J-A18031-26 2026 PA Super 218
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PETER ANDREW ZEHR :
:
Appellant : No. 1187 WDA 2025
Appeal from the Order Entered June 24, 2025
In the Court of Common Pleas of Potter County Criminal Division at
No(s): CP-53-CR-0000089-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PETER ANDREW ZEHR :
:
Appellant : No. 1188 WDA 2025
Appeal from the Order Entered June 24, 2025
In the Court of Common Pleas of Potter County Criminal Division at
No(s): CP-53-CR-0000235-2005
BEFORE: PANELLA, P.J.E., KING, J., and LANE, J.
OPINION BY LANE, J.: FILED: September 29, 2026
Peter Andrew Zehr (“Zehr”) appeals from the orders, at two trial
dockets, finding him in civil contempt for failure to pay restitution, and
imposing a sentence of six months’ imprisonment with a purge condition of
paying $3,000. While we do not disturb the finding of civil contempt, we
reverse the imposition of the sentence, where the trial court set the amount
of the purge condition without first making a determination, beyond a J-A18031-26
reasonable doubt, that Zehr had the ability at that time to pay. We thus affirm
in part and reverse in part.
The trial court summarized docket CP-53-CR-0000235-2005 as follows:
[In 2005, Zehr] was operating a vehicle under the influence of
alcohol and was involved in a crash[. H]is vehicle struck a utility
pole causing serious injury to his passenger. [Zehr] was
sentenced on March 8, 2006, [for] driving under the influence [to]
one to six months[’ imprisonment. Subsequently, in May 2006,
Zehr] was ordered to pay restitution in the form of his passenger’s
medical expenses in the amount of $209,813.31. [In 2025] (19
years after sentencing) the approximate amount of restitution
unpaid is $196,358.69.
Trial Court Opinion, 10/17/25, at 1 (unnecessary capitalization omitted).
The trial court summarized the following for trial docket CP-53-CR0000089-2011:
[T]he Commonwealth alleged that [in June 2006, Zehr] and an
accomplice set fire to a residence and shed[. Zehr] pled guilty to
. . . criminal mischief[. He] was sentenced on December 19, 2012,
to 11½ to 23½ months of incarceration and ordered to pay
restitution of $186,746.00 to the owners of the structures; as well
as the insurance company that insured the property. [In 2025]
(13 years after sentencing) restitution in the matter remains
unpaid in the approximate amount of $161,511.24.
Id. (unnecessary capitalization omitted).
Zehr has been the subject of at least six contempt proceedings for
failure to make timely payments toward restitution. See id. at 2-3 (citing
indirect civil contempt findings in August 2015, March 2017, July 2021, July
and August 2024, and additional contempt proceedings in July 2019 and June
2020).
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Most recently, on August 21, 2024, the trial court found Zehr in
contempt and ordered him: to pay $1,000 within thirty days or be incarcerated
for thirty days; to make timely payments of $200 per month; “and to provide
six applications for employment to the Probation Department.” Id. at 2-3. In
October 2024, Zehr “returned for a review hearing[,] having failed to complete
his six applications for employment and the Court granted [Zehr] an additional
30 days to complete the applications or to be incarcerated for 30 days with
furloughs to look for employment.” Trial Court Opinion, 10/17/25, at 3.
In April 2025, the Commonwealth filed the underlying motion for
contempt, averring that Zehr had made no payments toward restitution since
October 2024. The trial court conducted a hearing on June 18, 2025, at which
Zehr, then forty years old, appeared pro se. Zehr agreed that he had not
made restitution payments, but averred the following.
[H]e was self-employed[,] obtaining most of his work from a local
auto repair shop as he had been for the entirety of his contempt
hearings. [T]here had been a flood in August of 2024 that [“wiped
out” the auto repair shop and brought his work “to a halt very
quickly.” Zehr did] construction work for his father [in exchange
for “room and board.” Zehr] also claim[ed] that he work[ed] for
a local farmer [five to twenty hours per week.]
[Zehr] live[d] with his girlfriend with whom he has a child
and her two children. He has made numerous excuses over the
years concerning his girlfriend’s inability to care for the children
and the reason why he could not be gainfully employed[,] and now
aver[red] that she [was diagnosed with a brain tumor three
months earlier and was unable “to do a whole lot around the
house.”] . . .
