THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
[234 PA. CODE CH. 30]
Order Adopting Rules 30, 31, 32 and 39; No. 228; Doc. No. 2
[27 Pa.B. 5401] The Criminal Procedural Rules Committee has prepared a Final Report explaining the Supreme Court's promulgation of new Chapter 30, Rules 30 through 39, which establishes the procedures to implement 42 Pa.C.S. § 4137, 4138, and 4139 concerning criminal contempt powers of district justices, judges of the Pittsburgh Magistrates Court, and judges of the Traffic Court of Philadelphia. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this 1st day of October, 1997, upon the recommendation of the Criminal Procedural Rules Committee; this Recommendation having been published at 25 Pa.B. 12 (January 7, 1995) and 25 Pa.B. 1841 (May 13, 1995) and in the Pennsylvania Reporter (Atlantic Second Series Advance Sheets Vols. 650 and 656) before adoption, with a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that new Pa.Rs.Crim.P. 30, 31, 32, and 39 are hereby promulgated in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective October 1, 1998.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 30. PROCEDURES PROCEDURES IMPLEMENTING 42 Pa.C.S. §§ 4137, 4138, and 4139: CRIMINAL CONTEMPT POWERS OF DISTRICT JUSTICES, JUDGES OF THE PITTSBURGH MAGISTRATES COURT, AND JUDGES OF THE TRAFFIC COURT OF PHILADELPHIA Rule 30. Contempt Proceedings before District Justices, Pittsburgh Magistrates Court Judges, and Philadelphia Traffic Court Judges.
(A) Contempt in the Presence of the Court.
1. An issuing authority may summarily hold an individual in contempt for misbehavior in the presence of the court which obstructs the administration of justice, and, after affording the individual an opportunity to be heard, may impose a punishment of a fine or imprisonment as provided by law.
2. The issuing authority shall orally advise the contemnor of the right to appeal within 30 days for a trial de novo in the court of common pleas, and that:
a. any punishment shall be automatically stayed for a period of 30 days from the date of the imposition of the punishment;
b. if the contemnor files an appeal within the 30-day period, the stay will remain in effect pending disposition of the appeal;
c. when the punishment is imprisonment, the contemnor has the right to assistance of counsel for the purpose of the de novo hearing in the court of common pleas, and, if the contemnor is without financial resources or otherwise unable to employ counsel, counsel will be assigned as provided in Rule 316;
d. the contemnor must appear in the court of common pleas for the de novo hearing or the appeal may be dismissed; and
e. unless a notice of appeal is filed within the 30-day period, on the date specified by the issuing authority, the contemnor must:
(1) pay any fine imposed, and
(2) appear before the issuing authority for execution of any punishment of imprisonment.
3. The issuing authority shall issue a written order of contempt, in which the issuing authority shall:
a. set forth the facts of the case which constitute the contempt;
b. certify that the issuing authority saw or heard the conduct constituting the contempt, and that the contempt was committed in the actual presence of the issuing authority;
c. set forth the punishment imposed, and the date on which the contemnor is to pay any fine or to appear for the execution of any punishment of imprisonment; and
d. set forth the information specified in paragraph (A)2.
4. The order of contempt shall be signed by the issuing authority, and a copy shall be given to the contemnor.
(B) Contempt not in the Presence of the Court.
1. Institution of Proceedings
a. An issuing authority may institute contempt proceedings by either
(1) giving written notice to the alleged contemnor of the time, date, and place of the contempt hearing, or
(2) when deemed appropriate by the issuing authority, issuing an attachment by means of a warrant, whenever a person is alleged to have (i) failed to obey a subpoena issued by the issuing authority; (ii) failed to comply with an order of the issuing authority directing a defendant to pay fines and costs in accordance with an installment payment order; (iii) failed to comply with an order of a district justice directing a defendant to compensate a victim; (iv) violated an order issued pursuant to 23 Pa.C.S. § 6110; or (v) failed to comply with an order of an issuing authority in any case in which the issuing authority is by statute given the power to find the person in contempt.
b. If the proceedings are instituted by notice, the notice shall:
(1) specify the acts or omissions and the essential facts constituting the contempt charged;
(2) advise what the statutorily provided punishment may be for a finding of contempt in the case;
(3) if, in the event of a finding of contempt, there is a likelihood that the punishment will be imprisonment, advise the alleged contemnor of the right to the assistance of counsel and that counsel will be assigned pursuant to Rule 316 if the alleged contemnor is without financial resources or is otherwise unable to employ counsel; and
(4) advise the alleged contemnor that failure to appear at the hearing may result in the issuance of a warrant of arrest.
c. The notice shall be served in person or by both first class and certified mail, return receipt requested.
2. Hearing
a. The hearing shall be conducted in open court, and the alleged contemnor shall be given a reasonable opportunity to defend.
b. At the conclusion of the hearing:
(1) The issuing authority in open court shall announce the decision, and, upon a finding of contempt, impose punishment, if any.
