source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    556 A.2d 1365
    Allen J. KLINE, D.O., Richard Glick, D.O. and George B. Dainoff, D.O., Individually and trading as K.G.D. OB-GYN Associates, P.C., c/o Dubyn & Smith, P.C., Appellants, v. BLUE SHIELD OF PENNSYLVANIA, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1988.
    Filed April 4, 1989.

      Jay R. Levenberg, Philadelphia, for appellants.
    Thomas E. Wood, Philadelphia, for appellee.
    Before CAVANAUGH, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County which granted the appellee’s motion for judgment on the pleadings and dismissed the appellants’ complaint. We affirm the judgment on the pleadings in favor of the appellee.

The facts of this case are virtually undisputed. In 1981, a dispute arose between the appellants, several obstetricians and their professional corporation (hereafter, referred to as “KGD”), and the appellee, Blue Shield of Pennsylvania (hereafter, referred to as “PBS”), regarding services performed by the participating doctors pursuant to their contract with PBS. PBS claimed that, from May of 1977 through 1981, KGD charged Blue Shield subscribers more than uninsured patients for identical procedures. PBS requested a refund for the overcharges. However, KGD claimed the charges were appropriate based on the participation contract with PBS and PBS’s By-Laws. This matter was then resolved in favor of PBS by the Medical Review Committee, an independent tribunal established pursuant to PBS’s By-Laws and 40 Pa.C.S.A. § 6324(c). Following a hearing, the Review Committee, in September of 1981, determined that KGD had overcharged PBS and directed KGD to refund the sum of $59,947.00. KGD refused, and, thereafter, from January 4, 1982 through October 16, 1982, PBS withheld fees due the appellants in order to reclaim the previous overcharges.

In March of 1982, KGD filed a complaint with the Pennsylvania Department of Health alleging that recovery of the claimed overcharges by withholding fees was unlawful. Finally, in February of 1984, the Department of Health held that PBS acted improperly and must refund fees totalling $59,947.00. See Pa. Blue Shield v. Commonwealth Dept. of Health, 93 Pa.Cmwlth.Ct. 1, 500 A.2d 1244, 1246 n. 1 (1985), allocatur denied 514 Pa. 632, 522 A.2d 560 (1987). PBS appealed the Department of Health’s decision to the Commonwealth Court, and, on November 13, 1985, our sister court expressly reversed, on the merits, “the department’s decision that Blue Shield improperly withheld $59,-947.” Blue Shield, 500 A.2d at 1248-1249.

On December 16, 1987, KGD filed a complaint in the Philadelphia County Court of Common Pleas alleging that PBS had unlawfully withheld payments due KGD for services rendered to PBS subscribers from January of 1982 through October of 1982, totalling $59,947.00. PBS admitted that it had withheld payments but denied any obligation to remit said funds. In its answer and new matter, PBS claimed this action was barred by collateral estoppel and/or res judicata based on the Commonwealth Court’s holding in Blue Shield, supra, 500 A.2d 1244. PBS also asserted the appellant’s claim was barred by the doctrine of arbitration and award and raised the defense of common law recoupment. Following PBS’s motion for judgment on the pleadings, the lower court entered judgment in favor of PBS, ruling that the issues raised herein had already been decided in PBS’s favor by the Commonwealth Court. This appeal followed.

On appeal, the appellants allege that the lower court erroneously granted the appellee’s motion for judgment on the pleadings based on the holding that the issues raised in KGD’s complaint had been finally adjudicated by the Commonwealth Court. KGD argues that the present action involves monetary claims for services related to entirely different patients and time periods than the prior administrative action. Therefor, according to KGD, “there is no identity of factual or legal issues, nor identity of cause of action. For these additional reasons, Defendant’s claim of res judicata or collateral estoppel must fail.” Appellants’ Brief, p. 11. The appellants also allege that the lower court erred in granting judgment on the pleadings when the appellees admitted owing the sums due and were foreclosed from counterclaiming a set-off due to the expiration of the statute of limitations.

In reviewing a trial court’s decision to grant judgment on the pleadings, we employ the following standard of review:

The reviewing court must determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986). The appellate court must confine its consideration to the pleadings and relevant documents, id., accept as true all well pleaded statements of fact by the party against whom judgment is granted ... and consider against him only those facts that he specifically admits. Jones v. Travelers Insurance Company, 356 Pa.Super. 213, 216, 514 A.2d 576, 578 (1986). Judgment on the pleadings may be granted only where the moving party’s right to succeed is certain and the case so free from doubt that a trial would clearly be a fruitless exercise. Id.

Keystone Automated Equip. v. Reliance, 369 Pa.Super. 472, 474-75, 535 A.2d 648, 649 (1988), allocatur denied 519 Pa. 654, 546 A.2d 59. See also E-Z Parks, Inc. v. Philadelphia Parking Authority, 110 Pa.Cmwlth. 629, 532 A.2d 1272 (1987), allocatur denied 519 Pa. 656, 546 A.2d 60 (1988); Beardell v. Western Wayne School District, 91 Pa.Cmwlth. 348, 496 A.2d 1373 (1985).

Instantly, we find that the trial court erred when it found “the issues raised by the pleading have already been decided by the Commonwealth Court[.] [T]his Court is bound by that decision.” However, upon review of the record, we are certain that the appellee is entitled to judgment on the pleadings, albeit for reasons other than those of the trial court. Jones v. P.M.A. Ins. Co., 343 Pa.Super 411, 495 A.2d 203 (1985) (appellate court may affirm action of lower court for reasons other than trial court’s reasons in support of the order); Butler v. Deluca, 329 Pa.Super. 383, 478 A.2d 840 (1984).

The appellants argue that the present action is not res judicata since the Commonwealth Court did not rule on the question of whether the appellee was entitled to withhold fees in the amount of $59,947.00. However, the pertinent question presently is what effect does the Medical Review Committee’s decision regarding PBS’s entitlement to $59,947.00 in overcharges have on this action. Since KGD failed properly to seek review of the Medical Review Committee’s decision, the issue of whether PBS was entitled to recover $59,947.00 from KGD has been finally adjudicated; Thus, the appellants are estopped from alleging that they do not owe $59,947.00 in wrongfully overcharged fees to PBS. See Schubach v. Silver, 461 Pa. 366, 375-77, 336 A.2d 328, 333 (1975) (if parties had prior opportunity to adjudicate same subject matter, all issues actually adjudicated and essential to judgment therein are final in subsequent action even though causes of action differ).

As a defense to the appellants’ claim sub judice for unpaid fees, the appellee asserts that the appellants are not entitled to recover because of KGD’s indebtedness, to PBS arising from the previous overcharges. The appellants contend that the appellee’s defense constitutes a counterclaim in the nature of a set-off which is barred by the statute of limitations. Contrary to the appellants’ contention, the appellee offers the defense of recoupment which is not a counter-claim or set-off, and, thus, is not affected by the statute of limitations. In Household Consumer Discount v. Vespaziani, 490 Pa. 209, 415 A.2d 689 (1980), our Supreme Court discussed the law regarding the defense of recoupment.

The doctrine of recoupment was derived from the civil law, and was adopted as a part of the common law. Under it a defendant is entitled to claim, by way of deduction, all just allowances or demands, accruing to him in respect of the same transaction that forms the ground of the action. This is not a setoff ... in the strict sense, because it is not in the nature of a cross demand, but rather it lessens or defeats any recovery by the plaintiff. It goes to the existence of the plaintiffs claim, and is limited to the amount thereof....
Recoupment goes to the foundation of the plaintiffs claim; it is available as a defense, although as an affirmative cause of action it may be barred by limitation. The defense of recoupment, which arises out of the same transaction as plaintiffs claim, survives as long as the cause of action upon the claim exists. It is a doctrine of an intrinsically defensive nature founded upon an equitable reason, inhering in the same transaction, why the plaintiffs claim in equity and good conscience should be reduced.

HCD v. Vespaziani, 415 A.2d at 694, quoting Pennsylvania R. Co. v. Miller, 124 F.2d 160, 162 (5th Cir.1942).

To further explicate the nature of the defense of recoupment, we offer the following examples. In Bull v. U.S., 295 U.S. 247, 55 S.Ct 695, 79 L.Ed. 1421 (1935), a decedent’s estate was assessed a tax by the United States government which was later determined to be in excess of its actual obligation. Because the statute of imitations had run, the estate could not seek a refund. Subsequently, the government filed suit against the estate to obtain a tax owed on income received as proceeds from a partnership agreement. The estate demanded that the excess tax previously paid be credited against the income tax liability. The Supreme Court allowed the estate’s claim, characterizing it as a recoupment. The Court stated: “This is because recoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiffs action is grounded. Such a defense is never barred by the statute of limitations' so long as the main action itself is timely.” Bull v. U.S., 295 U.S. at 262, 55 S.Ct. at 700, 79 L.Ed. at 1428. If we place KGD in the position of the U.S. government and PBS in that of the estate, the analogy is obvious and elaboration is unnecessary.

In Commonwealth v. Berks County, 364 Pa. 447, 72 A.2d 129 (1950), the Commonwealth sued Berks County for the costs of maintaining two county prisoners in a State mental institution. The County answered denying the Commonwealth’s right to recover because of an alleged debt due the County by the Commonwealth in excess of the sum in question. The County’s claim was derived from its right to reimbursement by the Commonwealth to the extent that the County’s contribution to the cost of maintaining the indigent insane (in general) was thereafter recovered by the Commonwealth from persons liable for the support of those committed. The Commonwealth contended that the County’s claim was a set-off or counterclaim which, without the consent of the Commonwealth, is not available as a defense. However, our Supreme Court found that the County’s claim was the defense of recoupment, stating:

It is plain enough that, in legal contemplation, the transaction out of which the respective claims of the Commonwealth and of the County arose was the same, viz., the maintenance in State institutions of insane persons from the County. It is an immaterial difference that the County’s claim relates to its past contributions for the maintenance of indigent insane for whose care it is no longer liable while the Commonwealth’s claim is for the maintenance of criminal insane for which the County continues to be liable. The case is appropriately one for enforcement of the County's right to recoupment.

