In re B. , 247 Pa. Super. 395 ( 1977 )

JACOBS, Judge:

This appeal arises from an adjudication of contempt in the court below. For the reasons that follow, we have determined that appellant was held in direct criminal contempt, and therefore order transfer of this appeal to the Supreme Court.

A petition was filed in the Family Division of the Court of Common Pleas of Allegheny County, Pennsylvania,' for a hearing on deprived and delinquent charges regarding “B”. “B”, a fifteen year old boy with a long history of social and emotional problems, was brought before the court after running away from George Junior Republic and, with three companions, stealing four automobiles and one citizen’s band radio.

A court psychiatrist appointed to examine and evaluate “B” determined that several of “B’s” problems are related to a semi-absent father figure and an alcoholic mother, and recommended that the court obtain hospital records regarding “B’s” mother and her psychiatric treatment, presumably to aid in the diagnosis and placement of “B”. “B’s” mother refused to sign a consent form for release of her records, and the Western Psychiatric Institute and Clinic (WPIC) refused to release the records without the patient’s consent. Thereupon the court, TAMILI A, J., issued a subpoena to the Administrator of WPIC, ordering him to attend a hearing on April 26, 1976, and to bring with him all records pertaining to Mrs. “B”.

Dr. Loren Roth appeared at the hearing on behalf of WPIC, and was represented by counsel. Through counsel, Dr. Roth asserted that Mrs. “B’s” psychiatric records are privileged from judicial disclosure under the physician-patient privilege statute,¹ and Principle 9 of the Principles of Medical Ethics. The court below nevertheless determined the privilege not to apply in this case, and ordered Dr. Roth to turn over the records. When he refused, the court held him in contempt, and fined him $100, but stayed execution on the contempt proceedings for five days pending appeal.

On April 29, 1976, an appeal was filed with this Court at No. 747 April Term, 1976, and on May 4, 1976, the court below stayed its contempt order pending the outcome of this appeal.

The Supreme Court has exclusive jurisdiction over appeals from final orders of the common pleas courts in matters of direct criminal contempt.² In a civil contempt adjudication, however, this court has jurisdiction provided appeals of other matters involved in the case would properly lie with us. Woods v. Dunlop, 461 Pa. 35, 334 A.2d 619 (1975). Since we normally hear appeals from juvenile proceedings, a finding of civil contempt arising from a juvenile proceeding would be properly appealed to this Court. Although the court below, TAMILI A, J., characterized the action as direct civil contempt, this classification is not determinative. Woods v. Dunlop, supra, 461 Pa. at p. 40, n.2, 334 A.2d 619; Riecobene Appeal, 439 Pa. 404, 268 A.2d 104 (1970) (plurality opinion). Our guide, as the reviewing court, is the dominant purpose of the court below in issuing the contempt citation.

“If the dominant purpose is to prospectively coerce the contemnor to comply with an order of the court, the adjudication of contempt is civil. If, however, the dominant purpose is to punish the contemnor for disobedience of the court’s order or some other contemptuous act, the adjudication of contempt is criminal.

Dominant purpose of coercion or punishment is expressed in the sanction imposed. A civil adjudication of contempt coerces with a conditional or indeterminate sentence of which the contemnor may relieve himself by obeying the court’s order, while a criminal adjudication of contempt punishes with a certain term of imprisonment or a fine which the contemnor is powerless to escape by compliance.” In re Martorano, 464 Pa. 66, 77-79, 346 A.2d 22, 27-28 (1975) (footnotes omitted) (citations omitted).

In this case, no standards were attached to the sanction by which appellant could purge himself of his contempt, and appellant was in court when he refused to disclose Mrs. “B’s” records. This constituted direct criminal contempt. Khaus v. Knaus, 387 Pa. 370, 127 A.2d 669 (1956).

Finally, appellant was immediately assessed a $100.00 fine for his refusal to comply with the court’s order to turn over the records. The following excerpt from the court’s proceedings clearly indicates that appellant was powerless to escape this fine by compliance:

“THE COURT: I’m telling you now that we are giving you an Order to give me the records and tell us what’s in the files.

“DR. ROTH: I understand that.

“THE COURT: So, you are protected from the point of view you’re not giving anything.

“DR. ROTH: Yes.

“THE COURT: Except under duress.

“DR. ROTH: I understand that, but I’m going to refuse to give the records.

“THE COURT: Then I’m going to hold you in contempt, and we’ll fine you $100.00 right now for refusal to give us these records. It’s up to you if you want to proceed toward an appeal and supersedeas.” Printed Record at 14a-15a.

For the foregoing reasons, we therefore order this appeal transferred to the Supreme Court pursuant to Pa.R.A.P. 751(a).

SPAETH, J., files a dissenting opinion.

1 . Act of June 7, 1907, P.L. 462, No. 311, § 1, 28 P.S. § 328 (1958).

2 . Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202(5), 17 P.S. § 211.202(5) (1976-77).