(2) If the issuing authority finds contempt and imposes punishment, the issuing authority shall orally advise the contemnor of the right to appeal within 30 days for a trial de novo in the court of common pleas, and that:
(a) any punishment shall be automatically stayed for a period of 30 days from the date of the imposition of the punishment;
(b) if the contemnor files an appeal within the 30-day period, the stay will remain in effect until disposition of the appeal;
(c) when the punishment is imprisonment, that the contemnor has the right to assistance of counsel for the purpose of the de novo hearing in the court of common pleas and, if the contemnor is without financial resources or otherwise unable to employ counsel, that counsel will be assigned as provided in Rule 316;
(d) the contemnor must appear in the court of common pleas for the de novo hearing or the appeal may be dismissed; and
(e) unless a notice of appeal is filed within the 30-day period, on the date specified by the issuing authority, the contemnor must:
(i) pay any fine imposed, and
(ii) appear before the issuing authority for execution of any punishment of imprisonment.
(3) If the issuing authority finds contempt and imposes punishment, the issuing authority shall issue a written order of contempt setting forth:
(a) the facts of the case which constitute the contempt;
(b) the punishment imposed, and the date on which the contemnor is to pay any fine or to appear for the execution of any punishment of imprisonment; and
(c) the information specified in paragraph (B)2.b(2).
(4) The order of contempt shall be signed by the issuing authority, and a copy given to the contemnor.
(5) Whether or not the issuing authority finds an individual in contempt for failure to comply with an order to pay restitution or to pay fines and costs, the issuing authority may alter or amend the order. If the issuing authority alters or amends the order, the issuing authority shall:
(a) issue a written order setting forth the amendments and the reasons for the amendments, make the order a part of the transcript, and give a copy of the order to the defendant; and
(b) advise the defendant that the defendant has 30 days within which to file a notice of appeal of the altered or amended order pursuant to Rule 31.
c. The issuing authority shall not hold a contempt hearing in the absence of the alleged contemnor. If the alleged contemnor fails to appear for the contempt hearing, the issuing authority may continue the hearing and issue a warrant of arrest.
Official Note: Adopted October 1, 1997, effective October 1, 1998.
Comment This rule sets forth the procedures to implement 42 Pa.C.S. §§ 4137, 4138, and 4139 concerning contempt powers of the minor judiciary, as well as any other statutes subsequently enacted which would provide for findings of contempt by the minor judiciary. It is not intended to supplant the procedures set forth in 23 Pa.C.S. § 6113 concerning violations of protection from abuse orders.
The scope of the contempt powers of district justices, Pittsburgh Magistrates Court judges, and Philadelphia Traffic Court judges is governed by 42 Pa.C.S. §§ 4137, 4138, and 4139 respectively. Therefore, as used in this rule, ''issuing authority'' refers only to district justices, Pittsburgh Magistrates Court judges, and Philadelphia Traffic Court judges when acting within the scope of their contempt powers.
All contempt proceedings under this rule are to be entered on the issuing authority's miscellaneous docket, and a separate docket transcript for the contempt proceeding is to be prepared. If an appeal is taken, the issuing authority is required to forward the transcript and the contempt order to the clerk of courts. See Rule 31.
Paragraph (A) sets forth the procedures for handling contempt proceedings when the misbehavior is committed in the presence of the court and is obstructing the administration of justice. 42 Pa.C.S. §§ 4137(a)(1), 4138(a)(1), and 4139(a)(1). This type of contempt is commonly referred to as ''direct'' or ''summary'' contempt. The issuing authority may immediately impose punishment without a formal hearing because prompt action is necessary to maintain or restore order in the courtroom and to protect the authority and dignity of the court. Although immediate action is permitted in these cases, the alleged contemnor is ordinarily given an opportunity to be heard before the imposition of punishment. See Commonwealth v. Stevenson, 393 A.2d 386 (Pa. 1978).
Customarily, individuals are not held in summary contempt for misbehavior before the court without prior oral warning by the presiding judicial officer.
Paragraph (B) provides the procedures for instituting and conducting proceedings in all other cases of alleged contemptuous conduct subject to the minor judiciary's statutory contempt powers, which are commonly referred to as ''indirect criminal contempt'' proceedings.
Pursuant to 42 Pa.C.S. §§ 4137(a)(2),(3), (4), and (5), 4138(a)(2) and (3), and 4139(a)(2) and (3), only district justices have the power to impose punishment for contempt of court for failure to comply with an order directing a defendant to compensate a victim or an order issued pursuant to 23 Pa.C.S. § 6110. See paragraph (B)1.a.
''Indirect criminal contempt'' proceedings must be instituted either by serving the alleged contemnor with a notice of the contempt hearing, or by issuing an attachment in the form of a warrant. The alleged contemnor must be afforded the same due process protections that are normally provided in criminal proceedings, including notice of the charges, an opportunity to be heard and to present a defense, and counsel. See, e.g., Codispoti v. Pennsylvania, 418 U.S. 506 (1974), and Bloom v. Illinois, 391 U.S. 194 (1968).