Berks County, 72 A.2d at 130-131.

Similarly, it is immaterial that PBS’s claim is for a past debt arising out of KGD’s act of overcharging Blue Shield patients while KGD’s claim is for withheld fees due for services subsequently rendered to patients.

[33 Applying the aforementioned cases to the facts before us, it is abundantly clear that PBS has properly asserted the defense of recoupment. It is undisputed that KGD owed PBS the sum of $59,947.00 in overcharged fees while PBS was indebted to KGD in the amount of $59,947.00 representing withheld fees. Both debts arose out of the participating doctors’ contract between the parties, and the debts were based upon the payment of fees for medical services rendered to Blue Shield subscribers by KGD. Simply put, the appellants’ indebtedness to Blue Shield in an amount identical to the appellee’s indebtedness defeats any recovery by the appellants. The appellants would have this court award the withheld fees and yet ignore a debt to PBS which they refuse to pay. Neither law nor equity would favor such a result. Instantly, the appellee’s right to succeed is certain, and this case is so free from doubt that a trial would clearly be a fruitless exercise. Accordingly, we affirm the lower court’s order granting judgment on the pleadings in favor of Blue Shield of Pennsylvania.

Order affirmed.

      . The Department of Health also held: PBS must revise its regulations for participating doctors regarding, inter alia, involuntary withholding of fees; and PBS must undertake a comprehensive review and revision of its methods of providing participating doctors with an adequate and fundamentally fair procedure for defending themselves against allegations of overcharging.

      . The appellant is correct that the present issue was not finally determined by the Commonwealth Court. Although the Commonwealth Court did determine that PBS was entitled to withhold fees, the Commonwealth Court further held: “The department also erred as a matter of law. Careful review of the governing statute establishes that the department has no authority to issue money judgments in favor of health providers against Blue Shield." Blue Shield, 500 A.2d at 1249. In so reasoning, the court stated:
      In 40 Pa.C.S. § 6324(c), the law expressly authorizes health service doctors (as prescribed in the professional health service corporation by-laws) to hear and decide disputes between the doctors and the professional health service corporation. In this case, Blue Shield’s Medical Review Committee performed that function by hearing and deciding this overcharge dispute. Health service "regulations" which the department must review and approve are no more than contractual agreements between the doctor and the professional health service corporation. A doctor can always seek review of an unfavorable Medical Review Committee decision concerning a contractual provision with the professional health service corporation in the appropriate state court with jurisdiction over contract disputes.

        Blue Shield, 500 A.2d at 1250.
      Since the Department of Health did not have jurisdiction to adjudicate the propriety of the withholding of fees by PBS, the Commonwealth Court, likewise, did not possess the requisite jurisdiction to rule upon KGD’s claim of wrongful withholding of fees. It is equally clear that the Commonwealth Court could not review the Medical Review Committees determination that KGD overcharged PBS’s subscribers for certain procedures since it is not “the appropriate state court with jurisdiction over contract disputes.”

      . We note that HCD v. Vespaziani, supra, concerns the doctrine of recoupment under federal law. However, it is clear that the doctrine of recoupment is recognized and applied in the Commonwealth of Pennsylvania.


author: BROSKY, Judge: KELLY, Judge,

text:
    556 A.2d 1370
    In the Interest of Anthony McFALL. Appeal of COMMONWEALTH of Pennsylvania. (Nine Cases) In the Interest of Robert WISE. In the Interest of Anthony WHETSTONE. In the Interest of Perry WALLACE. In the Interest of Christopher VINCENT. In the Interest of Gilbert ORSINI. In the Interest of Jamal CONNOR. In the Interest of James MILES. In the Interest of Terry FOSTER. COMMONWEALTH of Pennsylvania, Appellant, v. Leon JOHNSON. COMMONWEALTH of Pennsylvania, Appellant, v. Ronnie PIERCE. COMMONWEALTH of Pennsylvania, Appellant, v. Robert JACOBS. COMMONWEALTH of Pennsylvania, Appellant, v. Robert LEWIS, Jr. COMMONWEALTH of Pennsylvania, Appellant, v. Ali SCOTT. COMMONWEALTH of Pennsylvania, Appellant, v. David GILES. COMMONWEALTH of Pennsylvania, Appellant, v. Lawrence GOUCH. COMMONWEALTH of Pennsylvania, Appellant, v. Kenneth GRAHAM. COMMONWEALTH of Pennsylvania, Appellant, v. Michael JENKINS. COMMONWEALTH of Pennsylvania, Appellant, v. Michael HATTON. COMMONWEALTH of Pennsylvania, Appellant, v. Cedric BOHANNON. COMMONWEALTH of Pennsylvania, Appellant, v. Edward BROWN. COMMONWEALTH of Pennsylvania, Appellant, v. Patrick GARRETT. COMMONWEALTH of Pennsylvania, Appellant, v. Timothy REEVES. COMMONWEALTH of Pennsylvania, Appellant, v. James M. ROSSER. COMMONWEALTH of Pennsylvania, Appellant, v. Jose TORRES. COMMONWEALTH of Pennsylvania, Appellant, v. Marcus WARD. COMMONWEALTH of Pennsylvania, Appellant, v. Aaron WHITE. COMMONWEALTH of Pennsylvania, Appellant, v. James WALKER. COMMONWEALTH of Pennsylvania, Appellant, v. Ricardo SEARS. COMMONWEALTH of Pennsylvania, Appellant, v. Dennis MASON. COMMONWEALTH of Pennsylvania, Appellant, v. Ralph RIVERA. COMMONWEALTH of Pennsylvania, Appellant, v. George H. MALENEY. COMMONWEALTH of Pennsylvania, Appellant, v. Brian BRAXTON.
    Superior Court of Pennsylvania.
    Argued May 24, 1988.
    Filed April 6, 1989.
    Reargument Denied June 19, 1989.

      Karen L. Grigsby, Assistant District Attorney, Philadelphia, for Com., appellant.

      Before BROSKY, KELLY and HOFFMAN, JJ.
   BROSKY, Judge:

This is a consolidated appeal by the Commonwealth seeking reversal of the order of the Court of Common Pleas granting new adjudicatory hearings to all defendants who had various hearings before Judge Mary Rose Fante Cunningham.

This relief was granted because Judge Cunningham had, for a period of several months, been working as an “undercover agent” of the FBI regarding illegal payments by union officials to Common Pleas judges in Philadelphia. Judge Cunningham wore a recording device and recorded conversations with other judges for the benefit of Federal authorities. During this period of time Judge Cunningham continued to preside over criminal matters.

The history of these cases is as follows. In December, 1985, Judge Cunningham accepted $300.00 from Steven Traitz, Jr., an official of the Roofers’ Union. Unbeknownst to either party the transaction was tape recorded by Federal agents. After learning that the conversation had been recorded, and being confronted by authorities, Judge Cunningham agreed to cooperate with the FBI in an ongoing investigation concerning cash gifts from the Roofers’ Union to certain judges of the Philadelphia Court of Common Pleas. Part of Judge Cunningham’s agreement with the FBI and the U.S. Attorney’s Office was that she would tape record conversations as requested by the FBI. The letter of agreement provided that no Federal or state laws would be violated in the course of Judge Cunningham’s cooperation, and explicitly stated that no immunity from state prosecution or other disciplinary proceedings would be afforded. However, the agreement promised that Federal authorities would make known to any court or other investigating or prosecuting body the full extent of the Judge’s cooperation.

The period of Judge Cunningham’s cooperation extended from February 12, 1986 through November 13, 1986. On November 17,1986, the Judge’s involvement became publicly disclosed. Prior to this date, these facts were known only to the Judge herself, certain officials of the FBI, the Office of the United States Attorney, and the Judge’s husband. During this time, Judge Cunningham actively participated in electronic eavesdropping by wearing a hidden recording device and surreptitiously recording conversations with Judge Mario Driggs and Judge Esther Sylvester, both of whom were subsequently indicted on Federal charges arising out of cash gifts received from the Roofers’ Union. During this period, Judge Cunningham continued to preside in criminal and juvenile matters. On November 19, 1986, after her involvement became publicly known, Judge Cunningham was transferred by the Administrative Judge to the Family Court Division to hear non-criminal matters. On February 2, 1987, she was suspended by Order of the Supreme Court of Pennsylvania pending further action by the Court or its agencies.

Beginning on December 3,1986, the Defender Association of Philadelphia, on behalf of twenty-nine appellees, filed motions seeking the nullification of all judicial actions taken in their respective cases by Judge Cunningham while she was simultaneously acting as an “undercover agent.” The Judge’s actions were challenged as violative of the Pennsylvania Constitution’s separation of powers doctrine, the federal guarantee of due process of law, and Pennsylvania case law requiring the recusal of a judge where even the appearance of impropriety surfaced. The appellees also alleged that Judge Cunningham had a real and tangible bias in their cases, since she was subject to prosecution for her actions by the District Attorney of Philadelphia, the prosecuting authority in each of the cases before her.

