# Commonwealth v. Charlett

> Supreme Court of Pennsylvania · October 5, 1978 · 481 Pa. 22

URL: https://www.frixlaw.com/law-library/cases/9700828

## Case

- **Full name:** 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:** Supreme Court of Pennsylvania
- **Decided:** October 5, 1978
- **Citations:** 481 Pa. 22; 391 A.2d 1296; 1978 Pa. LEXIS 1049
- **Precedential status:** Published
- **Opinion:** Dissent by Larsen
- **Judges:** O'Brien, Roberts, Pomeroy, Nix, Manderino, Larsen, Eagen
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9700828

## Opinion text

*32 LARSEN, Justice,
dissenting.
I dissent. The majority holds that, because the $153,-000.00 fine was imposed for the past act of remaining in operation contrary to the court’s injunctive order, that fine cannot be considered civil. I disagree.
It is true that a person may not be imprisoned through the civil contempt process solely for prior misconduct. Imprisonment for civil contempt is permissible only when the imprisonment is conditional, that is, upon compliance with a condition imposed by the court, the contemnor will be released. This was the situation in In re Martorano, 464 Pa. 66 , 346 A.2d 22 (1975), cited in the majority opinion, where Martorano was imprisoned for refusal to testify before a grand jury after he had been granted immunity from prosecution. He could effectuate his release at any time by testifying before the grand jury. See also cases cited in In re Martorano, 464 Pa. at 79 and 80, n.18, 346 A.2d at 28 and 29, n.18, which all dealt with coercive imprisonment for disobedience of a court order or directive. The civil contempt decree in such cases is designed to prospectively coerce contemnor’s obedience.
However, to the extent that Martorano and the majority opinion today suggest that no fine may ever be imposed for past acts of contempt, they eliminate a valuable remedy which has repeatedly received our approval. Where the dominant purpose is not coercive but compensatory, a court is empowered to civilly impose an unconditional, non-punitive fine upon a contemnor payable to the litigants injured by the defendant’s prior actions amounting to contempt. “[I]t is clear that a Court can for present or past acts of misbehavior amounting to civil contempt impose an unconditional compensatory fine and/or a conditional fine and imprisonment, and such fine may be payable to the United States or to the Commonwealth or to the county or to the individual who was injured.” Broeker v. Brocker, supra, 429 Pa. at 519-20, 241 A.2d at 339 (emphasis added) and see cases cited therein.
*33 For example, in Commonwealth ex rel. Beghian v. Beghian, 408 Pa. 408 , 184 A.2d 270 (1962), we sustained, as an appropriate penalty for civil contempt, the lower court’s imposition of a $2,500 unconditional fine payable for the benefit of appellee to compensate for expenses incurred as a result of appellant’s prior contemptuous acts. However, we reversed a $25,000 unconditional fine in the same case because that fine was entirely punitive and unrelated to any measure of damages for injuries sustained by appellee. The $2,500 fine was rationally based upon appellee’s losses, while the amount of the larger fine was arbitrarily calculated and adopted solely to punish contemnor. In Beghian and similar cases, because of the remedial nature of the fine imposed to compensate for the injuries caused by the contumacious behavior of the defendant, the fact that the fine was imposed solely for past contemptuous conduct was not fatal to a finding of civil contempt. See Gompers v. Buck’s Stove and Range Co., 221 U.S. 418, 448 , 31 S.Ct. 492 , 55 L.Ed. 797 (1911); McComb v. Jacksonville Paper Co., 336 U.S. 187 , 69 S.Ct. 497 , 93 L.Ed. 599 (1949); Altemose Constr. Co. v. Bldg. and Constr. Council of Philadelphia, 449 Pa. 194, 218 , 296 A.2d 504, 517 (1972), cert. denied, 411 U.S. 932 , 93 S.Ct. 1901 , 35 L.Ed.2d 392 (1973); Philadelphia Marine Trade Ass’n. v. Int'l. Longshoreman’s Ass’n, 392 Pa. 500, 513-527 , 140 A.2d 814 , 821-828 (1958) (Bell, J. concurring).
In the case at bar, the lower court was presented with a unique situation requiring a unique remedy. Appellants flagrantly and intentionally disregarded the order of May 13th by continuing to provide sexual services to patrons of Burgandy U. in the manner enjoined by the order. They continued to acquire new employees and to instruct them in the performance of their duties. They continued to reap substantial profits from the business while fully cognizant that their actions were in direct violation of the injunction.