When a warrant of arrest is executed under this rule, the alleged contemnor should be taken without unreasonable delay before the proper issuing authority.
Although 42 Pa.C.S. §§ 4137(a)(4), 4138(a)(3), and 4139(a)(3) permit an issuing authority to impose summary punishments for indirect criminal contempt when a defendant fails to comply with an order of the issuing authority directing the defendant to pay fines and costs in accordance with an installment payment order, nothing in this rule is intended to preclude an issuing authority from proceeding pursuant to Rule 85 (Default Procedures: Restitution, Fines, and Costs).
The Supreme Court in Commonwealth v. Abrams, 336 A.2d 308 (Pa. 1975) held that the right to counsel applies in cases of criminal contempt. See also Commonwealth v. Crawford, 352 A.2d 52 (Pa. 1976).
For the assignment of counsel, follow the Rule 316 procedures for summary cases.
For waiver of counsel, follow the Rule 318 procedures for proceedings before an issuing authority.
For the procedures for taking, perfecting, and handling an appeal from an order entered pursuant to this rule, see Rule 31.
If a contemnor defaults in the payment of a fine imposed as punishment for contempt pursuant to 42 Pa.C.S. §§ 4137(c), 4138(c), or 4139(c), the matter is to proceed as provided in Rule 32.
See Chapter 4000 concerning bail before a contempt hearing. See 42 Pa.C.S. § 4137(e) concerning a district justice's authority to set bail after an adjudication of contempt.
Paragraphs (A)2.e and (B)2.b(2)(e) require the issuing authority to set a date for the contemnor to pay any fine or to appear for execution of any punishment of imprisonment. This date should be at least 35 days from the date of the contempt proceeding to allow for the expiration of the 30-day automatic stay period and the 5-day period within which the clerk of courts is to serve a copy of the notice of appeal on the issuing authority. See Rule 31.
Paragraph (B)2.b(5) requires that the case be reviewed at the conclusion of a contempt hearing to determine whether the restitution order or the fines and costs installment order should be altered or amended, rather than scheduling another hearing. This review should be conducted whether or not the district justice finds an individual in contempt for failure to comply with an order to pay restitution, or whether or not the issuing authority finds an individual in contempt for failure to comply with an installment order to pay fines and costs. For the authority to alter or amend a restitution order, see 18 Pa.C.S. § 1106(c)(2)(iii).
Committee Explanatory Reports:
Final Report explaining the provisions of new Rule 30 published with the Court's Order at 27 Pa.B. 5405 (October 18, 1997).
Rule 31. Appeals from Contempt Adjudications by District Justices, Pittsburgh Magistrates Court Judges, or Philadelphia Traffic Court Judges.
(A) An appeal authorized by 42 Pa.C.S. §§ 4137(d), 4138(d), or 4139(d) of the action of an issuing authority in a contempt proceeding shall be perfected by filing a notice of appeal within 30 days after the action of the issuing authority with the clerk of courts and by appearing in the court of common pleas for the de novo hearing.
(B) In all cases, the punishment imposed for contempt shall be stayed for 30 days from the imposition of the punishment. If an appeal is filed within the 30-day period, the stay shall remain in effect pending disposition of the appeal.
(C) The notice of appeal shall contain the following information:
(1) the name and address of the appellant;
(2) the name and address of the issuing authority who heard the case;
(3) the magisterial district number where the case was heard;
(4) the date of the imposition of punishment;
(5) the punishment imposed;
(6) the type or amount of bail furnished to the issuing authority, if any; and
(7) the name and address of the attorney, if any, filing the notice of appeal.
(D) Within 5 days after the filing of the notice of appeal, the clerk of courts shall serve a copy either personally or by mail upon the issuing authority.
(E) The issuing authority shall, within 20 days after receipt of the notice of appeal, file with the clerk of courts:
(1) the transcript of the proceedings;
(2) either the notice of the hearing or a copy of the attachment;
(3) the contempt order; and
(4) any warrant of arrest.
(F) Upon the filing of the transcript and other papers by the issuing authority, the case shall be heard de novo by the appropriate division of the court of common pleas as the president judge shall direct. If the appellant fails to appear for the de novo hearing, the judge assigned to hear the matter may dismiss the appeal and enter judgment in the court of common pleas on the judgment of the issuing authority.
Official Note: Adopted October 1, 1997, effective October 1, 1998.
Comment This rule provides the procedures for taking an appeal from a finding of contempt by a district justice, a Pittsburgh Magistrates Court judge, or a Philadelphia Traffic Court judge.
As used in this rule, ''issuing authority'' refers only to district justices, Pittsburgh Magistrates Court judges, and Philadelphia Traffic Court judges when acting within the scope of their contempt powers. See 42 Pa.C.S. §§ 4137, 4138, and 4139.