In the interest of judicial economy, the motions were assigned to the Honorable Carolyn Engel Temin of the Court of Common Pleas, Criminal Trial Division, for disposition. Judge Temin, finding for appellees, granted relief as follows: each appellee who had any portion of his case handled by Judge Cunningham was granted new proceedings, e.g. adjudicatory, preliminary and certification hearings, Municipal Court trials, and hearings on motions to quash. If the same result was obtained as at the original hearing, the case would be returned to its current status. All orders granting this limited relief were stayed pending appellate review.

The Commonwealth then filed an Application for the Assumption of Plenary Jurisdiction in the Pennsylvania Supreme Court, a request which the appellees joined. However, the Supreme Court denied this application. Subsequently, appellees filed motions in the Superior Court to quash the Commonwealth’s appeals in 23 of the 32 cases, alleging that they were interlocutory. This court granted the motions to quash, but reinstated the appeals upon the Commonwealth’s Petition for Permission to File an Interlocutory Appeal, consolidating them with nine appeals of right in which this court’s jurisdiction had not been challenged. On appeal, the Commonwealth seeks reversal of Judge Temin’s order granting all thirty-two appellees relief.

In granting the relief discussed above, the trial court stated that since Judge Cunningham agreed to cooperate as an undercover investigator for federal authorities on condition that her cooperation be made known to anyone who might be prosecuting her in the future, she placed herself in a position where she may have had a bias. As such, where the rights of defendants are involved, that bias must be revealed. Judge Temin’s opinion states that “[wjhen that person is a witness, such facts must be made known to the judge or jury. To do otherwise would deny the defendant his Sixth Amendment right to confrontation. Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986). It follows that where the person is a judge, the facts must be revealed to the attorneys representing the litigants appearing before her and to do otherwise denies the litigants their Fifth and Fourteenth Amendment due process rights to an impartial tribunal.”

Although rare, instances of judicial Mas are not unprecedented in Pennsylvania. In Commonwealth v. Bryant, 328 Pa.Super. 1, 476 A.2d 422 (1984), a panel of this court remanded for a redeterniination of post-verdict motions and sentencing should that be necessary after disposal of post-verdict motions. This determination followed proceedings which disclosed that the trial judge had commented that, in order to generate pre-election publicity for himself, the date for a convicted individual’s sentencing would be moved up to the day preceding an election in which the judge was a candidate and that he would award the maximum possible sentence.

The appellant sought recusal of that judge from a panel of judges hearing both the recusal motion and the post-verdict motions. This was not done and the decision was appealed. The Commonwealth argued that empanelling an en banc court adequately safeguarded appellant’s right to an unbiased decision and the public’s confidence in the impartiality of the judicial decision-making process.

We disagreed and vacated the judgment of sentence stating: “[wjhile a court en banc may attenuate the possibility of judicial prejudice, having the challenged judge as a member of the panel does not adequately preserve the integrity of the recusal hearing.” 476 A.2d at 426. Implicit in this statement is the principle that not only will bias and partiality be grounds for remedial action but also that even the appearance of bias and partiality cannot be tolerated. This principle is illustrated in language of our Supreme Court in Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982), where they stated:

A jurist’s impartiality is called into question whenever he has doubts as to his ability to preside objectively and fairly in the proceeding or where there exists factors or circumstances that may reasonably question the jurist’s impartiality in the matter. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976); Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973).

The Court also states that “[rjeeusal is required whenever there is substantial doubt as to a jurist’s ability to preside impartially.” Id., 447 A.2d at 252.

In Commonwealth v. Berrigan, 369 Pa.Super. 145, 535 A.2d 91 (1987), this court, sitting en banc, stated “[a]fter carefully considering the record as a whole, we conclude that one might reasonably question the impartiality of the trial judge in this case and that resentencing is in order.” Id., 535 A.2d at 104. It is important to note that we did not find that the trial judge was in fact biased or that the appellant had been prejudiced in the form of receiving a greater sentence than would have been expected from an impartial judge. We simply concluded that because one could reasonably question the impartiality of the trial judge it was improper for him to sentence the appellant. As such, appellant was entitled to a resentencing in front of a different judge. There are perhaps several reasons for taking such a strong position on judicial bias, among them are due process guarantees.

The United States Supreme Court has previously set forth standards for fairness and impartiality of trial judges in appeasement of due process guarantees. Justice Black writing for the court in In Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), stated:

A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that “Every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.” Tumey v. State of Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927). Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11. (1954).

The passage speaks for itself in unequivocal and uncompromising fashion. Due process will be violated not only if one actually fails to receive an unbiased tribunal, but also if circumstances are such as to provide temptation away from a truly unbiased and impartial tribunal. In such cases the integrity of the result is compromised to an intolerable degree and the result cannot be considered a product of due process of law. If there was any doubt as to the ongoing validity of this stance, it appears the court’s more recent decision in Aetna Life Insurance Company v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), reaffirmed this principle.

The Aetna Life Insurance case involved a situation where the right to punitive damages for a bad faith refusal of an insured to pay benefits was being litigated. An award against Aetna in the amount of $3.5 million was appealed to the Alabama Supreme Court and affirmed in a 5-4 decision. One of the justices in the majority, Justice Embry, also happened to be a litigant in a class action suit against insurance companies which involved issues of punitive damages. Aetna sought a rehearing of the case and challenged the participation of Justice Embry in both the original decision and rehearing petition. Justice Embry nonetheless participated in the decision of the application for rehearing which was denied by a 5-4 vote. On appeal to the United States Supreme Court the decision was vacated and remanded.

The Court addressed two specific claims of prejudice or bias raised by Aetna. The first, it was argued, was the general hostility towards dilatory insurance companies which was evident from the depositions of Justice Embry. The Court stated that only in extreme cases would disqualification on this basis be constitutionally required while reaching the conclusion that appellant’s arguments fell short of that status. The second claim was that Justice Embry’s status as a plaintiff in a similar case against an insurance company created an interest in the outcome of the Aetna case. With this contention, the Court agreed. The Court found that the Aetna case “had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case.” 106 S.Ct. at 1586. The Court went on to state: “we make clear that we are not required to decide whether in fact Justice Embry was influenced, but only whether sitting on the case then before the Supreme Court of Alabama ‘would offer a possible temptation ... to the average [judge] ... [to] lead him to not to hold the balance nice, clear and true.’ ” Id., at 1587.

The Aetna and Murchison cases discussed minimum levels of scrutiny or protection consistent with due process standards while indicating that the states are free to take an even stricter stance on the issue. The cases here in Pennsylvania, while not explicitly indicating a stricter approach than that constitutionally mandated, do seem to be strict indeed. In Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983), our Supreme Court stated:

Although we find no evidence of bias and are convinced the judge acted in what he sincerely felt was a proper manner, we nevertheless believe appellant is entitled to resentencing by another judge because certain remarks the judge was said to have made about appellant could raise a reasonable question concerning his impartiality in sentencing.

459 A.2d at 730. The Court concluded its opinion by stating:

We are convinced the trial court acted with complete integrity in assuring appellant it harbored no prejudice against him. Moreover, we do not imply that the hearsay statements, said to show bias, affected sentencing. However, a defendant is entitled to sentencing by a judge whose impartiality cannot reasonably be questioned.

459 A.2d at 732.

In similar fashion, this Court also found that the appearance of potential or possible bias or partiality required vacation of a support order and a remand for assignment of an out-of-county judge or a change of venue, in the case of Commonwealth ex rel. Armor v. Armor, 263 Pa.Super. 353, 398 A.2d 173 (1978). The facts precipitating this holding in Armor were that a woman who was involved in support proceedings in Montgomery County had been remarried to a Common Pleas Judge in that county. We indicated our disagreement with appellant’s contention that he could not receive a fair and impartial hearing in Montgomery County. Nevertheless, we disapproved of the procedure whereby any of the judges of the Court of Common Pleas of Montgomery County were called upon to rule on support matters relating to the wife of one of the judges while adding the following commentary:

We immediately add that our detailed review of this record does not reveal a single instance of bias, prejudice or unfairness. Nevertheless, the judicial system must be kept, like Caesar’s wife, above reproach. Under the circumstances here presented, the appearance of appellee before the bench of Montgomery County, involving as it must her remarriage to a member of that bench, demands that such a case not be heard by any of the judge-husband’s colleagues.

398 A.2d at 174.

In the context of the above recited case law, we do not have great difficulty in affirming the trial court’s disposition of these consolidated appeals. Judge Cunningham did receive a sum of money from an official in a labor union. This fact alone would have the effect of eroding the confidence of the public in her dispositions and creating a lack of integrity in those dispositions. However, this particular fact must be considered minimal in comparison to the fact that Judge Cunningham then agreed to assist the federal authorities in criminal investigations of other judges on the bench in exchange for a promise that her cooperation would be made known to prosecuting authorities should she be charged herself. Not only did she align herself with a prosecuting office but she also clearly recognized the possibility that her “cooperation” might be a factor favorable to her in the event of such prosecution. Undoubtedly, the threat of prosecution could tempt an ordinary person to not hold the balance between the defendant and the Commonwealth nice, clear and true. Just as clearly these circumstances could lead reasonable individuals to question her impartiality.

The public confidence in the integrity of the criminal justice system will not be served by leaving unredressed the role of a judge in deciding key phases of criminal prosecution while also working for prosecuting authorities during the same period of time. All of these factors are also exacerbated by the fact that Judge Cunningham was the primary decision making body in the cases on appeal here. While the possibility that judicial bias will actually work to prejudice a defendant is attenuated somewhat when the judge presides over a jury trial, the same cannot be said when the judge makes the decision in question herself. In such cases the potential for prejudice is much greater and the possibility of bias must be even more carefully safeguarded. See, Commonwealth v. Berrigan, 369 Pa.Super. 145, 535 A.2d 91, 104 (1987).