The $153,000.00 fine levied upon appellants was not remedial in the strict sense that particular litigants were compensated for actual pecuniary losses suffered and proven. Yet, its character is essentially remedial in that it compensates *34 thé citizens of Westmoreland County for the injuries wrought by appellants’ willful misconduct, which injury would, by the very nature of the misconduct, be difficult to calculate on the basis of out-of-pocket losses. The amount of the fine was calculated instead by reference to testimony introduced at the hearings on the injunction and the contempt citation which established the minimum amount of profit made by appellants as a result of their contemptuous actions from May 13, 1975 to December 29, 1975, during which period appellants were shown to be in continuous violation of the injunction order. As noted in the majority opinion, the lower court stated in its “Conclusions of Law” that “the Chancellor may impose a fine whose objective is to eliminate the profitable aspect of the contemptuous conduct.”
Thus, the “fine” was not an arbitrary figure of the kind typically used in criminal contempt cases. The amount was chosen so as to ensure that appellants would not be unjustly enriched by their egregious disregard of the May 13th order. This “unjust enrichment” measure relieved appellants of profits they should never have made, which profits provided a reliable basis upon which to approximate the monetary value of the injuries they caused by continued operation of a business that had been adjudged a public nuisance. As a matter of policy, I find the use of the unjust enrichment measure an appropriate and necessary measure of civil contempt fines in such cases. See D. Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 276-77 (1971).
The use of the unjust enrichment measure for calculating the amount of a fine imposed for civil contempt is not without precedent. The United States Supreme Court permitted the use of such a fine in a civil contempt proceeding stemming from violation of an injunction granted in a patent infringement suit. Leman v. Krentler-Arnold Co., 284 U.S. 448 , 52 S.Ct. 238 , 76 L.Ed. 389 (1932). The fine imposed in Leman by the District Court was measured by the amount of profits made by the contemnor through its injunction violation. The Supreme Court upheld the fine, *35 holding “[w]hile the distinction is clear between damages, in the sense of actual pecuniary loss, and profits, the latter [profits] may none the less be included in the concept of compensatory relief.” Id. at 456 , 52 S.Ct. at 241 . The profits measure was deemed a proper component of compensation. The fine was, therefore, remedial, not punitive.
The Circuit Court of Appeals for the Second Circuit has logically interpreted Leman as authorizing an award in a civil contempt proceeding based on the amount of profits made as a result of a contemnor’s disobedient acts, even where the plaintiff has not suffered actual pecuniary harm. In United States v. Aberbach, 165 F.2d 713 (2d Cir. 1948) the Second Circuit considered the propriety of a fine imposed in a civil contempt proceeding arising from violation of an injunction. 'The fine was sustained as bearing some reasonable relation to the amount of damages which the injunction violation caused complainant (the United States). The Second Circuit stated: “[t]he fine, moreover, need not be exclusively a remedy for the damages, but might, without actual proof of the amount, be based upon the complainant’s costs and attorney’s fees or upon the amount of profits accruing to the contemnor from the violation.” Id. at 715 (emphasis added). In Sunbeam Corp. v. Golden Rule Appliance Co., 252 F.2d 467, 470 (2d Cir. 1958), the Second Circuit again considered the appropriateness of measuring a civil contempt fine by reference to the defendant’s profits and held “[a]n award in such cases [civil contempt cases stemming from patent and trademark infringement suits] surely cannot be characterized as ‘punitive’. For its effect goes no further than to give to the plaintiff the profits derived by the defendant’s wrongful conduct; it does not take from the defendant assets not related to its wrongful conduct. . [Sjuch a recovery rests ‘upon the equitable principle of unjust enrichment’ which is the antithesis of punishment. Restatement, Restitution, § 1.” 1
