Protection from abuse actions are civil proceedings. However, once if civil protection from abuse order is violated, whether that order is temporary or permanent, a criminal proceeding instituted by the commonwealth, may occur and such proceeding is known as a an indirect criminal contempt (ICC) proceeding. If the commonwealth prevails and the defendant is convicted, the defendant will suffer a criminal sentence, which may include incarceration for up to six months.

In the recent case of Commonwealth v. Wilson, 2020 PA Super. 18, __ A.3d ___ (Feb. 11, 2019) the issue on appeal was whether the trial court erred in sua sponte vacating its judgment finding the defendant guilty of indirect criminal contempt for violating an emergency order entered pursuant to the PFA Act during the subsequent sentencing hearing. However, there are important reminders in the Wilson case that all family law practitioners should keep in their tool belt.

The pertinent facts of Wilson are as follows: CJ and Wilson resided together and have four minor children together. In June 2018, CJ filed an emergency PFA petition seeking protection against Wilson. She claimed that Wilson struck her in the face and put his hand over her mouth to stop her from yelling when she called out to her children to call 911. Her emergency petition also reflects that Wilson threw a pogo stick while his 5-year-old son tried to protect CJ. Because CJ filed an emergency petition, it was filed before a magisterial district judge and an ex-parte hearing was held. The magisterial district judge found good cause that it was necessary to protect CJ and the children from Wilson. The magisterial judge then entered an emergency order of protection. In the emergency order, it ordered Wilson to: "refrain from abusing CJ and the children; refrain from contacting CJ and the children; and (3) be evicted from the residence …." On the next business day after the emergency order was entered, CJ filed a pro se PFA petition with the trial court. In response to the petition, the trial court entered a temporary PFA order and scheduled a hearing. According to the opinion, after two attempts, the sheriff of Armstrong County was unable to serve Wilson with the PFA petition and temporary PFA order. "Furthermore, on June 20, 2018, CJ failed to appear for the PFA hearing, prompting the trial court to dismiss the temporary PFA order and to dismiss the entire PFA matter without prejudice."

However, when the emergency PFA order was entered it was personally served on Wilson.  When the officer served Wilson with the emergency PFA order he told Wilson that Wilson could have no contact, direct or indirect, with CJ. "Specifically, he told Wilson 'don't call her, don't stop by the house, [and] don't have anybody else call her for you, or it would be a violation of the PFA.'" According to the opinion, after the officer served Wilson, he went to the front porch of CJ's house to tell her and on the phone with CJ was Wilson yelling at her and using profanity.  The call from Wilson to CJ occurred approximately "just 25 minutes" after the officer served Wilson with the emergency PFA order and informed him not to contact CJ. Wilson used a blocked phone number to contact CJ during that call. When the call was made, CJ handed the officer the phone so that he could hear Wilson yelling. Thereafter, the commonwealth filed an ICC complaint against Wilson. "In the complaint, the commonwealth accused Wilson of violating the emergency PFA order, stating that after he was served with emergency PFA order, he called CJ's cell phone, used profanity and yelled at her for obtaining a PFA against him."

The Superior Court has described the elements required for a finding of indirect criminal contempt as follows: "the order was sufficiently definite, clear, and specific to the contemnor as to leave no doubt of the conduct prohibited; the contemnor had notice of the order; 3) the act constituting the violation must have been volitional; and the contemnor must have acted with wrongful intent."

At the indirect criminal contempt hearing, the officer that served the emergency PFA order, CJ, and Wilson testified. Wilson appeared pro se. The trial court, at the conclusion of the ICC hearing, found Wilson guilty. According to the opinion, the trial court stated: "the order directed you have no contact, direct or indirect. A phone call is direct contact." Approximately two months later, a sentencing hearing occurred. The sentencing hearing was a short eight-minute proceeding. At the sentencing hearing, the commonwealth requested that the court consider the parties' "very rocky relationship" and Wilson's "pending charges for assaulting CJ and their son, his new acquired charges of conspiracy for obstruction of justice and witness intimidation regarding his alleged attempt to prevent CJ and their son from testifying in the assault matter, and his pattern of violent behavior against CJ and others."

When Wilson testified at the sentencing hearing, he indicated that CJ had "bonded [him] out" when he was arrested for aggravated assault against another individual and indicated that he and CJ have been together ever since that time. According to the opinion, "he claimed that CJ wanted to drop the pending simple assault charges against him for assaulting her, but the District Attorney threatened to charge CJ if she dropped the simple assault charges." Wilson also highlighted to the court that CJ dropped her PFA action against him and there was no final PFA order entered. The trial court then immediately, sua sponte, entered an order on the record dismissing the ICC complaint and vacated the order finding Wilson guilty. The commonwealth appealed and the Superior Court held that the trial court cannot re-evaluate the evidence sua sponte long after its role as fact finder has ended. The Superior Court reversed the trial court's order and remanded the matter for reinstatement of the original guilty verdict and for sentencing.

The Superior Court highlighted: "however, what matters is not whether a PFA order was in effect at the time of the contempt hearing, but whether a valid PFA order was in effect at the time of the alleged contempt. Stated another way, the outcome of the final PFA hearing has no bearing on whether there was a valid order prohibiting contact in effect at the time Wilson called CJ." Further, as stated by the Superior Court, "for the purpose of contempt, an emergency PFA order prohibiting contact has the same validity as a final PFA order prohibiting contact."

This case is extremely important for the family law practitioner. It is critical that attorneys remind their clients that regardless of the outcome of the final PFA proceeding, all interim PFA orders must be scrupulously abided by the defendant, as any violation thereof can subject the defendant to an indirect criminal contempt prosecution. As seen in the Wilson case, there was an emergency PFA order entered by a magisterial judge and the underlying PFA action that was filed in the Common Pleas Court was later withdrawn by the plaintiff. However, Wilson's actions after he was served with the emergency PFA order in violation of that order subjected him to contempt proceedings regardless of the ultimate disposition of the case. As some say, "an order is an order." That is true whether it is a temporary order, an emergency order, or a final order.

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book "Pennsylvania Child Custody Law, Practice, and Procedure." Bertin is the chair of the family law section of the Pennsylvania Bar Association, a Fellow of the American Academy of Matrimonial Lawyers, former chair of the family law section of the Philadelphia Bar Association, and the current co-chair of its custody committee. He can be reached at 215-665-3280 or [email protected].