Com. v. Charlett

• Decision Date: 05 October 1978
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Vincent T. CHARLETT, a/k/a Rick Pertrini, a/k/a Rev. Calvenger, a/k/a Rev. McCallister, Vincent T. Charlett, t/d/b/a Laurel, Vincent T. Charlett, t/d/b/a Burgandy U., and Linda Hoffman, Appellants.
• Court: Pennsylvania Supreme Court

Page 1296

391 A.2d 1296

481 Pa. 22

COMMONWEALTH of Pennsylvania, Appellee, v. Vincent T. CHARLETT, a/k/a Rick Pertrini, a/k/a Rev.

Calvenger, a/k/a Rev. McCallister, Vincent T.

Charlett, t/d/b/a Laurel, Vincent T.

Charlett, t/d/b/a Burgandy U.,

and Linda Hoffman, Appellants.

Supreme Court of Pennsylvania.

Argued March 13, 1978.

Decided Oct. 5, 1978.

[481 Pa. 24] Allen N. Brunwasser, Pittsburgh, for appellants.

Albert Gaudio, Asst. Dist. Atty., Greensburg, for appellee.

Before O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION

MANDERINO, Justice.

On February 25, 1975, the District Attorney's Office of Westmoreland County filed a complaint in equity seeking to enjoin appellants from operating a business known as "Laurel" or "Burgandy U." The complaint alleged that Burgandy U. was a public nuisance because illegal sexual activities were performed there under the guise of operating as a massage parlor. Burgandy U., the complaint alleged, was a nuisance detrimental to the health, safety, welfare and morals of the community.

After a hearing, the Court of Common Pleas of Westmoreland County found that the performance of massage was a mere subterfuge at Burgandy U.; that female "inmates" employed there by appellants engaged in sexual intercourse with patrons; that these inmates performed other acts upon patrons intended to induce sexual pleasure and/or sexual climax; and that the operation of Burgandy U., owned by appellant Vincent Charlett and managed by appellant Linda Hoffman, was a hazard to the health, decency and morals of the citizens of Westmoreland County. The court's conclusions of law were that Burgandy U., was (1) a public nuisance and (2) in violation of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 5902 (1973). The court entered the following order:

"AND NOW, this 13th day of May, 1975, after hearing, arguments and careful review of briefs and cases submitted for consideration, all of the above-captioned defendants, their agents, servants, employees or representatives are hereby preliminarily enjoined and prohibited from continuing or conducting any business in Westmoreland County, Pennsylvania wherein customers or patrons, for hire, are shown or exhibited genitals or other portions of an inmate's or employee's body with the intent or objective to induce or stimulate sexual excitement, sexual enjoyment or sexual climax; and the aforesaid are further preliminarily enjoined and prohibited from offering for hire or from performing for hire any body contact directly or indirectly upon a patron or customer where such body contact is designed or intended to induce or stimulate sexual excitement, sexual enjoyment or sexual climax.

On June 9, 1975, the Westmoreland County District Attorney filed a petition for contempt citation, alleging that appellants had violated the above order. A rule to show cause why a contempt citation should not issue was granted, and hearings on the rule were held. During the hearings, defense counsel requested that the court inform appellants whether the proceeding was one for criminal contempt or civil contempt. The court refused to classify the proceeding, and at the conclusion of the hearings, found that appellants had knowingly violated its May 13th order by continuing to provide sexual services to customers of Burgandy U. in exchange for monetary fees, and that such willful violation of the order rendered appellants in contempt of court. On November 26, 1976, the trial court entered a contempt decree imposing two fines against appellants. According to the trial court, the first fine of $153,000.00 "represents the established minimum amount of profits made by (appellants) as a result of their contemptuous conduct." The second fine of $150,000.00, labeled a "punitive fine" by the court, was to be returned after appellants had assured the court that they had purged themselves of their contemptuous conduct by ceasing the enjoined activities at Burgandy U. This direct appeal from the adjudication of contempt followed. See The Appellate Court Jurisdiction Act of 1970, 17 P.S. § 211.202(5) (Supp.1978-79).

Appellants attack the contempt citation and fines imposed incident to that citation on several grounds, only one of which we need address here. Appellants renew their argument, raised below, that the contempt proceeding was one of criminal contempt, thus under Pennsylvania law appellants were entitled to a jury trial. We agree, and therefore vacate the contempt citation and fines imposed against appellants.

