e)(7) a divorce setting you can at least claim attorneys fees.  But what about damages caused by a party’s refusal to comply with a court order?  You won’t find that remedy in the statute.  Support law is even worse.  Section 4345 allows 180 days of county subsidized imprisonment, a fine not to exceed $1,000 which is payable to the Court and up to a year of taxpayer funded probation.  You have to go to Section 4351(b) to get reasonable fees and costs and you have to prove the obligor did not have good cause for his failure to comply.  Once again, burden is not on the person with the duty to comply but on the person supposedly benefiting from the award.  Custody violations are covered by Section 5339 and impose the same standard as 42 Pa.C.S. 2503.  The action must be obdurate, vexatious, repetitive or in bad faith. Pa.R.C.P. 1915.12’s notice for hearing makes no reference to counsel fees as a remedy which, of course, creates a due process problem in its own right should an award be made.

The statute and the rules need to make it clear that failure to obey costs money and lots of it. The sanction of a fine or award for failure to comply should be monetary and have a temporal element. When the message gets out that failure costs $25 a day or $250 a day, people will pay attention.  Putting parents and divorcing people in prison or on parole only punishes the taxpayer without corresponding benefit to the innocent party victimized by the non-compliance.  But the starting point is to force litigants to frame the issues in writing before anyone enters the courthouse.  It takes what is supposed to be a pointed procedure and dulls it beyond recognition.

My colleague Aaron Weems reported this case on April 12. In the spirit of our U.S. Supreme Court, I offer the following concurrence with his blog but spirited dissent from what the Superior Court ruled.

In this published decision, a panel led by former President Judge Bender decides that so long as a reference is made in the pleading to custody modification it does not matter how the pleading is captioned. The problems presented by such precedent are worth some examination.

Contempt in custody is a statutory creature. 23 Pa.C.S. 5323(g). It offers five very specific remedies, none of which involve modification, In many Pennsylvania counties, the procedure for contempt is entirely different than that for custody modification. Scheduling is also handled in a very different way because the issues are typically quite limited.  The Court personnel who schedule these matters do not customarily read beyond the caption of the petition to gather what the petitioner really wants.  So it would be fairly common for a court administrator to direct a contempt petition to a hearing list where several matters are scheduled for disposition in a single day.  A custody modification requires a pretrial statement under Rule 1910.4-3.  Request modification under the contempt rules and you can skip that step.

The next question involves what goes on in the Courtroom. Most judges are going to look at a petition such as the one in this case and tell the petitioner that he or she will hear the contempt but not the modification. But pity the poor litigant who finds himself defending a contempt with a request for modification in a setting where the judge has the time to hear a custody case.  That litigant better walk into contempt court ready to try a modification and to cover the sixteen factors that must be evaluated under 23 Pa C.S. 5328. See S.W.D. v. S.A.R. 2014 Pa. Super. 146 (2014). In the case decided here, the case was remanded because the contempt court failed to cover all of the enumerated factors.

So what have we accomplished? A party can effectively sandbag the opponent if the trial judge permits it.  Both bench and bar face the prospect of stepping into court not knowing what issues will be tried on the date that a “contempt” hearing is scheduled.  Obviously a judge can stop this but it seems clear, that is not required.

The opinion correctly observes that the right to due process was not wholly violated. As the opinion notes, the request for a change in custody was written into the petition filed by the Father. But both the legislature and the judiciary have made it very clear that child custody matters require a full exposition of the facts before any modification is made.  The idea that modification can be “bootstrapped” into a petition premised upon violation of an existing order works against the very principles both the laws and the rules espouse to promote.  And the defense that contempt can be a springboard for a wholesale modification of custody because it is in the “best interests of the child” to do so, is not a strong one.  The opinion goes to some length to describe “signals” that the trial was going to be addressing modification and not merely a contempt petition. The difficulties presented, especially to pro se litigants by reliance on signals rather than the plain caption of the pleadings presents its own problems.  We have published volumes of statutes and rules intended to make clear what judicial avenue a court is taking.  We reported a decision in November, 2012 where a panel of the Superior Court affirmed the concept that modification was a distinct proceeding from contempt.  See P.H.D. v. R.H.D. The idea that a parent suffered a significant change in custody of a child where there are clearly marked legal procedures which distinguish contempt from modification and where there was a “right” way to go about it which was not heeded, creates a disturbing trend.  Moreover, it opens the door to more appeals where the Superior Court will be asked whether the notice of intention to change custody pursuant to contempt powers is “enough”.  This will be fertile ground for appeal but not productive ground. Ironically, from the opinion it appears that the contempt that had been filed was never disposed of, which begs the question of whether this case was appealable in the first instance.

In sum, we have an opinion where substance triumphed over procedure, leaving procedure badly mauled and wondering “What next?”