Even if the judge in such circumstances makes a conscious effort to decide impartially, there is always an unwarranted risk that the circumstances will work on a subconscious level to influence the decision despite the best efforts of the judge to remain impartial. Consequently, for the above reasons, we believe the threat of bias and appearance of impropriety was significant enough in the present case under due process guarantees and our own judicial decisions to warrant the limited relief granted below.

Order affirmed.

KELLY, J., files a dissenting opinion.

KELLY, Judge,

dissenting:

I dissent. The majority opinion is in direct and irreconcilable conflict with prior opinions of this Court. See Commonwealth v. Weeks, 381 Pa.Super. 411, 554 A.2d 68 (1989); Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988); see also Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985); Commonwealth v. Vance, 376 Pa.Super. 493, 546 A.2d 682 (1988).

The juvenile defendants in these consolidated cases have made no attempt to establish a nexus between Judge Cunningham’s alleged and proven misconduct and the dispositions of various motions which they challenge. Review of the record in each case reveals no such nexus, no errors of law, and no apparent abuse of discretion with respect to these cases. I find no basis to vacate orders entered by Judge Cunningham prior to her removal from the bench without establishing a clear nexus between her alleged and proven misconduct and the challenged orders. See Commonwealth v. Hewett, supra; see also Commonwealth v. Weeks, supra (following Hewett).

I note that the eases relied upon by the majority to reach a contrary conclusion fall into two g'eneral categories: cases involving pre-disposition motions for recusal due to an appearance of impropriety; and, eases involving pas-i-disposition motions for new proceedings when a clear nexus between judicial misconduct and the challenged disposition had been established. Because I find neither category applicable to the cases presented here, I find the cases cited inapposite, and the conclusion reached by the majority unsupported.

Based upon the foregoing, I dissent.

      . Additional petitions raising the same issues were similarly filed by private counsel.

      . We would add that if, at the time of this opinion, some of the appellees would prefer not to go through any further proceedings, they may refuse the relief granted.


author: TAMILIA, Judge:

text:
    556 A.2d 1377
    COMMONWEALTH of Pennsylvania v. Francis J. RYAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1989.
    Filed April 10, 1989.
    Kyle A. Burch, Glen Mills, for appellant.

      Andrew J. Bellwoar, Assistant District Attorney, Media, for Com., appellee.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This is a timely appeal of judgment of sentence entered for a violation of 75 Pa.C.S. § 1543(b) for driving while operating privileges were suspended for a driving under the influence (DUI) related offense. Following a de novo review by the trial court of a district justice’s finding of guilt, appellant was sentenced to pay a fine of $1,000 plus costs and to serve a term of imprisonment of ninety (90) days.

Appellant incurred certain driver license suspensions for a period, when totaled, extending beyond December 11, 1987, the date from which the instant conviction stemmed. Appellant was caught by police operating a motor vehicle on that date and there is no question that at the time he was stopped he was driving while his operating privileges were suspended and, thus, he was operating the motor vehicle illegally. The issue raised by appellant is whether he can be convicted of the crime with which he was charged, namely, operating a motor vehicle when Ms license was suspended due to a DUI related offense. Appellant first surrendered his driver’s license on October 12, 1985 as a result of motor vehicle offenses unrelated to any DUI charges. Subsequently, on July 7, 1986, appellant was convicted of DUI pursuant to 75 Pa.C.S. § 3731, which resulted in a one-year suspension of his license pursuant to 75 Pa.C.S. § 1532(b)(8). Neither the record, parties’ briefs, nor trial court’s Opinion state what the exact prior offense was which resulted in the earlier license suspension on October 12, 1985, nor do they discuss or set forth the exact length of the prior license suspension or the date the suspension commenced. Although this omission is disturbing, it is not fatal, and does not require remand due to the record’s clear indication this prior suspension when tacked onto the DUI suspension would encompass the date appellant was stopped for the instant conviction, i.e. December 11, 1987. The record does indicate the Department of Transportation determined the DUI related suspension should begin on October 30, 1987.

Appellant argues he cannot be convicted under section 1543(b) because the one-year suspension for DUI took precedence in time over the earlier unexpired suspension and, therefore, commenced running on the date of conviction for the DUI offense, July 7, 1986. This would mean the one-year DUI suspension would have run prior to appellant’s citation on December 11, 1987 for driving while operating privileges were suspended for a DUI related offense. Appellant would have the unexpired portion of the prior non-DUI related suspension recommence upon the end of the one-year DUI related suspension, on July 7, 1987. Because appellant was not cited by police until after July 7, 1987, the suspension in effect at that time under appellant’s theory would not be related to a DUI suspension and could not result in a violation of 75 Pa.C.S. § 1543(b), with which appellant was charged. We find appellant’s argument devoid of merit.

Under 75 Pa.C.S. § 1532(b)(3), the Department of Transportation is directed to “suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver’s conviction of section 3731 [75 Pa.C.S. § 3731] (relating to driving under influence of alcohol or controlled substance).” This is a mandatory suspension and it is to become effective on a date set by the Department of Transportation as authorized by 75 Pa.C.S. § 1540(b), which provides: “[t]he suspension or revocation shall be effective upon a date determined by the department or the date of surrender of the license to the department if that date is subsequent to the department’s notice to surrender the license, whichever occurs first.” In cases such as appellant’s, when a person’s record “shows an additional suspension of [their] operating privilege assessed during a period of suspension or revocation the department shall extend the existing period of suspension ... for the appropriate period” pursuant to 75 Pa.C.S. § 1544(b). For this reason, the department acted properly in extending appellant’s existing license suspension period by twelve months from the date that appellant’s current suspension ended. Therefore, appellant was properly convicted under 75 Pa.C.S. § 1543(b), since his violation occurred on December 11, 1987, within the twelve-month suspension period which began on October 80, 1987, as determined by the department.

There is nothing in the law which provides a license suspension can be suspended to allow for the running of another license suspension and recommenced after the other suspension has expired. License suspension for un-J related violations are not to be served concurrently but must be served consecutively. Commonwealth v. Martin, 102 Pa.Commw. 23, 517 A.2d 216 (1986). Accordingly, we affirm on this issue.

Next, in a two sentence boilerplate argument, without citation to case law, appellant claims Ms sentence is a cruel and unusual punishment in contravention to article I, section 18, of the Pennsylvania Constitution. Normally, this sentencing issue would be waived for failure to present it in a motion to modify sentence pursuant to Pa.R.Crim.P. 1410, however, because the issue raises the legality of the sentence imposed, it may be raised for the first time on appeal. Commonwealth v. Wilson, 812 Pa.Super. 77, 458 A.2d 244 (1983). Appellant’s constitutional challenge to § 1543(b) is without merit. In Commonwealth v. Hoover, 343 Pa.Super. 372, 494 A.2d 1131 (1985), we upheld the constitutionality of section 1543(b) and specifically found the imposition of mandatory license suspensions did not constitute cruel and unusual punishment because such a penalty is neither disproportionate to the gravity of the offense nor repugnant to societal standards of justice.

We find appellant’s remaining claim, concerning proof of appellant’s actual notice of the suspension, is not preserved for failure to include it in post-trial motions, and point out the issue was never addressed by the court below. Com monwealth v. Cardona, 316 Pa.Super. 381, 463 A.2d 11 (1983); see Pa.R.Crim.P. 1123.

Judgment of sentence affirmed.


author: HOFFMAN, Judge:

text:
    556 A.2d 1379
    Paul H. GOODMAN v. Lorraine GOODMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1988.
    Filed April 6, 1989.

      Cathy M. Lojewski, North East, for appellant.
    Robert C. Ward, Erie, for appellee.
    Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order of the Court of Common Pleas of Erie County holding appellant-mother in contempt and awarding physical and legal custody of a minor child to appellee-father. Appellant contends that (1) a custody order entered by a Pennsylvania court was later modified by an order of a West German Court thereby divesting Pennsylvania courts of the authority to hold appellant in contempt; (2) the court below lacked in personam jurisdiction and venue; and (3) the court abused its discretion in holding appellant in contempt. For the reasons that follow, we affirm the order below.

This custody battle has been waged on three fronts: Philadelphia, Pennsylvania, Erie, Pennsylvania, and the Federal Republic of Germany. For the sake of clarity, the proceedings in each venue will be discussed separately even though at times they have coincided. The parties were married on February 16, 1980, in Luzerne County, Pennsylvania, and they had one child, Henry John Goodman, who was born July 21, 1980, in Philadelphia. Until the parties separated on May 16, 1981, they and the minor child continued to reside in Philadelphia. On May 29, 1981, a custody action was commenced by appellant in the Court of Common Pleas of Philadelphia County (hereinafter “the Philadelphia Court”). See Lower Court Memorandum and Order, November 17, 1987 at 2. In the meantime, appellant-mother and Henry John had moved from the marital residence to the home of appellant’s parents in Pottstown, Pennsylvania, where they lived through June 1981.