There is no question that if the proceeding below was one of criminal contempt, appellants were entitled to a trial by jury. That right is guaranteed not only by the Sixth Amendment to the United States Constitution, but also by Pennsylvania statutory law, which accords a defendant that right, plus other procedural protections, when charged with indirect (occurring outside the presence of the court) criminal contempt. That law provides in pertinent part:

"In all cases where a person shall be charged with indirect Criminal contempt for violation of a restraining order or injunction issued by a court or judge or judges thereof, the accused shall enjoy

(a) The rights as to admission to bail that are accorded to persons accused of crime;

(b) The right to be notified of the accusation and a reasonable time to make a defense, provided the alleged contempt is not committed in the immediate view or presence of the court;

(c) Upon demand, the right to a speedy and public trial by an impartial jury of the judicial district wherein the contempt shall have been committed . . .

(d) The right to file with the court a demand for the retirement of the judge sitting in the proceeding, if the contempt arises from an attack upon the character or conduct of such judge, and if the attack occurred otherwise than in open court. Upon the filing of any such demand, the judge shall thereupon proceed no further but another judge shall be designated by the presiding judge of said court. The demand shall be filed prior to the hearing in the contempt proceeding. 1931, June 23, P.L. 925, § 1." 17 P.S. § 2047 (1962). (Emphasis added.)

Section 2 of the Act, 17 P.S. § 2048, provides that punishment for a contempt specified in the preceding section may be a fine not to exceed $100.00, or imprisonment not to exceed fifteen days, or both.

Our threshold inquiry, therefore, is to determine whether the trial court's response to appellants' alleged contemptuous behavior was an adjudication of criminal contempt or civil contempt. We have consistently held that in determining whether a contempt citation is civil or criminal contempt, our guide is the dominant purpose of the court. See, e. g., Roth Appeal, Pa. (J 120 of 1978, filed ---, 1978); In re Martorano, 464 Pa. 66, 78, 346 A.2d 22, 28 (1975); Woods v. Dunlop, 461 Pa. 35, 40 n.2, 334 A.2d 619, 622 n.2 (1975); Brocker v. Brocker, 429 Pa. 513, 519, 241 A.2d 336, 338 (1968); Knaus v. Knaus, 387 Pa. 370, 376-77, 127 A.2d 669 (1956). In carrying out our responsibility to discern a court's dominant purpose for a contempt adjudication, we have established the following guidelines:

"Discovery of the court's dominant purpose requires a functional analysis of the court's action. . . . Basically, the reviewing court must decide whether the citing court's purpose was to 'vindicate the dignity and authority of the court and to protect the interest of the general public.' Such citation is for criminal contempt. If the citation's purpose is to coerce the contemnor into compliance with the order of the court to do or refrain from doing some act primarily for the benefit of a litigant or a private interest the citation is for civil contempt." Woods v. Dunlop, supra, 461 Pa. at 40 n.2, 334 A.2d at 622 n.2 (citations omitted).

"(I)f the contempt consists solely of a past act, the only allowable judicial response is punitive, and any contempt adjudication must be criminal." In re Martorano, supra, 464 Pa. at 80 n.19, 346 A.2d at 29 n.19.

See also, Roth Appeal, supra; Commonwealth ex rel. Beghian v. Beghian, 408 Pa 408, 184 A.2d 270 (1962); Knaus v. Knaus, supra.

These firmly established principles of the law of contempt, when applied to the case at bar, leave little doubt that the contempt proceedings initiated against appellants were criminal in nature, and appellants were thus entitled to a trial by a jury of their peers. Initially, we note that the alleged contemptuous conduct consisted solely of the past act of remaining in operation contrary to the court's injunctive order. We have previously said that a contempt citation in response to that act is punitive and the contempt adjudication must be criminal. In re Martorano, supra.

Secondly, a review of the trial transcript makes it evident that the court's Dominant purpose was to "vindicate the dignity and authority of the court and to protect the interest of the general public." The following colloquy between the trial court and defense counsel took place at the outset of the contempt proceeding:

"(DEFENSE COUNSEL): I would like Your Honor to tell us whether this is a proceeding for civil contempt or for criminal contempt so I'll know procedurally how to protect my client.

THE COURT: This is a hearing to determine whether or not your clients have violated an Order of this Court. You can give it whatever terminology you want. But it's the feeling of the Court that it has the inherent power to enforce its Order. Otherwise, our entire judicial system would be null and void. So I'm holding a hearing upon petition of the District Attorney's office on the information or the allegations that I received to determine whether or not this Court's Order has been violated.

(DEFENSE COUNSEL): . . . Frankly, Your Honor, I can see no reason with all due respect to Your Honor's position why we should not know in advance exactly the nature of the proceeding. Your Honor knows the same proceeding can be civil...