Pursuant to paragraph (B), any punishment imposed for contempt will be automatically stayed for 30 days from the date of the imposition of the punishment, during which time a notice of appeal may be filed with the clerk of courts. To the extent that 42 Pa.C.S. §§ 4137(d), 4138(d), and 4139(d) are inconsistent with this rule, they are suspended by Rule 39 (Suspension of Acts of Assembly--Chapter 30).
If no notice of appeal is filed within the 30-day period following imposition of the punishment, Rule 30 requires the issuing authority to direct the contemnor on a date certain to pay any fine imposed or to appear for execution of any punishment of imprisonment.
See 42 Pa.C.S. § 4137(e) concerning the imposition of bail as a condition of release by a district justice.
Paragraph (F) makes it clear that the judge assigned to conduct the de novo hearing may dismiss an appeal of the action of an issuing authority in a contempt proceeding when the judge determines that the appellant is absent without cause from the de novo hearing. If the appeal is dismissed, the judge should enter judgment and order execution of any punishment imposed by the issuing authority.
Committee Explanatory Reports:
Final Report explaining the provisions of new Rule 31 published with the Court's Order at 27 Pa.B. 5405 (October 18, 1997).
Rule 32. Procedures Governing Defaults in Payment of Fine Imposed as Punishment For Contempt.
(A) If a contemnor defaults on the payment of a fine imposed as punishment for contempt pursuant to 42 Pa.C.S. §§ 4137(c), 4138(c), or 4139(c), the issuing authority shall notify the contemnor in person or by first class mail that within 10 days of the date on the default notice the contemnor must either:
(1) pay the amount due as ordered, or
(2) appear before the issuing authority to show cause why the contemnor should not be imprisoned for nonpayment as provided by law, or a warrant for the contemnor's arrest shall be issued.
(B) When the contemnor appears either in response to the paragraph (A)(2) notice or following an arrest with a warrant issued pursuant to paragraph (A), the issuing authority shall conduct a hearing to determine whether the contemnor is financially able to pay as ordered.
(1) Upon a determination that the defendant is financially able to pay as ordered, the issuing authority may impose imprisonment for nonpayment, as provided by law.
(2) Upon a determination that the contemnor is financially unable to pay as ordered, the issuing authority may order a schedule for installment payments.
(C) A contemnor may appeal an issuing authority's determination pursuant to this rule by filing a notice of appeal within 30 days of the issuing authority's order. The appeal shall proceed as provided in Rule 31.
Official Note: Adopted October 1, 1997, effective October 1, 1998.
Comment This rule provides the procedures governing defaults in the payment of fines imposed as punishment for contempt in proceedings before district justices, Pittsburgh Magistrates Court judges, and Philadelphia Traffic Court judges. See 42 Pa.C.S. §§ 4137(c), 4138(c), or 4139(c).
As used in this rule, ''issuing authority'' refers only to district justices, Pittsburgh Magistrates Court judges, and Philadelphia Traffic Court judges when acting within the scope of their contempt powers. See 42 Pa.C.S. §§ 4137, 4138, and 4139.
For contempt procedures generally, see Rule 30.
When a contemnor defaults on a payment of a fine, paragraph (A) requires the issuing authority to notify the contemnor of the default, and to provide the contemnor with an opportunity to either pay the amount due or appear within a 10-day period to show cause why the contemnor should not be imprisoned for nonpayment. If the contemnor fails to pay or appear, the issuing authority must issue a warrant for the arrest of the contemnor.
If the hearing on the default can not be held immediately, the issuing authority may set bail as provided in Chapter 4000.
This rule contemplates that when there has been an appeal pursuant to paragraph (C), the case would return to the issuing authority who presided at the default hearing for completion of the collection process.
Committee Explanatory Reports:
Final Report explaining the provisions of new Rule 32 published with the Court's Order at 27 Pa.B. 5405 (October 18, 1997).
Rule 39. Suspension of Acts of Assembly--Chapter 30.
The Act of June 15, 1994, P. L. 273, No. 45, § 1, 42 Pa.C.S. §§ 4137, 4138, and 4139, which provides, inter alia, that any punishment imposed for contempt will be ''automatically stayed for a period of 10 days from the date of the imposition of the punishment during which time an appeal of the action'' of a district justice, a Pittsburgh Magistrates Court judge, or a Philadelphia Traffic Court judge ''may be filed with the court of common pleas of the judicial district,'' and which is implemented by Rules 30, 31, and 32, is hereby suspended only insofar as it is inconsistent with the 30-day appeal period and 30-day automatic stay period set forth in Rule 31.
Official Note: Adopted October 1, 1997, effective October 1, 1998.
Committee Explanatory Reports:
Final Report explaining the provisions of new Rule 39 published with the Court's Order at 27 Pa.B. 5405 (October 18, 1997).