As of July 1, 1981, appellant, who is a physician in the United States Army, was to be stationed at Walter Reed Army Medical Center in Washington, D.C.; at the end of June 1981, she and the child moved to Silver Spring, Maryland. The parties were divorced by a decree entered by the Philadelphia Court on May 4, 1982. Approximately sixteen months later, on August 29, 1983, the court entered, by stipulation, a temporary order awarding primary physical custody of Henry John to appellant and awarding partial physical custody on alternate weekends to appellee. The proceedings before the court continued as follows:

At about the same time, protracted hearings on the issue of custody began in earnest.
Throughout this time, Mother ... failed to abide by the Court’s order for partial custody in Father.
Father filed several Petitions for Contempt____
On May 13, 1985, when Mother and Father were personally before [the] Court, [the Court] entered another temporary partial custody order in favor of Father and also colloquied Mother with respect to her obligation to comply with the Order. In addition, and because of a suggestion raised by Father that Mother intended to flee the jurisdiction by obtaining new Orders from her employer, the United States Army, [the Court] questioned Mother as to her residence, intentions for residence, transfer intentions, etc. and provided that she be personally served that very day with notice of further hearing in the matter for July 3, 1985. At all times, Mother informed me that she intended to return to the Court on July 3, 1985 for further, and [the Court] had hoped final, hearings in the mátter.
Nonetheless, Father learned that Mother was indeed intending to flee the jurisdiction and on June 27, 1985, and in my absence, Judge Posarina of this Court entered an Order placing physical custody of the child with Father and directing the sheriffs to enforce that Order. This Order was entered after specific findings as to Mother’s intention to remove the child from the jurisdiction of the Court.

Lower Court Memorandum and Order, November 17, 1987 at 1-3.

The next hearing in this case was held on July 3, 1985, as had been previously arranged. Appellant, however, failed to attend, even though she had told the court that she would be present. N.T. May 13, 1985 at 46; N.T. July 3, 1985 at 2-3. Further, appellant had notice of the hearing, as the court had informed her of it during the May 13 hearing, by mail, and again, during a telephone conversation. N.T. July 3, 1985 at 2-3. Appellee also had mailed notices of the hearing to appellant, which were returned, having been postmarked “Return to sender. Moved. Left no address.” Id. at 4; see also Exhibits P-1 to P-6, July 3, 1985 (included in record in Goodman v. Goodman, No. 81-13692, appeal docketed, 3436 PHL 87 (appeal filed Dec. 11, 1987)). At the July 3 hearing, appellee

produced evidence showing that Mother was intending to remove the child to the Federal Republic of Germany and [the Court] entered Orders on July 3, 1985, setting forth the history of the matter, Mother’s failure to appear and placing custody of Henry Goodman with Father. [The Court] directed that different Orders be served on both the Department of State of the United States of America and the United States Army, and [the Court] also found Mother to be in contempt of several Orders of this Court and fined her for her obdurate and vexatious conduct. The Order placing custody in Father was reaffirmed and [the Court] directed that the legal authorities assist in the enforcement of this Order.

Lower Court Memorandum and Order, November 17, 1987 at 3-4. Additionally, the court ordered that appellant would have the opportunity to purge herself of the contempt by appearing at the next scheduled hearing. N.T. July 3, 1985 at 21-22.

On October 9, 1985, the Philadelphia Court held another custody hearing at which appellant was neither present nor represented by counsel. Both the court and appellee had mailed notices of the hearing to her. N.T. October 9, 1985 at 2-3. During the hearing, the court was specifically informed that appellant knew even before the May 13 hearing that she was to be reassigned overseas as she had applied for an overseas transfer on April 2, 1985, received the notice of reassignment on April 8, and received authorization to take the child with her on April 26. Id. at 5-6; see also Exhibit 6 (April 2, 1985 reassignment request; April 8 reassignment order; April 26 authorization for concurrent travel for dependent Henry John Goodman). According to her reassignment orders, appellant was to have reported overseas between June 27 and July 1, 1985, see Exhibit 6. We note that appellant’s whereabouts during both the July 3 and October 9 hearings were confirmed by appellant in her appellate brief: she was in West Germany, having departed on May 15, 1985 and arriving there the following day. Brief for Appellant at 6. In other words, she departed just two days after the May 13 hearing at which she had assured the Philadelphia Court that she would attend the next scheduled hearing. N.T. May 13, 1985 at 46; Lower Court Memorandum and Order, November 17, 1987 at 1-3.

The court considered several sanctions against appellant for her continued failure to comply with the then-temporary custody order and her apparently willful disregard of the court’s authority and process. The court entered a final order awarding physical and legal custody of Henry John to appellee under the supervision of the Erie County Department of Human Services and reserved decision on other outstanding sanctions and petitions. See Lower Court Opinion, February 3, 1989 at 3 (included in record in Goodman v. Goodman, No. 81-13692, appeal docketed, 03436 PHL 1987 (appeal filed Dec. 11, 1987)); Lower Court Memorandum and Order, November 17, 1987 at 4-5; N.T. October 9, 1985 at 9-16; Lower Court Order, October 9, 1985. No appeal was taken from the order of October 9, 1985.

Some twenty-five months later, on November 17, 1987, the Philadelphia Court issued a Memorandum and Order for the purpose of explicating its prior order dated October 9, 1985. The issuance of that order seemingly was an accommodation to the West German Courts, as the lower court states,

The German courts were confused as to the notation ‘decision reserved’ on our order of October 9, 1985; in particular, they wondered about whether the order granting [custody to] Mr. Goodman was a final order. Therefore, on November 12, 1987, we entered an order solely for the purpose of clarifying previous actions and orders of this Court.

Lower Court Opinion, February 3, 1989 at 2. On November 17, 1987, the following order was recorded by the court:

1. That physical and legal custody of Henry John Goodman was awarded to his Father, Paul Goodman, on October 9, 1985;
2. That Mother has been found in contempt of this Court and that in over two years she has taken no steps to purge herself of this contempt.
3 That Mother has continued to refuse to comply with the custody order of this Court entered October 9, 1985.
4. That bench warrants for the arrest of Mother are outstanding in this Commonwealth, and that the Court hereby requests the lawful authorities of other jurisdictions to assist in the enforcement of the Orders of this Court dated June 27, 1985, July 3, 1985, October 9, 1985, and this date in that the law enforcement authorities or other jurisdictions are specifically requested to obtain the minor child, Henry Goodman, remove said child from the physical possession of his Mother, and return said minor child to the lawful custody of his Father in this jurisdiction.

Lower Court Memorandum and Order, November 17, 1987 at 5-6. An appeal from the November 17 order currently is pending in this Court. See Goodman v. Goodman, No. 81-13692, appeal docketed, 3437 PHL 1987 (appeal filed Dec. 11, 1987).

Concurrent with the Philadelphia County proceedings, the Court of Common Pleas of Erie County (hereinafter “the Erie Court”) was grappling with this case. The Erie Court became involved when appellee, who had relocated in Erie County, petitioned that court to register the final Philadelphia custody order of October 9, 1985. The court granted the petition. See Lower Court Order, April 7, 1986. Thereafter, on October 15, 1987, appellee filed a contempt petition, along with a notice and order to appear. After a hearing, held on November 16, 1987, at which appellant was represented by counsel but from which she was absent, the Erie Court granted appellee’s petition. Appellant then filed a request for reconsideration, which was denied. On December 8, 1987, the Erie Court entered the following contempt order:

1. Physical and legal custody of Henry John Goodman is again awarded to the father, Dr. Paul H. Goodman.
2. Mother is in contempt of this Court and in over two years has taken no steps to purge herself of this contempt.
3. The mother’s continued refusal to comply with the Order of this Court is deemed willful and intentional and obstructive.
4. Bench warrants shall be issued for the arrest of the mother in this Commonwealth and the Court hereby instructs the lawful authorities of other jurisdictions to assist in the enforcement of the Orders of this Court and its predecessor Orders issued out of the Court of Common Pleas of Philadelphia County and this Order issued presently, and that the law enforcement authorities of other jurisdictions are specifically requested to obtain the minor child, Henry Goodman, and remove the child from the physical possession of his mother, and return said minor child to the lawful custody of the father in this jurisdiction.
5. A bench warrant shall be issued for the arrest of the mother for violations of the laws of the Commonwealth of Pennsylvania, to-wit 18 Pa.C.S.A. 2904.[]
6. Continued failure of the mother to return the child, causing the father to spend excessive sums of money on counsel fees and expenses, now warrants the assessment of those counsel fees and expenses in the amount of $16,000.00 in favor of the Petitioner and against the Respondent.

Memorandum Opinion and Order, December 8, 1987 at 5-6. This timely appeal followed.

In the third venue, the Federal Republic of Germany, appellant petitioned the courts for custody of Henry John even before her arrival in May 1985; her attorney stated at the Erie contempt hearing in Erie that

in fact, according to the order that was made by the German Court that it was in April of 1985, she had her orders for making this assignment to West Germany and she had this information before the Family Court there and received the Family Court’s permission to allow her and her child to go to West Germany.

N.T. November 16, 1987 at 18. Other than the testimony, of appellee, the present record contains very little information about the West German proceedings. Appellee recounted those proceedings as follows:

There was only one hearing that I was represented by counsel and that was on September 16th, I believe, or September 19th, I’m not sure of the date, I can look it up — that I was represented by counsel at that hearing. There was no — on the 29th of December, 1985, there was an emergency hearing in which I did not have any counsel at all in Germany and then when I did get the orders finally, this was several months later, this wasn’t until April, I managed to get them translated. I took them to a local attorney and he advised me that I should get a German Attorney. So working through my attorney here, Harry Byrne in Philadelphia, it was about two months later that we secured Elson Nowell. The German Court scheduled a hearing, preliminary hearing in September at which time he was present. However, it was determined by the Court that it was only a preliminary hearing, fact-finding hearing, based on just a little bit of the record or testimony that had been given so far and it would only last for about fifteen minutes and it was to decide what direction this case should go in. So I managed to get most of the materials to him by that time and he said that — he told me later on when we would have a full hearing on the matter, but that was just a preliminary hearing and then in September [1987] when all of a sudden they handed down a decision and I specifically asked my attorney why wasn’t I present, and he said, well, they do things like this.

