Borough of Beaver v. Steckman

728 A.2d 418, 1999 Pa. Commw. LEXIS 258
CourtCommonwealth Court of Pennsylvania
DecidedApril 13, 1999
StatusPublished
Cited by4 cases

This text of 728 A.2d 418 (Borough of Beaver v. Steckman) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borough of Beaver v. Steckman, 728 A.2d 418, 1999 Pa. Commw. LEXIS 258 (Pa. Ct. App. 1999).

Opinion

SMITH, Judge.

Patrick J. and Casey L. Steckman (the Steckmans) appeal from an order of the Court of Common Pleas of Beaver County of May 8, 1998 that found them in contempt of the trial court’s order of April 10, 1995, enjoining them from selling grave markers and monuments at their property in the Borough of Beaver (Borough), and required them to pay $9,592.50 to the Borough for attorney’s fees. The Steckmans question whether the trial court erred or abused its discretion in finding them to be in contempt of the April 1995 order when there was no evidence that they acted in willful disobedience or disregard of that order and whether the trial court erred or abused its discretion in imposing attorney’s fees sanctions against them.

The Steckmans were interested in purchasing property at 1198 Third Street in the Borough for the purpose of conducting a [419]*419retail grave marker business. The property is located in the C-3 Commercial Professional District, in which use as a “retail business” as defined in the zoning ordinance is not permitted, although use for a “business office” is permitted. They submitted an application for a zoning permit, and the Borough issued a permit in February 1993. The Steckmans then purchased the property and began making renovations and repairs. In' April 1993, the Borough zoning officer issued a notice of revocation of the permit, stating that it had been issued in error. The Steck-mans did not appeal the notice or take any other legal action, but they continued to occupy the premises. Grave markers are manufactured at the Steckmans’ other facility in Ellwood City.

On May 7, 1993, the Borough issued a zoning enforcement notice, and on May 10 it filed a complaint in equity seeking injunctive relief. The trial court ultimately concluded that the Steckmans’ failure to appeal the revocation notice to the zoning hearing board rendered the revocation final and not subject to collateral attack. On April 10, 1995 it issued an order stating: “Defendants are hereby enjoined from conducting the business of selling monuments and markers on the property located at 1198 Third Street, Beaver, Pennsylvania.” The Steckmans appealed from that order, and this Court affirmed, holding that the failure to appeal from a zoning revocation under applicable provisions of the Pennsylvania Municipalities Planning Code, Act of July 31,1968, P.L. 805, as amended, 53 P.S. §§ 10101 — 11202, bars any claim of a vested right to a permit. Steckman v. Borough of Beaver (Pa.Cmwlth., No. 1169 C.D.1995, filed December 21, 1995).

At the hearing before the trial court on the petition for contempt, the Steckmans’ counsel in the original litigation, William Buchko, Esq., testified that he invited the Borough’s Solicitor, John J. Petrush, Esq., and its Zoning Officer, David L. Hagen, to a meeting with the Steckmans at the subject property on January 3, 1996, to discuss what business they could conduct there in compliance with the zoning ordinance and the court orders. Patrick and Casey Steckman and Buchko testified that at the meeting the Steckmans described to Hagen and Petrush the entire process of a transaction to acquire a grave marker. All three recalled that Petrush and Hagen regarded activities other than receiving payment as not constituting “sales” of grave markers. The Steckmans’ Exhibits A and B were the cover sheet and the attachment that Buchko sent to Petrush on February 8,1996, which was described as proposed language for a zoning application.1

Petrush testified that he recalled going over the provisions of the zoning ordinance at the meeting and stating that he thought it permitted use for administrative aspects of the business, such as accounting, billing and payroll but that the Steckman’s could not sell, solicit or take orders for grave markers from that location. He recalled receiving a facsimile transmission from Buchko, which he stated he passed on to Hagen as the zoning officer. Neither Buchko nor the Steckmans received any response to that message. Hagen did not testify. The trial court determined that the Steckmans’ actions were in violation of the April 1995 order and directed the Steckmans to pay the Borough $9,592.50, which was described as the amount of attorney’s fees that the Borough incurred in the original litigation and in connection with the contempt petition proceeding.2

[420]*420The Steckmans first argue that the trial court erred in holding them in contempt, when in their view the evidence shows that they acted in good faith and in reliance upon the representations of the Borough’s agents concerning permitted activities. They note that in a civil contempt proceeding the complaining party must prove non-compliance with a court order by a preponderance of the evidence. C.R. by Dunn v. Travelers, 426 Pa.Super. 92, 626 A.2d 688 (1993). The Steckmans contend that the testimony of the Borough’s witness Catherine Reese, a customer, was consistent with their understanding of what was permitted. Reese testified that she went to the Third Street location in Beaver and selected a marker for her mother’s grave; that Casey Steckman provided her with a contract, which she filled out at the Beaver office; and that she informed Casey Steckman that Petrush, who was handling her mother’s estate, would send a check. Further, Petrush testified that Buch-ko opened the January 1996 meeting by stating that his clients wished to comply with the ordinance, and although he agreed that the meeting was lengthy, he stated that he did not recall the Steckmans’ reviewing the entire process of a transaction with the officials.

The Steckmans acknowledge that a violation of an order may be inadvertent or in good faith and still give rise to a holding of civil contempt, citing Thompson v. Johnson, 410 F.Supp. 633 (E.D.Pa.1976), aff'd, 556 F.2d 568 (3d Cir.1977). They note also, however, that any ambiguity or omission in an order claimed to have been violated must be construed in favor of the defendant. C.R. by Dunn. Here, although the trial court’s original order precluded them “from conducting the business of selling monuments and markers” on the subject premises, the ordinance clearly permitted conducting some aspects of such a business. The Steckmans assert that the Borough failed to prove that they willfully violated the original order.

The Borough responds that it presented evidence of a customer who selected a monument at the Beaver office and signed a contract there, the Steckmans’ Yellow Pages advertisement, a group of 95 contracts that were made at the Beaver office, newspaper advertisements and the testimony of Petrush concerning the January 1996 meeting. The trial court’s ruling, the Borough argues, implicitly found a lack of good faith in the Steckmans’ continuing business as before with the only difference that the initial payment was not accepted on the premises. The Borough cites Messmore’s Estate, 293 Pa. 63, 141 A. 724 (1928), and authority from other jurisdictions to emphasize that civil contempt does not depend upon the intent of the party but rather upon the act that has been committed.

The Court notes that the Supreme Court considered a very similar case in Township of South Strabane v. Piecknick, 546 Pa. 551, 686 A.2d 1297 (1996).

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Bluebook (online)
728 A.2d 418, 1999 Pa. Commw. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borough-of-beaver-v-steckman-pacommwct-1999.