2016 Pa. Super. 40 (2/18/2016)



http://www.itsallaboutaging.com/blog/wp-content/uploads/2009/10/Its-All-About-Aging-Money-and-Handcuffs.jpg(Photo: Its All About Aging)

A glance at the Pennsylvania Support Code reveals the various enforcement mechanisms at the disposal of county Domestic Relations Offices. Rule 1910.20 offers remedies such as liens on real estate, reporting the delinquency to credit reporting agencies, and the initiation of a contempt action.Montgomery County recently announced a program to help encourage delinquent child support payors to come in and work on resolving their unpaid child support.  On May 29th, Montgomery County Sheriff Eileen Behr announced that the creation of a one-week “amnesty period” beginning June 10th for parents who are delinquent on their child support.

During the amnesty period, delinquent parents can to go to the Montgomery County Domestic Relations Office and set up a payment plan or other arrangements to pay down their support arrears and begin to regularly pay their monthly support obligation. 

The alternative is that the they will be arrested. If a party does not come into DRO to address their arrears, Sheriff Bahr has made it pretty clear: they are coming for you. Montgomery County Sheriff Deputies will be deployed in warrant teams to begin the process of serving bench warrants against individuals who have failed to pay their support. The Sheriff’s Department also has an anonymous tip line for information on delinquent parents.

These people have bench warrants due to DRO initating contempt actions against them for failing to pay child support and they never showed up to the hearing. Anyone familiar with this process knows the drill: the judge reads the list of cases and if the clerk indicates the paying party did not appear, a bench warrant is issued without further discussion.

Sheriff Behr stated that in cooperation with the Domestic Relations Office and Court of Common Pleas that the Sheriff’s office has “approximately 300 outstanding warrants that represent $5.7 million dollars in back child support.” The County takes things a step further by listing delinquent paying parents on its website.


Though not as creative as Lee County, Alabama who set up a sting operation offering Alabama/Auburn football tickets as bait, it is a way for Montgomery County to try to collect the more than $5.7 million in uncollected child support and hold delinquent parents accountable for their child support obligations.   

In a recent custody case, the Court denied Father contact with his children except for supervised visits while they underwent therapy.  Mother filed a contempt petition asserting that Father violated the custody order when he went to a school concert and videotaped both the Mother and the child while there.

The trial court correctly dismissed the contempt petition after Father testified that he understood no contact to mean no physical contact or conversation with the children. But, as sometimes happens, the Court used the contempt proceeding to “clarify” what the order was meant to accomplish.  Specifically, the trial judge told the Father that he could not appear at the children’s activities.  Father appealed and in P.H.D. v. R.R.D. the Superior Court vacated the



This is an important decision because trial court judges are frequently charged with the duty of managing unruly families who like to push the envelope when asserting their parental rights.  It may well be in this case that this was precisely what Father was trying to do.  In contempt court, however, the sole question is whether an explicit order was violated.  Period.  It is not an opportunity to “fix” an otherwise imperfect order by changing its terms.  And Superior Court judges Wecht, Bowes and Musmanno have served a purpose in reminding trial judges that if they want to amend an order, all parties need to have notice of the fact that an amendment is being considered so that they can prepare for such a hearing.  This is in accord with longstanding precedent that contempt court is not a place to modify custody orders.


Lest it appear that we are siding with Father, we note that there may well be a solid ground to amend the order.  For Father to have appeared at a recital and videotaped his child is clearly not a contempt of a no contact order.  But when we read that Father also videotaped Mother (assuming she was not part of the child’s performance) one questions whether the motivation was to record or to harass.  But if that is the issue, the P.H.D. case makes clear that everyone needs to have due process notice what the issue is so each party can prepare and bring witnesses who might show how the videotaping was either innocent or menacing.  If menacing perhaps a modification was in order.  We also note that the judge may have been trying to do the right thing but the opinion clearly points out that he skipped a procedural step (notice and hearing) which the principles of jurisprudence demand.


N.B. A curious event is reported in the case.  The guardian ad litem asserted a procedural irregularity on Father’s part that could have resulted in this appeal being quashed. Query: Is that part of a guardian’s role?


P.H.D. v. R.H.D. 2012 Pa. Superior. 246 (Nov. 13. 2012)

Jenice Armstrong of the Philadelphia Daily News wrote a column about Beth and Daniel Shak’s divorce. The Shaks divorce was finalized in 2009, but recently Mr. Shak filed a petition to enforce the parties’ settlement agreement and is seeking 65% of Mrs. Shak’s extensive (and expensive) shoe collection. Mr. Shak contends that this collection is an asset that was not disclosed as part of the parties’ property settlement agreement and that Mrs. Shak did not provide a “full and fair” disclosure of this collection nor did she list it in an inventory of her assets.

