Eichenlaub v. Eichenlaub

• Decision Date: 04 April 1985
• Citation: 490 A.2d 918,340 Pa.Super. 552
• Parties: Linda EICHENLAUB v. Daniel W. EICHENLAUB, Appellant.
• Court: Pennsylvania Superior Court

Page 918

490 A.2d 918

340 Pa.Super. 552

Linda EICHENLAUB v. Daniel W. EICHENLAUB, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 23, 1984.

Filed April 4, 1985.

Arnold H. Cantor, Pittsburgh, for appellant.

Lee Markovitz, Pittsburgh, for appellee.

Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.

SPAETH, President Judge:

This is an appeal from judgment of sentence for indirect criminal contempt of a protection order entered under the Protection From Abuse Act. ¹ The issue is whether the provision of the Act that on a charge of indirect criminal contempt "the defendant shall not have a right to a jury trial," 35 Pa.C.S. § 10190, violates appellant's rights under the United States and Pennsylvania Constitutions. We hold that it does not and therefore affirm.

Appellant married appellee on October 5, 1968. The couple had three children. On May 10, 1979, appellee filed a petition for a protection order under the Protection From Abuse Act, supra, alleging that appellant had abused her and the children. (R. at 1) ² On May 17, 1979, the trial court ordered that appellant be excluded from the marital home for thirty days and that he refrain from abusing appellee and the children. (R. at 3) On January 18, 1982, appellee filed a second petition for a protection order, alleging that appellant had assaulted her and threatened her life. (R. at 4). After hearing, the trial court, on February 17, 1982, ordered that appellant be excluded from the marital home for one year and that he refrain from abusing appellee and the children. (R. at 8)

On June 23, 1982, appellee filed the first of four allegations that appellant was in contempt of the trial court's second protection order. Appellee alleged that appellant had returned to the marital residence and again assaulted her. (R. at 11) After hearing, at which appellant pleaded guilty, the trial court sentenced him to 90 days probation and a $250 fine. (Slip op. of tr. ct. at 3) On August 4, 1982, appellee filed her second contempt allegation, alleging that appellant had threatened her life. (R. at 13) In lieu of a hearing, the parties, on September 1, 1982, agreed to a consent order by the terms of which appellant agreed that he would not return to the marital home for any reason, and that he would undergo psychiatric counseling, the results of which he would report to the court within 90 days. (R. at 15) Appellee apparently filed her third contempt allegation the following month, with appellant filing a cross allegation. The trial court dismissed both allegations, admonishing the parties to comply strictly with the terms of the September 1, 1982, consent order. (Slip op. of tr. ct. at 3-4) On April 2, 1983, appellee filed her fourth contempt allegation; it arose from an incident earlier that day. According to appellee's testimony at the contempt hearing, on April 14, 1983, appellant waited in the driveway of the marital residence for her to return from work. When she returned, at 3:00 a.m., he beat her. She sustained two black eyes, bruises to her face, and a fractured sternum. Her injuries required hospitalization for six days, during which time appellant continued to threaten her. (N.T., 4/14/83 at 38-48)

The issue before us arises because at the start of the hearing on appellee's fourth contempt allegation, the trial court denied appellant's motion for trial by jury. (R. at 18, N.T. 4/14/83 at 12) At the conclusion of the hearing, the court found appellant guilty of indirect criminal contempt, and sentenced him to ninety days in the county jail. This appeal followed.

Section 10190 of the Protection from Abuse Act provides:

(a) Upon violation of a protection order or a court approved consent agreement the court may hold the defendant in indirect criminal contempt and punish him in accordance with law.

(b) Notwithstanding any provision of the law to the contrary any sentence for this contempt may include imprisonment up to six months or a fine not to exceed $1,000 or both and the defendant shall not have a right to a jury trial on such a charge.

35 P.S. § 10190.

While the Act has been upheld in the face of other constitutional challenges, see Commonwealth v. Allen, --- Pa. ---, 486 A.2d 363 (1984); Commonwealth v. Zerphy, 332 Pa.Super. 388, 481 A.2d 670 (1984) (double jeopardy); Boyle v. Boyle, 12 D. & C. 3d 767 (1979) (due process), this case is the first challenge to the Act's denial of a right to a jury trial on a charge of indirect criminal contempt. See, on the enhanced penalties added to the Act in 1978, Comment, "Spouse Abuse: A Novel Remedy for a[n] Historic Problem," 84 Dickinson L.Rev. 147, 163-64 (1980).