FINAL REPORT Procedures Implementing 42 Pa.C.S. §§ 4137, 4138, and 4139: Criminal Contempt Powers of District Justices, Judges of the Pittsburgh Magistrates Court, and Judges of the Traffic Court of Philadelphia
Introduction
On October 1, 1997, upon the recommendation of the Criminal Procedural Rules Committee, the Supreme Court adopted new Chapter 30 of the Rules of Criminal Procedure, which provides the procedures to implement 42 Pa.C.S. § 4137, 4138, and 4139 concerning criminal contempt powers of district justices, judges of the Pittsburgh Magistrates Court, and judges of the Traffic Court of Philadelphia. New Chapter 30 consists of new Rules of Criminal Procedure 30 (Contempt Proceedings Before District Justices, Pittsburgh Magistrates Court Judges, and Philadelphia Traffic Court Judges), 31 (Appeals From Contempt Adjudications by District Justices, Pittsburgh Magistrates Court Judges, and Philadelphia Traffic Court Judges), 32 (Procedures Governing Defaults in Payment of Fine Imposed as Punishment for Contempt), and 39 (Suspension of Acts of Assembly--Chapter 30). The new rules will become effective October 1, 1998. This Final Report highlights the Committee's considerations in formulating these new rules.1
Discussion
A. New Chapter 30: Organization and Definitions
The Committee reviewed the legislation providing for the new power of the minor judiciary to ''impose summary punishments for criminal contempts'' of their courts (42 Pa.C.S. §§ 4137(a), 4138(a), 4139(a)), and concluded that this new power is separate and distinct from the minor judiciary's jurisdiction in summary criminal cases as provided in 42 Pa.C.S. §§ 1143, 1321, and 1515. In view of this,the new rules governing the contempt powers of the minor judiciary have been incorporated into a new and separate chapter, Chapter 30 (Procedures Implementing 42 Pa.C.S. §§ 4137, 4138, and 4139: Criminal Contempt Powers of District Justices, Judges of the Pittsburgh Magistrates Court, and Judges of the Traffic Court of Philadelphia).
Throughout the new rules, the term ''issuing authority'' has been used to refer to those members of the minor judiciary whose contempt powers are governed by the new statute and the new rules. This usage is explained in the Comments to new Rules 30, 31, and 32.
B. New Rule 30. Contempt Proceedings before District Justices, Pittsburgh Magistrates Court Judges, and Philadelphia Traffic Court Judges.
1. Rule Title
Because this area of contempt is new, the title to new Rule 30 spells out exactly to whom it applies.
2. Organization of Rule
The general contempt statute gives the minor judiciary contempt powers in specific categories, and defines all these categories as criminal contempts.
(1) The first category involves cases in which there is misbehavior in the presence of the court which obstructs the administration of justice (42 Pa.C.S. §§ 4137(a)(1), 4138(a)(1), and 4139(a)(1)), i.e., direct criminal contempt, which may be summarily handled.
(2) The remaining categories all pertain to situations in which an individual fails to act as ordered by the issuing authority, but the disobedience to the order does not occur in the presence of the court (42 Pa.C.S. §§ 4137(a)(2)-(5), 4138(a)(2)(3), and 4139(a)(2)(3)), i.e., indirect criminal contempt. In these cases, the alleged contemnor must be afforded the same procedural safeguards afforded a defendant in a criminal proceeding.
With these distinctions in mind, new Rule 30 has been divided into two parts. Paragraph (A) sets forth the procedures when the contempt occurs in the presence of the court, and paragraph (B) sets forth the procedures when the contempt is not in the presence of the court. The paragraphs (A)1. and (B)1.a(2) enumerate the statutory categories to which the respective paragraphs apply. Because these rules will be used primarily by the minor judiciary, who generally have had little experience with the law relating to criminal contempt, there is a lengthy explanatory Comment which discusses the basic concepts of direct criminal contempt and indirect criminal contempt as set forth in paragraphs (A) and (B) respectively.
3. Paragraph (A)--Contempt in the Presence of the Court
Bearing in mind the ''summary'' nature of the contempt proceeding when the contempt is committed in the presence of the court, the Committee kept the procedures in paragraph (A) to a minimum. We discussed at length whether any due process rights are constitutionally required in these proceedings. After looking at the case law and Federal Rule of Criminal Procedure 42 (Criminal Contempt), the Committee concluded that paragraph (A)1. should only require the issuing authority to afford the alleged contemnor an opportunity to be heard before imposing a punishment, and that the Comment should include a provision to alert the issuing authorities that before finding an individual in direct contempt, it is customary to warn the individual that their behavior is contemptuous.