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Trial Court Opinion at 3; see also N.T., 6/18/25, at 5-6, 8, 16. When asked
by the trial court about applying to a particular company that was hiring, Zehr
replied that he did not have a driver’s license.1
The Commonwealth argued that, thirteen years after his convictions,
Zehr now appeared for a “sixth contempt proceeding for failure to pay
restitution,” and “in the three years” between 2022 and 2024, he “missed 20
of 36 payments” and “repeatedly . . . delay[ed] any payment until a court
proceeding [was] imminent.” N.T., 6/18/25, at 11-12. The Commonwealth
also explained that the victims at his criminal mischief docket have “asked the
court for help in obtaining more timely restitution.” Id. at 12 (unnecessary
capitalization omitted). The Commonwealth asserted that Zehr has
“bamboozle[ed]” both the trial court and the victims, and requested a
sentence of five to seven months’ imprisonment “to get [Zehr’s] attention”
and demonstrate that “he needs to take the responsibility . . . and they’re not
going to go away.” Id. at 13.
The trial court found Zehr in civil contempt and imposed a sentence of
six months’ imprisonment, with a purge condition that Zehr may avoid the
sentence if he paid $3,000. The court stated that it found “beyond a
reasonable doubt that he has [the] ability to purge himself contempt.” N.T.,
1 The trial court noted that previously, in July 2024, it ordered Zehr “to make
a good faith attempt to obtain his driver’s license.” Trial Court Opinion, 10/17/25, at 2.
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6/18/25, at 15-16. Zehr averred, “Your Honor, I have no way to purge
myself.” Id. at 16. The trial court responded, “If you had got a job, you
would have, right? You made no payments since October” 2024. Id. The
trial court entered an order memorializing this ruling on June 24, 2025.
Subsequently, the trial court granted Zehr’s motion for work release, and
Zehr’s subsequent filings averred that he was working at a restaurant. Zehr
did not pay the purge amount and he served the entire six months’ term of
imprisonment.
Zehr filed timely pro se notices of appeal at each trial docket.2 He and
the trial court have complied with Pa.R.A.P. 1925. This Court sua sponte
consolidated Zehr’s appeals at the two trial dockets. Following a per curiam
order by this Court for the trial court to determine whether Zehr was eligible
for court-appointed counsel or whether he wished to proceed pro se, Zehr’s
present counsel entered her appearance in this Court.
Zehr presents the following issue for our review:
. . . Did the trial court err by imposing an unlawful civil contempt
purge condition of $3,000 absent record evidence necessary to
make a substantiated finding, beyond a reasonable doubt,
that . . . Zehr had the present ability to pay that amount of money
at the time he was held in contempt and incarcerated?
2 Zehr filed identical pro se notices of appeal at each trial docket, which listed
both docket numbers. See Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (holding “that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed”); see also Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020) (en banc) (holding that an appellant may file, at each trial docket, separate notices of appeal which list multiple docket numbers).
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Zehr’s Brief at 3.
Zehr avers that the trial court erred by imposing a purge condition, of
paying $3,000, without determining whether he had the present ability to pay
that amount. We consider the applicable standard of review:
This [C]ourt’s review of a civil contempt order is limited to a
determination of whether the trial court abused its discretion. If
a trial court, in reaching its conclusion, overrides or misapplies the
law or exercises judgment which is manifestly unreasonable, or
reaches a conclusion that is the result of partiality, prejudice, bias
or ill will as shown by the evidence of record, then discretion is
abused.
Thompson v. Thompson, 187 A.3d 259, 263 (Pa. Super. 2018) (citation
omitted).
This Court has addressed the distinct principles of civil contempt and
criminal contempt:
Civil contempt has as its dominant purpose to enforce compliance
with an order of court for the benefit of the party in whose favor
the order runs, while criminal contempt has as its dominant
purpose, the vindication of the dignity and authority of the court
and the protection of the interest of the general public. This
distinction . . . is important because the type of contempt being
punished will determine the manner in which the contempt is to
be adjudicated as well as the punishment which may be imposed.
It must be noted that the characteristic that distinguishes civil
from criminal contempt is the ability of the contemnor to
purge himself of civil contempt by complying with the
court’s directive.
Orfield v. Weindel, PA Super 135, 52 A.3d 275, 281 (Pa. Super. 2012)
(emphasis added and citation omitted).