N.T. November 16, 1987 at 11. It thus appears that after holding a series of hearings, some without notice to appellee, id., the West German Court awarded sole custody of Henry John to appellant on September 8 or 9, 1987. Id. at 13. Appellee has appealed the West German custody decree. See id. at 9; Exhibit 4.

I.

Appellant first contends that the custody order that had been entered on October 9, 1985, by the Court of Common Pleas of Philadelphia County later was modified by an order of a West German Court, dated September 9, 1987. According to appellant, the West German order, inter alia, has divested Pennsylvania courts of the authority to hold appellant in contempt. We disagree.

A.

In Pennsylvania, jurisdiction of custody matters is governed by the Uniform Child Custody Jurisdiction Act (UCCJA), codified at 42 Pa.C.S.A. §§ 5341-66. The manifold purposes of the UCCJA, as embodied in section 5342(a)(1)-(8), include avoidance of jurisdictional conflicts; promotion of cooperation between “interested” jurisdictions; assurance of custody litigation in the forum having the greatest nexus with the case; and deterrence of abductions. See id. § 5342; M.D. v. B.D., 336 Pa.Super. 298, 302, 485 A.2d 813, 815 (1984); Commonwealth ex rel. Earl R.D. v. Linda H.S., 297 Pa.Super. 78, 88, 443 A.2d 307, 311 (1982); see also Commonwealth ex. rel. Octaviano v. Dombrowski, 290 Pa.Super. 322, 327-28, 434 A.2d 774, 777 (1981); Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa.Super. 294, 300, 418 A.2d 729, 733, aff'd, 492, Pa. 183, 423 A.2d 333 (1980).

The list contains overlaps, [but] the important features boil down to a conviction that the instability that results from child-snatching and forum-shopping is harmful to children, and that the court system should not condone the unilateral decision of one parent in helping himself or herself by attaining the physical possession of the child and seeking the forum most likely to award permanent custody to that parent.

Warman v. Warman, 294 Pa.Super. 285, 294, 439 A.2d 1203, 1208 (1982) (plurality) (emphasis in original). Any parent who abducts his or her child and goes forum shopping, therefore, has a heavy burden to overcome in proving that the court issuing the original decree was not acting in the child’s best interest. Zaubi, 275 Pa.Super. at 300, 418 A.2d at 732. The text of the statute itself indicates, and our courts have held, that its provisions apply not only interstate, id. §§ 5342, 5347, but also intrastate, id. § 5364, and internationally, id. § 5365. See, e.g., Hattoum v. Hattoum, 295 Pa.Super. 169, 174, 441 A.2d 403, 405 (1982); Warman, 294 Pa.Super. at 292, 439 A.2d at 1207 (1982); Zaubi, 275 Pa.Super. at 299, 418 A.2d at 731. The Act is not a “ ‘reciprocal’ law and is in full operation in each state regardless of its enactment in other states.” Warman, 294 Pa.Super. at 293, 439 A.2d at 1207.

Although we have not previously elucidated the analysis for determining whether to exercise subject matter jurisdiction in a situation involving a potential conflict of jurisdictions, our courts have engaged in a two-pronged balancing test. See, e.g., Scheafnocker v. Scheafnocker, 356 Pa.Super. 118, 514 A.2d 172 (1986); Grun v. Grun, 344 Pa.Super. 432, 496 A.2d 1183 (1985), aff'd per curiam, 511 Pa. 374, 514 A.2d 1372 (1986); M.D. v. B.D., 336 Pa.Super. 298, 485 A.2d 813; Carpenter v. Carpenter, 326 Pa.Super. 570, 474 A.2d 1124 (1984); Earl R.D., 297 Pa.Super. 78, 443 A.2d 307; Octaviano, 290 Pa.Super. 322, 434 A.2d 774; 1 J. McCahey, M.M. Kaufman, C. Kraut & J. Zett, Child Custody & Visitation, Law & Practice § 4.01[4] at 4-26 (1988) (hereinafter “Child Custody ”). Naturally, the first prong requires an ascertainment of the basis for our jurisdiction. See 42 Pa.C.S.A. § 5344. The UCCJA provides the standard for determining whether the necessary predicate for jurisdiction exists. 1 Child Custody § 4.01[4] at 4-26. If jurisdiction is properly laid in Pennsylvania, we then proceed to the second prong, which focuses on the restrictions on the exercise of our authority. This second step is necessitated by the legislative policy of circumscribing jurisdiction in custody cases rather than proliferating it. See Hattoum, 295 Pa.Super. at 175, 441 A.2d at 406; Warman 294 Pa.Super. at 301, 439 A.2d at 1211. With respect to this latter prong, we must determine the basis for the jurisdiction of the competing forum, the priority in time in which the actions were filed, and the applicability of equitable doctrines, such as unclean hands. See 1 Child Custody at 4-26 to -27.

Under the UCCJA, subject matter jurisdiction may be premised on three major grounds, “home state,” significant connections, or parens patriae, as follows:

§ 5344. Jurisdiction
(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth.
(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child;
(3) the child is physically present in this Commonwealth and:
(i) the child has been abandoned; or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
(4)(i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and
(ii) it is in the best interest of the child that the court assume jurisdiction; or
(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.
(b) Physical presence insufficient. — Except under subsection (a)(3) and (4), physical presence in this Commonwealth of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this Commonwealth to make a child custody determination.
(c) Physical presence unnecessary. — Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

42 Pa.C.S.A. § 5344.

Importantly, jurisdiction premised on the ground that the forum is the “home state” of the child, 42 Pa.C.S.A. § 5344(a)(1), predominates over jurisdiction premised on other grounds, such as significant contacts, see id. § 5344(a)(2). See Hattoum v. Hattoum, 295 Pa.Super. at 175, 441 A.2d at 405 (1982) (UCCJA treats home jurisdiction preferably under § 5344(a)(1)). This is especially true where a parent has resorted to self-help before approaching the court, and consequently, refusal of the trial judge to exercise jurisdiction under section 5344(a)(2) would be proper. See Melzer v. Witsberger, 299 Pa.Super. 153, 445 A.2d 499, 503-04 (1982). “For this Court to hold otherwise would allow parties to custody proceedings to defeat jurisdiction by the simple expedient of removing the child to another state.” Octaviano, 290 Pa.Super. at 328, 434 A.2d at 777; see also 42 Pa.C.S.A. § 5344(b). The term “home state” has been statutorily defined as follows:

The state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, or in an institution, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.

42 Pa.C.S.A. § 5343.

With respect to international custody disputes, the Act provides,

The general policies of this subchapter extend to the international area. The provisions of this subchapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.

42 Pa.C.S.A. § 5365. Although section 5344, outlining the jurisdictional bases, applies to the states, it does not apply to other countries according to the drafters of the model Act:

Not all the provisions of the Act lend themselves to direct application in international custody disputes; but the basic principles of avoiding jurisdictional conflict and multiple litigation are as strong if not stronger when children are moved back and forth from one country to another by fueding relatives.
The second sentence [of section 5346] declares that custody decrees rendered in other nations by appropriate authorities (which may be judicial or administrative tribunals) are recognized and enforced in this country. The only prerequisite is that reasonable notice and an opportunity to be heard was given to the persons affected. It is also to be understood that the foreign tribunal had jurisdiction under its own law rather than und,er section 3 [42 Pa.C.S.A. § 5433] of this Act.

4 Child Custody § 32.03[1][b] at 32-65 to -66 (quoting Uniform Child Custody Jurisdiction Act § 1 commentary) (citations omitted) (emphasis added); see also Hovav v. Hovav, 312 Pa.Super. 305, 458 A.2d 972 (1983) (Pennsylvania court properly declined jurisdiction where proceedings ongoing in Israel of which petitioner had notice).

The Act recognizes two situations, one mandatory and one permissive, in which jurisdiction might be declined. In the first, a court must abstain because another forum has jurisdictional priority. Priority arises under the “first in time rule”:

A court of this Commonwealth shall not exercise its jurisdiction under this subchapter if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because this Commonwealth is a more appropriate forum or for other reasons.

42 Pa.C.S.A. § 5347 (emphasis added); see also Scheafnocker v. Scheafnocker, 356 Pa.Super. at 128-30, 514 A.2d at 178. An action is pending from its commencement to its final determination upon appeal, or until the time for appeal has expired. Levinson ex rel. Levinson v. Levinson, 354 Pa.Super. 407, 412-13, 512 A.2d 14, 17 (1986). Because “ ‘the policy against simultaneous custody proceedings is so strong’ ... courts should refrain from exercising jurisdiction to further the purposes of the Act.’ ” Id. Consequently, as long as one forum is exercising jurisdiction, there is no concurrent jurisdiction to modify a decree. Id.; see also 42 Pa.C.S.A. § 5355 (“a court of this Commonwealth shall not modify that decree unless: (1) it appears to the court of this Commonwealth that the court which rendered the decree does not now have jurisdiction under the jurisdictional prerequisites substantially in accordance with this subchapter or has declined to assume jurisdiction to modify the decree; and (2) the court of this Commonwealth has jurisdiction”). Importantly, the first in time rule applies to international custody disputes. See 4 Child Custody § 32.03[1][b] at 32-65 to -66. We finally note that this provision is symmetrical, that is we have both declined, see Grun, 344 Pa.Super. 432, 496 A.2d 1183 (court below erred in failing to stay proceedings after discovering that case was pending in Texas); Carpenter, 326 Pa.Super. 570, 474 A.2d 1124 (court below properly stayed proceedings where case was pending in Massachusetts), and exercised jurisdiction pursuant to it, see Scheafnocker, 356 Pa.Super. at 128-30, 514 A.2d at 176-78 (where Pennsylvania action filed first, court did not have to decline its jurisdiction predicated on significant connection even though Texas technically was the home jurisdiction).