Paragraph (A)2.a-e enumerates the information which the issuing authority is to orally give the contemnor at the conclusion of the contempt proceeding concerning the right to appeal to the court of common pleas for a de novo hearing; the automatic stay of punishment during the appeal period; if an appeal is taken, the right to counsel when the punishment is imprisonment; and the date the contemnor is to appear for imposition of punishment if no appeal is taken. The authority for the automatic stay of the punishment, paragraph (A)2.a, b, and the appeal, paragraph (A)2, is derived from 42 Pa.C.S. §§ 4137(d), 4138(d), and 4139(d).
The issue of the right to counsel in these direct criminal contempt proceedings generated a great deal of discussion. The Committee ultimately concluded that the contemnor should be advised of the right to counsel for the purpose of the de novo hearing in the court of common pleas when the issuing authority has imposed a punishment of imprisonment. Paragraph (A)2.c.
Paragraph (A)2.e requires the issuing authority to inform the contemnor of the date on which the contemnor is to pay any fine or to appear for execution of any punishment of imprisonment if no appeal is filed within the 30-day appeal period. As explained in the Comment, this date should be at least 35 days from the date of the contempt proceeding to allow for the expiration of the 30-day appeal period and for the 5-day period within which the clerk of courts is to serve a copy of the notice of appeal on the issuing authority. See Rule 31(d).
Because proceedings at the minor judiciary level are not of record, paragraph (A)3 requires the issuing authority to issue a written order setting forth the facts of the case which constitute the contempt, certifying that the issuing authority saw or heard the conduct constituting the contempt and that the contempt was committed in the actual presence of the issuing authority. The written order also must set forth the punishment imposed, the date on which the contemnor is to pay any fine or to appear for the execution of any punishment of imprisonment, and the information specified in paragraph (A)2. Paragraph (A)4 requires the issuing authority to sign the order, and to give a copy to the contemnor.
The Comment includes an explanation of the administrative procedures implemented by the Administrative Office of Pennsylvania Courts for processing contempt proceedings. These cases are docketed as separate cases on the miscellaneous docket, with a separate docket transcript. The information for the docket transcript is entered into the computer, and a hard copy of the transcript is printed when there is an appeal.
4. Paragraph (B)--Contempt not in the Presence of the Court
Paragraph (B) sets forth the procedures for handling cases in which the minor judiciary have indirect criminal contempt powers.
Paragraph (B)1.a(2)(i)--(iv) enumerates the four statutory categories of summary criminal contempt authorized by 42 Pa.C.S. §§ 4137(a), 4138(a), and 4239(a).2 Because Pittsburgh Magistrates Court judges and Philadelphia Traffic Court judges only have contempt powers in two of the four categories of indirect criminal contempt--where the individual fails to obey a subpoena or fails to comply with an order directing a defendant to pay an installment payment order for fines and costs, 42 Pa.C.S. §§ 4138(a) and 4139(a), the Committee used the broader term ''issuing authority'' in paragraph (B)1.a(2)(i) and (ii). However, because only district justices are given the authority by the statute to find contempt in cases in which there is a failure to comply with a restitution order, we used the term ''district justice'' in paragraph (B)1.a(2)(iii). This distinction is also explained in the Comment. Finally, paragraph (B)1.a(2)(v) provides a catchall category to cover any other cases in which the issuing authority, by a statute other than 42 Pa.C.S. §§ 4137-4139, is given the power to find a person in contempt. See, e.g., 42 Pa.C.S.§ 1523(b).
Paragraph (B)1.a provides that indirect criminal contempt proceedings may be instituted either by notice of the hearing or, in the appropriate case, by issuing an attachment by means of a warrant.
(a) Contempt Hearing Notice, Service
Paragraph (B)1.b sets forth the contents of the contempt hearing notice, and paragraph (B)1.c provides that service may be accomplished either in person, or by both first class mail and certified mail, return receipt requested. In the latter method, the Committee agreed to require both types of mailing to provide a more reliable gauge of service.
In developing these service by mail procedures, the Committee noted that the criminal contempt proceeding is separate and distinct from the underlying case, and is being instituted by the notice required in paragraph (B)1.a(1). In view of this, the Committee agreed that the new rule should provide the minor judiciary with a means of ensuring adequate service, and looked to Chapter 50 for guidance. Under Chapter 50, summary criminal cases are instituted by personal service of the citation or mailing of the summons by certified or first class mail. See Rule 80 (Service). Rule 80 requires that, when a summons is served by first class mail, and the defendant fails to respond or appear, a second summons must be either personally served or mailed by certified mail. We also looked at the practicalities of service by mail. It has been the experience of the Committee members and others involved in the criminal justice system that there are occasions when certified mail is intentionally not accepted, but a first class mailing is not returned. In these cases, it has been generally accepted that there is a presumption that the notice was served. Therefore, based on these considerations, the Committee concluded that for summary criminal contempt proceedings, it is less onerous to require the dual mailing in every case, as long as the rule makes it clear that, if the certified mail is returned undelivered, and the first class mail is not returned, there is a presumption that the notice was served. In fact, we agreed that this dual service procedure is more expeditious than providing for the initial service to be by first class mail, followed by a second service requirement if the defendant fails to appear.