A trial court’s exercise of its civil contempt power
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“to enforce compliance is exercised with the objective of
compelling performance and not inflicting punishment.” In
accordance with this principle, . . . a court may not convert a
coercive sentence into a punitive one by imposing conditions that
the contemnor cannot perform and thereby purge himself of the
contempt. . . .
[I]n determining whether [a party] was properly imprisoned for
civil contempt, the crucial question is not whether he willfully and
contemptuously violated the original orders, but whether he had
the present ability to comply with the conditions set by the court
for purging himself of his contempt.
Barrett v. Barrett, 368 A.2d 616, 620 (Pa. 1977) (paragraph break added
and citations omitted).
Pennsylvania courts have long applied these principles:
Before a defendant may be committed for civil
contempt, it is essential that it be clear what is
required of him in order to purge himself of the
contempt, and the commitment order should state the
condition which when complied with will release him.
In the absence thereof, a commitment for civil
contempt is improper.
Indeed, it is axiomatic that a litigant adjudged to be in civil
contempt “holds the keys to the jailhouse door.”
Fetzer v. Fetzer, 336 A.3d 1058, 1066 (Pa. Super. 2025) (citations omitted).
In Hyle v. Hyle, 868 A.2d 601 (Pa. Super. 2005), the trial court found
the defendant in civil contempt for failure to pay spousal and child support.
See id. at 603. Indeed, the defendant had “refuse[d] to find employment
and, in an obvious effort to avoid payment of the support, ha[d] spent the last
few years in prison as he has been repeatedly found in contempt of court for
his failure to meet his support obligation.” Id. The trial court imposed a
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sentence of six months’ imprisonment and set a $2,500 purge. See id. at
604. The trial court reasoned that if the defendant had work release and
found employment, he could pay the purge amount. See id. The court
subsequently entered an order “making [him] eligible to participate in the . . .
prison’s work release program.” Id. at 604.
The defendant appealed to this Court, arguing “that the trial court erred
by setting a condition for a purge that he cannot presently meet.” Id. This
Court agreed, first noting the record evidence that the defendant’s “only
assets were $21[] in his prison account and a [seventeen year-old] motor
vehicle.” Id. at 605. This Court then found improper the trial court’s
reasoning that the defendant could comply if he obtained employment while
on work release: “[The defendant’s] ability to comply with the purge . . . will
only occur sometime in the future; [he] must first secure employment and
then earn $ 2,500.00 to pay the purge amount.” Id.
We note that in March 2026, while the instant appeal was pending, a
plurality of the Pennsylvania Supreme Court issued an opinion announcing the
judgment of the court (“OAJC”) in Bredbenner v. Hall, 353 A.3d 683 (Pa.
2026) (OAJC). The three-Justice OAJC, as well as a three-Justice concurring
opinion and a one-Justice concurring opinion, all agreed to the continued
application of the law above — that before a trial court may impose a purge
condition, it must first determine, beyond a reasonable doubt, the contemnor’s
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present ability to pay the purge amount. See id. at 691 (OAJC), 697
(concurring opinion by Todd, C.J.), 704 (concurring opinion by Brobson, J.).3
On appeal, Zehr does not challenge the finding of civil contempt. He
avers that the trial court erred by imposing a civil contempt purge condition
of $3,000 without the necessary finding on the record, beyond a reasonable
doubt, that he had the present ability to pay that amount. Zehr asserts the
Pennsylvania Supreme Court upheld this underlying principle in Bredbenner,
the Justices’ disagreement as to the burden of proof in a child support matter
notwithstanding. Zehr maintains there was no record evidence of his “existing
accounts, funds, assets, or other resources.” Zehr’s Brief at 8. Instead, Zehr
contends, the trial court improperly relied on its assessment of his earning
capacity, and “erroneously considered, without any real analysis, [his] ability
to earn money to pay the purge condition through work release [at a
restaurant] while incarcerated.” Id. at 12, 15. Zehr asserts this Court has
reversed a purge condition based on the trial court’s assessment of a
“defendant’s ‘ability to comply with the purge . . . sometime in the future’
3 We note that a plurality opinion generally does not carry precedential value
because it did “not command the joinder of a majority of the justices participating in the case.” Commonwealth v. Brown, 23 A.3d 544, 556 (Pa. Super. 2011) (en banc). However, “in cases where a concurring opinion enumerates the portions of the plurality's opinion in which the author joins or disagrees, those portions of agreement gain precedential value.” Id. In Bredbenner, the point of disagreement between OAJC and two concurring opinions was the evidentiary burdens on the parties in a child support matter. This issue is not before this panel in the present appeal.