*36 I am not unmindful of the fact that in these unjust enrichment cases the fine was awarded to a litigant who had been injured by the contemptuous conduct, which injury was presumptively of a pecuniary nature (i. e., damages to a complainant’s sales market or to its goodwill), and that, in the present case, the moving party was the Commonwealth acting on behalf of the public whose injury consisted primarily of intangible harm to the health, welfare and safety of the citizens. Yet that fact should not enable appellants to ignore a specific court order with impunity, and then retain enormous profits made at the expense of the community. Since the fine was intended to do no more than to give to the community (note, the fine was payable to Westmoreland County) a monetary substitute for those injuries based on the profits derived from appellants’ wrongful and intentional misconduct, and did not take from them assets unrelated to such conduct, the dominant purpose of the fine was remedial and, hence, could be imposed unconditionally. As the dominant purpose of the $153,000 fine was remedial, the contempt was civil and the statutory procedures and limited sanctions mandated for criminal contempt proceedings are not applicable.
And, since the sanction imposed indicates civil contempt, the Fifth and Fourteenth Amendments of the United States Constitution do not require jury trial protection. The right to a jury trial in a contempt proceeding applies only to cases involving “serious criminal contempt”. Bloom v. Illinois, 391 U.S. 194, 198-99 , 88 S.Ct. 1477 , 20 L.Ed.2d 522 (1968). A contempt is a “serious criminal contempt” if a sentence of imprisonment is imposed which exceeds six months. Codis *37 poti v. Pennsylvania, 418 U.S. 506 , 94 S.Ct. 2687 , 41 L.Ed.2d 912 (1974). For petty criminal contempts or for civil con-tempts, there simply is no constitutional right to a jury trial. Riccobene Appeal, 439 Pa. 404, 424-25 , 268 A.2d 104, 115 (1970).
As to the $150,000 fine, its conditional nature clearly indicates a civil contempt. Brocker v. Brocker, supra ; In re Martorano, supra. This fine was prospective — it sought to coerce future compliance with the May 13th order. The majority opinion recognizes the prospective purpose of the fine “which was returnable to appellants upon satisfying the court they had purged themselves of their contemptuous conduct.” At 1300. Since proof of future compliance with the injunction order would result in remittance of the $150,-000 fine, I fail to understand the majority’s steadfast adherence to the view that “it was a fine imposed for a past act.” Id. If it were in fact imposed for a past act, the appellants would have no opportunity to purge themselves of their contempt. Existence of the opportunity to purge by performing the requisite condition necessarily renders the $150,-000 fine civil.
As with the $153,000 fine, this fine ($150,000) was also civil and the statutory and constitutional safeguards for criminal contempt proceedings were not applicable. I would affirm the lower court on this issue, therefore, and proceed to the other issues.
. While approving the unjust enrichment measure for arriving at the amount of the civil contempt fine, the court nevertheless reversed the contempt order because, on the record before them, there was insufficient evidence to justify even a prima facie showing of the *36 amount of profit made by the defendant. Id. See also National Merchandising Corp. v. Leyden, Mass., 348 N.E.2d 771 (1976) (discussion and application of unjust enrichment theory to fines imposed for civil contempt); One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232 , 93 S.Ct. 489 , 34 L.Ed.2d 438 (1972) (discussion of unjust enrichment measure in forfeiture proceeding). Contra National Drying Mach. Co. v. Ackoff, 245 F.2d 193 (3d Cir. 1957), cert. denied 355 U.S. 832 , 78 S.Ct. 47 , 2 L.Ed.2d 44 (1957) (rejecting application of unjust enrichment measure in civil contempt proceeding).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9700828. Public record. Not legal advice.