The key distinction between the above-mentioned mandatory declination provision, 42 Pa.C.S.A. § 5347, and section 5348, which is permissive, is that no other forum is exercising jurisdiction. Thus, if two forums have colorable bases for exercising jurisdiction, a court is permitted to decline “its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case” and that another court is a “more appropriate forum.” Id. § 5348; see, e.g., Aldridge v. Aldridge, 326 Pa.Super. 49, 473 A.2d 602 (1984) (case properly transferred to Kentucky where that state had “significant connection” to facts and Pennsylvania had no significant contacts); Earl R.D., 297 Pa.Super. 78, 443 A.2d 307 (court properly abstained where Vermont was “home state”); cf. Hattoum, 295 Pa.Super. at 176-77, 441 A.2d at 406-08 (Pennsylvania court properly exercised jurisdiction where both Pennsylvania and Argentina have colorable reason to exercise jurisdiction). Like section 5347, section 5348 is applicable to custody battles crossing international boundaries. See 4 Child Custody § 32.-03[1][b] at 32-65 to -66.

“Abductions and reabductions of children remains perhaps the most serious problem confronting practitioners and the courts, not to mention the child, the innocent victims of the ongoing struggle between embattled and embittered parents.” 4 Child Custody § 4.08[1] at 4-150. With this concern in mind, our legislature has provided another ground on which a court may abstain: if the petitioner has “wrongfully taken the child from another state or has engaged in conduct intending to benefit his position in a custody hearing.” 42 Pa.C.S.A. § 5349(a). Additionally, we note that this provision clearly reflects one of the oldest doctrines of equity, i.e., “unclean hands.” 4 Child Custody § 4.08[2]. Based on section 5349, we have both declined jurisdiction, see Beese v. Calehuff, 356 Pa.Super. 137, 514 A.2d 182 (1986), allocatur denied, 514 Pa. 641, 523 A.2d 1130 (1987); Friedenberger v. Friedenberger, 335 Pa.Super. 622, 485 A.2d 68 (1984), and exercised it, see M.D. v. B.D., 336 Pa.Super. 298, 485 A.2d 813. According to the UCCJA’s commentators, the foregoing provision also is applicable to international custody disputes. 4 Child Custody § 32.03[1][b] at 32-65 to -66.

Turning to the first prong in our analysis, it is abundantly clear that the Pennsylvania courts had jurisdiction at the inception of the custody proceedings in this case. Because the Goodmans and Henry John had continuously lived in the Commonwealth from the latter’s birth to the time of the commencement of the proceedings, the Commonwealth unequestionably qualified as the “home state” of the child under the UCCJA. See 42 Pa.C.S.A. §§ 5343, 5344. Upon the filing of the action by appellant on May 29, 1981, the Philadelphia Court, therefore, could exercise its subject matter jurisdiction to make a custody determination in this case. See id § 5344(a)(1).

We now turn to the potential limitations on the exercise of our jurisdiction. Because this conflict of jurisdictions involves a court located in a foreign nation, we do not. evaluate whether its assumption of jurisdiction was predicated on one of the grounds enumerated in the Act. See 4 Child Custody § 3203[1][b] at 32-65 to -66. We instead assume that the West German court properly based its jurisdiction on its domestic law. Id. Our recognition of orders emanating from a foreign forum, however, is not unqualified: It is an absolute prerequisite that all of the affected parties had notice of and had an opportunity to be heard in the foreign proceedings. Id. On the present record, it appears that appellee was not accorded these fundamental due process rights, as he testified at the November 16, 1987 contempt hearing in Erie. N.T. November 16, 1987 at 11. On this basis alone, we are not bound to recognize the West German orders. See 42 Pa.C.S.A. § 5365; 4 Child Custody, § 32.03[1][b] at 82-65 to -66; cf. Hovav, 312 Pa.Super. 305, 458 A.2d 972 (Pennsylvania court properly abstained where petitioner had notice of ongoing proceedings in Israel).

Additionally, even before appellant left this country she, having full knowledge of the stateside proceedings, petitioned the German courts for permission to “allow her and her child to go [there].” N.T. November 16, 1987 at 18. Furthermore, appellant flew to West Germany a mere two days after the May 13, 1985 hearing in Philadelphia at which she was present, assured the court that she would attend future hearings, provided the court with a Maryland address, and indicated that she would comply with the then-temporary custody decree. N.T. May 13, 1985 passim; Brief for Appellant at 6. The West German proceedings clearly were instituted while this Commonwealth was actively exercising its jurisdiction. Under our “first in time rule,” 42 Pa.C.S.A. § 5347, the German court should have abstained, 4 Child Custody § 32.03[1][b] at 82-65 to -66, as we would have had the situation been reversed, see Hovav, 312 Pa.Super. 305, 458 A.2d 972. Under this same rule, we may disregard the orders from a forum that should have declined to exercise its jurisdiction. See Scheafnocker, 356 Pa.Super. at 128-80, 514 A.2d at 176-78.

Finally, after reviewing the published cases, we take note that the case sub judice is among the most egregious examples of forum shopping. The record in this ease speaks for itself: appellant was intimately aware of the ongoing proceedings in this Commonwealth, yet she chose to disregard the orders of the courts below and seek refuge in West Germany, hoping to hide behind the robes of the West German judiciary. On previous occasions we have condemned forum shopping in custody matters, and in this case, we reaffirm our condemnation of that odious conduct. See, e.g., M.D. v. B.D., 336 Pa.Super. 298, 485 A.2d 813; Octaviano, 290 Pa.Super. 322, 434 A.2d 774; Zaubi, 275 Pa.Super. 294, 418 A.2d 729. Accordingly, for the foregoing reasons, we conclude that the court below did not err in refusing to acknowledge the orders of the West German court.

B.

Courts possess “ ‘the inherent power to enforce their orders and decrees by imposing sanctions for failure to comply with said orders.’ ” Schnabel Assoc. v. Building & Construction Trades Council, 338 Pa.Super. 376, 385, 487 A.2d 1327, 1332 (1985) (quoting Rouse Philadelphia Inc. v. Ad Hoc '78, 274 Pa.Super. 54, 71, 417 A.2d 1248, 1257 (1979)). This constitutionally derived power, see Hopkinson v. Hopkinson, 323 Pa.Super. 404, 411, 470 A.2d 981, 985 (1984), is the basis for the sanction of contempt. See Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 438, 323 A.2d 766, 772 (1974). In addition to this inherent power, our courts have statutory contempt power for disobedience of custody orders. See Pa.R.Civ.P. 1915.-12. In the context of contempt proceedings for the violation of a custody decree, we have distinguished between enforcement and modification jurisdiction. In Commonwealth ex rel. Taylor v. Taylor, 332 Pa.Super. 67, 480 A.2d 1188 (1984), we determined that the court below could properly hold a party in contempt even though it no longer had jurisdiction to modify the underlying custody decree:

[TJhere is a great difference between modification jurisdiction which involves holding an evidentiary hearing on the best interests of the child in order to determine custody, and enforcement jurisdiction, which is limited to determining whether the prior custody order can be enforced, i.e., whether the decree was valid when entered and never modified.

Id., 332 Pa.Superior Ct. at 72, 480 A.2d at 1190-91. Taylor, most significantly, stands for the proposition that so long as a custody decree has not been modified by an order issued by another forum, in a valid exercise of its jurisdiction, it is enforceable by the original forum. Id.

In this case, we already have determined that under the UCCJA, Pennsylvania is the home state and has continuously exercised its jurisdiction and that the West German orders have no legal effect on the orders below. See id. For the foregoing reasons, we now conclude that the Erie Court could enforce by means of its contempt power, see Pa.R.Civ.P. 1915.12, the custody order of October 9, 1985, which was validly entered and in effect never modified. See id. Taylor, 332 Pa.Super. at 72, 480 A.2d at 1190-91.

II

Appellant’s second contention is that ''[t]he court of Common Pleas of Erie County, Pennsylvania lacked jurisdiction to enforce the order of the Court of Common Pleas of Philadelphia County and to adjudicate the petition for contempt.” Appellant’s argument following her statement of the issue is unclear, but we believe that she is challenging both in personam jurisdiction and venue of the Erie Court. These claims are waived.

Although an objection to subject matter jurisdiction may be raised at any time during a judicial proceeding, “Muestions of personal jurisdiction, venue and notice which relate to the 'method by which a court having the power to adjudicate the matter first obtained superintendence of the cause of action ...must be raised at the first reasonable opportunity or they are waived.” Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa.Super. 95, 99, 380 A.2d 1299, 1301 (1977), (allocatur denied,) (quoting Collier Twp. v. Robinson Twp., 25 Pa.Commw. 227, 230, 360 A.2d 839, 840 (1976)); see also Kessler v. Cardonick, 229 Pa.Super. 97, 323 A.2d 378 (1974) (in personam jurisdiction); Hohlstein v. Hohlstein, 223 Pa.Super. 348, 296 A.2d 886 (1972) (venue). Under the rules promulgated by our Supreme Court for custody actions, Pa.R.Civ.P. 1915.1 to 1915.25, “[a] party must raise any question of jurisdiction of the person or venue by preliminary objection filed within twenty days of the service of the pleading to which objection is made or at the time of the hearing, whichever first occurs.” Pa.R.Civ.P. 1915.5. Although the custody rules contain no provision defining “pleading,” our rules of civil procedure state that “pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto.” Pa.R.Civ.P. 1017.