We begin by noting that Section 10190, as is true of any other statutory provision, enjoys a strong presumption of constitutionality. See 1 Pa.C.S. § 1922(3); Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981) ("... we must be mindful of the presumption in favor of constitutionality of lawfully-enacted legislation ... [A]n act of assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the constitution. (citations omitted) Any doubts are to be resolved in favor of sustaining the legislation."). See also In re Jones, 286 Pa.Super. 574, 429 A.2d 671 (1981). As will appear, we have concluded that Section 10190 does not "clearly, palpably and plainly" violate appellant's right to a jury trial. Accordingly, we will not declare the section unconstitutional.

In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh'g denied 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968), the United States Supreme Court held that one accused of a "serious," as opposed to a "petty," offense is entitled to a jury trial. The Court observed that "the boundaries of the petty offense category have always been ill-defined, if not ambulatory," and that "the definitional task necessarily falls upon the courts, which must ... pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial...." Id. at 160, 88 S.Ct. at 1453. The "most relevant indication ... is the severity of the penalty authorized for its commission." Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162, reh'g denied 396 U.S. 869, 90 S.Ct. 34, 24 L.Ed.2d 123 (1969). The Court emphasized that it is the penalty authorized, not the penalty actually imposed, that controls. Id. at 149, 89 S.Ct. at 1505 ("... the severity of the penalty authorized, not the penalty actually imposed, is the relevant criterion," for "[i]n such cases, the legislature has included within the definition of the crime itself a judgment about the seriousness of the offense."). In defining when the penalty authorized is so severe as to require a jury trial, the Court has drawn a "bright line": the right to trial by jury attaches when one is accused of a crime for which the authorized penalty is more than six months imprisonment. See Baldwin v. New York, 399 U.S. 66, 68-74, 90 S.Ct. 1886, 1887-1891, 26 L.Ed.2d 437 (1970); Frank v. United States, supra 395 U.S. at 150, 89 S.Ct. at 1506. This rule extends to the offense of criminal contempt. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974) (court may not impose penalty of more than six months imprisonment for separate instances of criminal contempt arising out of same incident without affording accused right to trial by jury): And see Commonwealth v. Mayberry, 459 Pa. 91, 98, 327 A.2d 86 (1974) (on issue "whether the crime charged, criminal contempt or otherwise, is 'serious' [,] [t]he test is clear," the United States Supreme Court having established six months imprisonment as the "[f]ixed dividing line") (citations omitted).

Since Section 10190 of the Protection From Abuse Act does not authorize a penalty of more than six months imprisonment, it does not violate appellant's right to a jury trial, unless the further authorization of "a fine not to exceed $1,000" so enhances the severity of the penalty authorized as to render the offense of violating a protection order a "serious," instead of a "petty," offense. Appellant argues that the further authorization of a $1,000 fine does render the offense "serious," and in support of his argument, he cites the federal definition of a "petty" offense in 18 U.S.C. § 1(3) ("Any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or both, is a petty offense") and decisions by federal circuit Courts of Appeal adopting this definition as the bright line determining when the right to trial by jury attaches. ³ We are not persuaded by appellant's argument, or by his citations in support of it.

Our legislature has not enacted a statutory definition drawing a bright line between petty and serious offenses. A summary offense is one punishable by ninety days imprisonment, or a $300 fine, or both. See 18 Pa.C.S. §§ 106(c)(2); 1101(6). This definition, however, is irrelevant to the determination of an accused's right to a jury trial, for an offense may be more "serious" than a summary offense without being so "serious" as to require a jury trial. See Codispoti v. Pennsylvania, supra; Commonwealth v. Mayberry, supra. If we may not consider our legislature's statutory definition of a petty offense dispositive, we see no reason why we should consider the federal definition dispositive, especially given the fact that the federal definition was adopted in 1930 for purposes unrelated to the right to a jury trial. See Duke v. United States, 301 U.S. 492, 494, 57 S.Ct. 835, 836, 81 L.Ed. 1243 (1937) ("The evident object of [§ 1(3) ] was to bring about a subdivision of misdemeanors of minor gravity to be known as petty offenses.") To be sure, if the United States Supreme Court had adopted the federal definition as dispositive, we should be obliged to do the same. However, the Court has instead cautioned...