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after the defendant secured employment and earned the required funds.” Id.
at 12. Zehr concludes that “by failing to establish [his] present ability to afford
the purge condition, the trial court effectively imposed a criminal contempt
sanction.” Id.
In its opinion, the trial court reviewed the record evidence and set forth
its reasoning for finding Zehr in civil contempt. See Trial Court Opinion,
10/17/25, at 3-6 (finding, inter alia: Zehr was “a healthy 40-year-old male
who is fully capable of being employed but has chosen to be sporadically selfemployed;” Zehr’s “argument that he cannot be held in contempt because he
doesn’t earn much is due to his own making as employment is available for
him, should he avail himself of” it; and “despite numerous hearings and
warnings from the [c]ourt, [Zehr] refused to make payments of $200[] per
month since October . . . 2024”).
With respect to determining the amount of the purge condition, the trial
court framed the issue and addressed it as follows:
Next [Zehr] claims that he was not provided with an ability
to pay hearing; however, that is not true as [Zehr] has had
numerous hearings to justify why he cannot pay his obligation.
He was only required to pay $200[]per month but refused to
consistently honor that meager obligation. The Court finds that
[Zehr] is healthy with no physical restrictions which would prohibit
him from working for an employer who could pay him a living
wage. At the hearing on June 18, 2025, [Zehr] acknowledged that
a factory within five miles of his residence was hiring. Since
[Zehr] insists on being self-employed and having inconsistent
income instead of being fully employed, he has created his own
circumstances which have affected his ability to consistently pay
the restitution claim.
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Id. at 4 (emphasis in original). Elsewhere in its opinion, it reasoned: Zehr
“has been granted work release and is employed at a local restaurant so that
he can purge himself of contempt.” Id. at 5.
After careful review of the record, including the transcript of the
contempt hearing, we determine the trial court erred in imposing a sentence
of imprisonment with a purge condition of paying $3,000, where there was no
record evidence of Zehr’s present ability to pay that amount. While the trial
court considered the evidence of Zehr’s inability or refusal to make timely
restitution payments supported a finding of civil contempt, that same evidence
did not establish , beyond a reasonable doubt, that he had the present ability,
at the time of the contempt hearing, to pay $3,000 to avoid imprisonment.
See id. at 4 (reasoning there was a proper “ability to pay hearing” where Zehr
“had numerous [prior] hearings to justify why he cannot pay his” restitution
obligation of $200 per month).
Similarly, the trial court improperly considered that Zehr was on work
release — from the imprisonment imposed for the civil contempt and working
at a restaurant. This work release and employment arose after the finding of
civil contempt and therefore was not determinative of, again, Zehr’s ability at
the time of the contempt hearing to pay the purge amount. See Hyle,
868 A.2d at 604-05 (holding that a contemnor’s “ability to comply with the
purge” may not “only occur sometime in the future,” and instead, the party
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“must first secure employment and then earn [the money] to pay the purge
amount”).
For the foregoing reasons, we affirm the trial court’s finding of civil
contempt against Zehr. However, we reverse the portion of the order
imposing six months’ imprisonment with a purge condition of paying $3,000.
As it is not disputed that Zehr has served the entire six months’ sentence, we
decline to remand for the trial court to impose any amended purge condition.
See Upper Augusta Twp. v. BMMA, LLC, 347 A.3d 840, 849 (Pa. Cmwlth.
2025) (holding that the trial court erred in imposing a term of imprisonment,
for a finding of civil contempt, without including a purge condition and thus
reversing portion of the trial court’s order imposing the sentence);4 but see
Hyle, 868 A.2d at 606 (vacating purge condition of $2,500 payment and
remanding “for the trial court to determine what conditions will be sufficiently
coercive yet enable [the defendant] to comply with the order,” and noting the
trial court was “also free to choose to adjudicate [the defendant] for indirect
criminal contempt, provided that [he would be] afforded all of the procedural
rights and safeguards afforded to criminal defendants”).
Order affirmed in part and reversed in part. Jurisdiction relinquished.
4 “Although decisions of the Commonwealth Court are not binding on this Court, they may provide persuasive authority.” Barrett v. M&B Med. Billing, 291 A.3d 371, 376 n.4 (Pa. Super. 2022).
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