The present action was initiated by a petition for contempt, which is not a pleading and to which preliminary objections consequently are unnecessary. Pa.R.Civ.P. 1915.12(c), 1017. Hence, the first opportunity for appellant to raise her claim, was at the November 16, 1987 contempt hearing. No objection to personal jurisdiction or venue was raised at that time. See Schwarz, 252 Pa.Super. at 99, 380 A.2d at 1301. Accordingly, we cannot reach the merits of appellant’s claims because they have not been preserved for our review.

III.

Appellant finally contends that the Erie Court abused its discretion by holding her in contempt. Contempts are subsumed under two categories, civil and criminal, the latter one being further subdivided into direct and indirect con-tempts. See Brocker v. Brocker, 429 Pa. 513, 591, 241 A.2d 336, 338 (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969); Bruzzi v. Bruzzi, 332 Pa.Super. 346, 352, 481 A.2d 648, 651 (1984). Civil and criminal contempts are distinguished on the basis of the “dominant purpose of the judicial response to contumacious behavior,” rather than on the basis of the conduct of the contemnor, Fatemi v. Fatemi, 371 Pa.Super. 101, 111, 537 A.2d 840, 845 (1988), largely because the same conduct can give rise to either type of contempt. See Brocker, 429 Pa. at 519, 241 A.2d at 339. In short,

[i]f the dominant purpose [of the court] is to prospectively coerce the eontemnor with an order of the court, the adjudication is civil. If, however, the dominant purpose is to punish the eontemnor for disobedience of the court’s order or some other contemptuous act, the adjudication is criminal.

Commonwealth v. Marcone, 487 Pa. 572, 578, 410 A.2d 759, 762 (1980) (quoting In re Martorano, 464 Pa. 66, 77-78, 346 A.2d 22, 27-28 (1975)). “Descriptively, the feature which distinguishes the two types of contempt is that a civil contempt order, because of its coercive nature, will necessarily have a condition upon which the contemnor may purge himself. This is the proverbial ‘key to the jailhouse door.’ ” Bruzzi, 332 Pa.Super. 353, 481 A.2d at 652.

A party must have violated a court order to be punished for civil contempt. Woods v. Peckich, 463 Pa. 274, 280, 344 A.2d 828, 832 (1975). Because the dominant purpose of civil contempt proceedings is to aid a private litigant “ ‘by coercing the contemnor into compliance with a court order,’ ” Commonwealth ex rel. Ermel v. Ermel, 322 Pa. Super. 400, 403, 469 A.2d 682, 683 (1983) (quoting In re Grand Jury, 251 Pa.Super. 43, 53, 379 A.2d 323, 327 (1977)), the general rule is that the aggrieved party “has the burden of proving non-compliance with ... [that] order by a preponderance of the evidence.” Laughlin v. Laughlin, 372 Pa.Super. 24, 26, 538 A.2d 927, 928 (1988); see also Barrett v. Barrett, 470 Pa. 253, 263, 368 A.2d 616, 621 (1977). Finally, in reviewing an adjudication of contempt, this Court places great reliance on the sound discretion of the trial judge, Laughlin, 372 Pa.Super. at 26-27, 538 A.2d at 928.

It is axiomatic that an appellate court’s scope of review in equity matters is very narrow. The trial court’s findings will not be disturbed absent a clear error of law or abuse of discretion. Each court is the exclusive judge of con-tempts against its process, and on appeal its action will be reversed only when a plain abuse of discretion occurs.

Neshaminy Water Resources Auth. v. Del-Aware Unltd., 332 Pa.Super. 461, 469, 481 A.2d 879, 883 (1984) (citations omitted).

Here, the court below did not indicate whether it was holding appellant in criminal or civil contempt, and plainly, the facts in this case could have given rise to either type. See Fatemi, 371 Pa.Super. at 112, 537 A.2d at 845. Our review of the proceedings, however, reveals that the dominant purpose of the Erie Court’s contempt order was to compel appellant into complying with the custody decree and releasing Henry John to appellee. See Marcone, 487 Pa. at 578, 410 A.2d at 762; Hopkinson, 323 Pa.Super. at 411, 470 A.2d at 985. Hence, we find that appellant was held in civil contempt. After reviewing the parties’ briefs, record, and lower court opinion, we conclude that the court below did not abuse its discretion in determining that appellee sustained his burden of proof. See Laughlin, 372 Pa.Super. at 26, 538 A.2d at 928. Thus, for the reasons stated in the lower court opinion, we affirm the order below holding appellant in civil contempt.

Accordingly, for the foregoing reasons, we affirm the order below.

Order affirmed.

JOHNSON, J., concurs in the result.

      . The record does not disclose the means by which the Philadelphia Court was apprised of the confusion surrounding its October 9, 1985 order.

      . Significantly, appellee testified that as of the date of the hearing more than three years had passed since he last saw his son. N.T. November 16, 1987 at. 13.

      . Section 2904 governs interference with the custody of children, which is a felony of the third degree unless:
      (1) the actor, not being a parent or person in equivalent relation to the child acted with knowledge that his conduct would cause serious alarm for the safety of the child, or in reckless disregard of a likelihood of causing such alarm. In such cases, the offense shall be a felony of the second degree; or
      (2) the actor acted with good cause for a period not in excess of 24 hours; and
      (i) the victim child is the subject of a valid order of custody issued by a court of this Commonwealth;
      (ii) the actor has been given either partial custody or visitation rights under the order; and
      (iii) the actor is a resident of this Commonwealth and does not remove the child from the Commonwealth.
      In such cases, the offense shall be a misdemeanor of the second degree.
      18 Pa.C.S.A. § 2904.

      . We note that appellant included in her reproduced record copies of orders issued by the West German court, and their English translations, which were not introduced below. Because those documents are not properly before us, we cannot consider their merits. See In re Estate of Brockerman, 332 Pa.Super. 88, 94, 480 A.2d 1199, 1202 (1984).

      . Appellant also attacks the validity of previously entered orders on the ground that the courts failed to make specific factual findings and provide detailed reasons for their conclusions. Because appellant failed to timely appeal from those orders, she has waived these claims. See Pa.R.A.P. 903.

      . The UCCJA provides guidance to a court with respect to declining to exercise its jurisdiction:
      (c) Factors to be considered. — In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
      (1) If another state is or recently was the home of the child.
      (2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
      (3) If substantial evidence concerning the present or future care, protection, training, and personal relationships of the child is more readily available in another state.
      (4) If the parties have agreed on another forum which is no less appropriate.
      (5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5242 (relating to purposes and construction of subchapter).

        Id. § 5348(c).

      . During the cross-examination of appellee by appellant’s counsel the following exchange transpired:
      THE COURT: Rosenberg has Contempt Orders and Bench Warrants. She doesn’t want to land in Philadelphia or maybe anywhere in Pennsylvania. Very surely it’s going to be uncomfortable for her to be in Erie, Pennsylvania. She has not attempted whatsoever to address this issue here in the United States. Yet, taking this before the German Jurisdiction, again, I can’t help but think that it’s an effort — when you get an unfavorable answer in one jurisdiction, you go to another jurisdiction and you get then to try and do what you want. She’s got what she wants out of the German Court apparently so she’s not going to try and listen to us whatsoever.
      MR. ORTON (counsel for Appellant): Well, your Honor, I would submit that’s rightly so. She went to the proper jurisdiction. She went to where she is located at, where the child is located. I submit the jurisdictional question is squarely dealt with under our act and it says that the Court can entertain jurisdiction. I grant you—
      THE COURT: But I would not.
      MR. ORTON: Well, I might not either, but that’s not for us to decide. That’s for the Court before whom the proper jurisdiction is placed to decide.
      THE COURT: I think it’s up to me to decide when, in fact, you're asking me to look at a foreign order, the Foreign Court and follow their ruling. If they would do things in their jurisdiction which I would not do and would be appalled at doing, I cannot then accept their order. I think the act provides for that.
      N.T. November 16, 1987 at 17-18.
      At first blush this exchange is ambiguous as to whether subject matter or personal jurisdiction is being debated. Assuming arguendo that counsel is referring to the latter variety, his mere assertion that another forum lias in personum jurisdiction does not by implication mean that our courts lack same. We conclude, therefore, that counsel’s statements do not constitute an adequate objection to the exercise of personal jurisdiction by our courts.

      . In her brief appellant specifically contests the award of counsel fees to appellee. Sanctions for civil contempt can be imposed for one or both of two distinct purposes: (1) to compel or coerce obedience to a court order and (2) to compensate the contemnor’s adversary for injuries resulting from the contemnor’s noncompliance with a court order. See Brocker v. Brocker, 429 Pa. 513, 519-20, 241 A.2d 336, 338-39 (1968). Because an award of counsel fees “is intended to reimburse an innocent litigant for expenses made necessary by the conduct of an opponent,” American Mut. Liability Ins. Co. v. Zion & Klein, P.A., 339 Pa.Super. 475, 480, 489 A.2d 259, 262 (1985), it is “coercive and compensatory, and not punitive.” See Schnabel Assoc., 338 Pa.Super. at 397, 487 A.2d at 1338. Thus, counsel fees are a proper element of a civil contempt order. Id. In reviewing a grant of attorney’s fees, we will not disturb the decision below absent a clear abuse of discretion. See, e.g., Brenckle v. Arblaster, 320 Pa.Super. 87, 94, 466 A.2d 1075, 1078 (1983); Shearer v. Moore, 277 Pa.Super. 70, 78, 419 A.2d 665, 669 (1980). Here, we have reviewed the proceedings below and conclude that the Erie Court did not clearly abuse its discretion in awarding attorneys fees to appellee, and we, therefore, will not disturb its determination.