(b) Hearing
Paragraph (B)2.a requires that the hearing be conducted in open court, and that the alleged contemnor be given a reasonable opportunity to defend. At the conclusion of the hearing, the issuing authority is required to announce the decision, impose punishment if there is a finding of contempt, and orally advise the contemnor of his or her rights following the finding of contempt. Paragraphs (B)2.b(1) and (2). The issuing authority must issue a signed written order as provided in paragraphs (B)2.b(3) and (4).
Paragraph (B)2.b(5) permits the issuing authority, at the conclusion of a contempt hearing, to review an order for payment of fine and costs or restitution to determine whether the order should be amended or altered. The issuing authority should conduct this review whether or not the issuing authority finds the individual in contempt. This process is elaborated in the Comment.
(c) Hearings in the Defendant's Absence
The question of whether Rule 30 should specifically prohibit summary criminal contempt hearings in the defendant's absence was discussed by the Committee when the proposal was initially being developed. The Committee explored permitting contempt hearings in the alleged contemnor's absence, similar to the procedure in Rule 84 for summary criminal trials in the defendant's absence, and concluded that this procedure was inappropriate for contempt hearings and should not be permitted.
The Committee's decision was based on several factors. First, the members considered that holding a contempt hearing in the defendant's absence was inappropriate because, in the criminal contempt proceeding, where the court is making a determination whether the defendant disregarded the court's order and should be disciplined, the defendant should be present to answer the allegations. If a purpose of contempt is to vindicate the court's authority, then finding someone in contempt in absentia seemed an empty gesture. After all, the defendant has already allegedly ignored an order of the court, and failing to appear for the hearing is another incident of the defendant ignoring the court's authority. Second, the members determined that it was virtually impossible to devise adequate procedures to follow a hearing in absentia in view of (1) the statutorily required automatic stay of sentence immediately following the hearing during the time period for filing an appeal, and (2) the constitutional right to counsel if the sentence is imprisonment.
Agreeing that these factors outweighed any potential benefit that expediting the matter by holding the hearing in the defendant's absence would have, the Committee added paragraph (B)2.c, which specifically prohibits in absentia hearings, and provides that, if the alleged contemnor fails to appear, the issuing authority may continue the hearing and issue a warrant of arrest.
5. Comment Provisions
In addition to the Comment provisions discussed above, the Comment refers to the statutory bail provision, 42 Pa.C.S. § 4137(e), concerning procedures for the setting of bail after adjudication of contempt, which applies only to district justices. The Comment also refers to Chapter 4000 of the Criminal Rules for the procedures for setting bail before a contempt hearing takes place, a process not addressed in the statute.
We have included in the Comment a reference to Commonwealth v. Abrams, 336 A.2d 308 (Pa. 1975) and Commonwealth v. Crawford, 352 A.2d 52 (Pa. 1976), cases in which the Court held that the right to counsel applies in criminal contempt cases, to emphasize that a contemnor may not be imprisoned if the right to counsel was not afforded at the contempt hearing. In this same vein, we have included cross-references to the procedures in Rule 316 for assignment of counsel and Rule 318 concerning waiver of counsel.
The Comment includes a cross-reference to Rule 85 (Procedures Regarding Default in Payment of Fine and Costs After Conviction). The Committee wanted to eliminate any confusion concerning the interplay between the new power to impose summary punishments for indirect criminal contempt when a defendant fails to pay fines and costs in accordance with an installment payment order under 42 Pa.C.S § 4137(a)(3), 4138(a)(3), and 4139(a)(3) and the Rule 85 default procedures. This reference makes it clear that the Rule 85 procedures are separate and distinct from contempt proceedings.3
C. New Rule 31. Apeals from Contempt Adjudications by District Justices, Pittsburgh Magistrates Court Judges, or Philadelphia Traffic Court Judges.
1. Background
During the development of this proposal, the Committee debated at length whether the language in 42 Pa.C.S. §§ 4137(d), 4138(d), and 4139(d), which provides that any punishment imposed for contempt will be ''automatically stayed for a period of ten days from the date of the imposition of the punishment during which time an appeal of the action'' of a district justice, a Pittsburgh Magistrates Court judge, or a Philadelphia Traffic Court judge'' may be filed with the court of common pleas of the judicial district,'' created a new ten-day appeal period or was merely a ten-day stay period within the standard thirty-day appeal period.
When the Committee initially developed its proposal, the members elected to merely reflect in Rule 31 the language in the statute. Following the publication of the proposal, the Committee received a number of comments which revealed that this question needed to be resolved in the new contempt rules.
In determining how best to address this matter, the Committee extensively researched the legislative history of the statute, including a review of the House Journal and conversations with the House Judiciary Committee staff, with Representative Caltagirone (one of the bill's sponsors) and some of his staff, and the staff of the Chief Clerk of the House. This research yielded nothing that explained the intent of the statute concerning the appeal time.