Continue Reading Expensive Shoe Collection Brings Divorced Couple Back to Court

Protection from Abuse (aka “PFA”) Orders are Pennsylvania’s version of what is colloquially known as the “restraining order.” What makes the PFA unusual is that it is a civil action, but has a criminal component to it, namely the punishment for violating the PFA: jail.

One of America’s longest standing legal traditions is that a defendant cannot be tried for the same crime twice. This concept is otherwise known as “double jeopardy.” Recently, a Superior Court decision addressed PFA’s and the application of double jeopardy to a defendant charged with several violations of a PFA during one episode.

The opinion for the case of Hill v. Randolph (707 MDA 2010) was filed on June 1, 2011. In this case, the defendant had physically assaulted the victim after accessing her house and in spite of repeated demands that he leave the premises. Eventually, the police were called and he was charged with two counts of violating the PFA; one count of accessing the residence and a second count for the physical assault. Mr. Randolph was ultimately found in contempt of the PFA and sentenced to six months in jail.

On appeal, Randolph argued that the Court did not follow the legislative intent of the PFA statute by depriving him of a jury trial and convicting him on multiple counts from a single incident.

The Superior Court could not disagree with Randolph more. In striking down his appeal, they found that there is nothing in the PFA statute precluding the trial court from allowing the prosecution of multiple contempt charges or the prosecution of the crimes as contempt rather than a general criminal prosecution.

Moreover, the PFA statute considered the Constitutional rights of defendants and allowed for the prosecutor, in this case the Lancaster County D.A., to utilize the PFA statute to quickly and legally send a violent offender to jail for in excess of six months.   Double jeopardy did not exist where multiple criminal actions occurred in a single episode, while the two crimes were two distinct acts and did not merge together for a single six month sentence, but stood on their own.

One of the great frustrations to both the law practitioner and the client comes after a court order is secured directing that a thing be done or not done, only to see the opposite occur.  The premise of the American judicial system is that when Court’s speak they do so with finality and it is the obligation of the litigants to “follow” the letter of the Court’s order.

Contempt of court is defined as conduct by a litigant or his attorney tending to bring the authority and administration of the law into disrespect.  It can include any conduct tending to embarrass or impede courts in the discharge of its duties.  Ballentine’s Law Dictionary 3d (Lawyer’s Cooperative, 1969).


To the layperson, the most identifiable form of contempt is misbehavior in the physical presence of the court.  This is termed “direct civil contempt” and usually results in a summary imposition of a fine or sometimes imprisonment at the time the Court is offended.


The more common form of contempt is “indirect civil contempt.”  This is typically a violation of a Court Order outside the immediate presence of the judge.  For example, a judge orders a litigant to do something or refrain from doing something (e.g., don’t take money out of your pension account; do not leave the jurisdiction) and the litigant does not comply.


Contempt is an extraordinary remedy and because it exposes the offending party to fines or punishment, including possible imprisonment, it is strictly interpreted.  “In order to sustain a finding of civil contempt the complainant must prove certain elements to have occurred based upon a preponderance of the evidence (which is to say more true than not).  It must be shown that the contemnor (the person alleged to have violated a court order) had notice of the order or decree he is said to have violated; that his act in not complying with the order or decree was volitional and that he acted or failed to act with wrongful intent.” Harcar v. Harcar 982 A.2d 1230, 1235 (Pa. Super. 2009). See Barrett v. Barrett 368 A.2d 616,621 (Pa. Supreme 1997); In Re Trust Under Deed of Jane E. McPeak 147 Montco L.P. 285 2010).


The “mere showing of noncompliance with a court order or even misconduct is never sufficient alone to prove civil contempt.” Lachat v. Hinchcliffe, 769 A.2d at 488. Accord Bold v. Bold, 939 A.2d 892,895 (Pa. Super. 2007); In re Contempt of Cullen, 849 A.2d 1207, 1210-11 (Pa. Super. 2004) app. den. 868 A.2d 1201 (Pa. Supreme 2005).


The order which is the subject of the contempt must be “definite, clear and specific” leaving no doubt or uncertainty in the mind of the contemnor alleged to have violated the order. Lachat, supra at 489.


Contempt issues most commonly arise in the context of support proceedings and are there governed by a statute 23 Pa. C.S. 4345.  Where willful failure to comply is determined to have occurred the court has statutory authority to imprison the contemnor for six months (or until the order for incarceration is complied with).  It is also authorized to place the contemnor on probation and to fine him/her up to $1,000.00. Many attorneys labor under the impression that they are also entitled to their attorneys fees for bringing a contempt petition.  This is a remedy under a separate statute, 23 Pa.C.S. 4351, where the law states that awards of legal fees and court costs may be made where the person owing support “did not have good cause for failing to make child support payments on time.”  A subsequent Supreme Court case, Bowser v. Blum, appears to have limited attorney awards to “special situations” Bowser, 807 A.2d 830 (Pa. Supreme 2002).


So contempt can be a tricky remedy meriting consideration before it is brought.