The Committee also looked at the statutory basis for a thirty-day appeal period, in particular 42 Pa.C.S. § 5571(b), which provides:
(b) Other Courts.--Except as otherwise provided in subsections (a) and (c), an appeal from a tribunal or other government unit to a court or from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken, in the case of an interlocutory or final order.
In addition, we noted that 42 Pa.C.S. § 1722(c) gives the Supreme Court, as the governing authority, the power: to prescribe and modify general rules:
(1) on any subject covered by Subchapter D of Chapter 55 (relating to appeals)4 . . . .
and provides that:
The provisions of Chapter 55 (relating to limitation of time)5 and all other statutes shall be suspended to the extent that they are inconsistent with rules prescribed under this subsection. The intention of this subsection is to authorize the governing authority to develop and maintain uniformity in time periods within the scope of this subsection by eliminating statutory time limitations which are inconsistent with the general pattern of similar time limitations then in effect.
In view of the Supreme Court's authority to modify by rule the general appeal time periods, the Committee agreed that the new contempt rules should specify the time for taking an appeal, and that time period should be the standard thirty-day period. Similarly, the Committee concluded that the automatic stay of sentence time period should be extended to thirty days to be consistent with the thirty-day appeal period. In this way, the appeal provisions for appeals from minor judiciary contempt findings are consistent with the appeal periods for other appeals from decisions by the minor judiciary, thus achieving the uniformity referred to in 42 Pa.C.S. § 1722(c).
2. Discussion of rule provisions
For the most part, Rule 31 is modeled on Rule 86, which governs appeals in summary criminal cases. Paragraph (A) provides that, to perfect an appeal, the appellant is required to file a notice of appeal with the clerk of courts within thirty days after the action of the issuing authority, and to appear in the court of common pleas.
Paragraph (B) implements the provisions of 42 Pa.C.S. §§ 4137(d), 4138(d), and 4139(d) concerning staying the imposition of punishment, but provides for a thirty-day stay.
Paragraph (C) sets forth the contents of the notice of appeal, and paragraph (D) requires the clerk of courts to serve a copy of the notice on the issuing authority within five days of the filing. The issuing authority is required in paragraph (E) to file with the clerk of courts a copy of the hearing notice or the attachment and the contempt order, as well as the transcript and any arrest warrant.
The Comment explains that the rule provides the procedures for taking an appeal pursuant to the statute, and points out that to the extent the statute is inconsistent with Rule 31, the statute is suspended by new Rule 39.
D. New Rule 32. Procedures Governing Defaults in Payment of Fine Imposed as Punishment for Contempt.
Consistent with the Committee's decision to keep all procedures related to the minor judiciary's new contempt powers within one chapter, there is a separate rule addressing the procedures for handling cases in which a contemnor fails to pay a fine imposed as punishment for contempt.
Paragraph (A) requires the issuing authority to notify the contemnor in person or by first class mail that unless the contemnor, within ten days of the notice, either pays the amount due or appears for a hearing, a warrant for the contemnor's arrest will be issued.
Paragraph (B) requires that the issuing authority conduct an ability to pay hearing when the contemnor appears voluntarily in response to the notice or involuntarily following an arrest for failing to respond to the notice. Paragraph (B)(1) provides that if the defendant is found to be financially able to pay, the issuing authority may impose imprisonment as provided by law. Paragraph (B)(2) provides that the issuing authority may schedule installment payments if the contemnor is financially unable to pay.
Paragraph (C) provides that an appeal may be taken by filing a notice of appeal within thirty days of the order, and that the appeal is to proceed as provided in Rule 31.
E. New Rule 39. Suspension of Acts of Assembly--Chapter 30.
Because the automatic stay period has been extended from the ten days provided in 42 Pa.C.S. §§ 4137(d), 4138(d), and 4139(d) to thirty days to be consistent with the thirty-day appeal period provided in new Rule 31, 42 Pa.C.S. §§ 4137, 4138, and 4139 have been suspended by new Rule 39 (Suspension of Acts of Assembly--Chapter 30), but only insofar is they are inconsistent with the thirty-day appeal period and the thirty-day automatic stay period set forth in Rule 31.
[Pa.B. Doc. No. 97-1657. Filed for public inspection October 17, 1997, 9:00 a.m.] _______
1 The Committee's Final Reports should not be confused with the official Committee Comments to the Rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
2 There was a good deal of discussion about the Protection from Abuse Act (PFA), which permits the arrest without a warrant of an alleged contemnor, as it relates to the new contempt statute and the new rule. The Committee agreed that Rule 30 would only provide the procedures to implement the contempt statute and the Comment would make it clear that the rule procedures are not intended to supplant the PFA.
3 For the same reasons, the Rule 85 Comment was revised in October 1997 to include a cross-reference the new contempt rules.
4 Sections 5571 to 5574 of Title 42
5 Section 5501 et seq. of Title 42
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