Opinion
No. 2075 C.D. 2010
06-15-2011
North Coventry Township v. Josephine M. Tripodi, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Josephine M. Tripodi (Appellant) appeals from the September 22, 2010 order of the Court of Common Pleas of Chester County (trial court), granting North Coventry Township's (Township) petition to hold Appellant in contempt of court due to her non-compliance with the Township's property, maintenance, plumbing, and electrical codes for her property known as Kline Place Apartments (Property). For the reasons stated below, we affirm.
Initially, North Coventry Township filed a complaint against Appellant as owner of the Property for Appellant's non-compliance of the Township's property, maintenance, plumbing, and electrical codes. (Reproduced Record (R.R.) 25a.) The Township sought a preliminary injunction to preclude Appellant's use of the Property due to Appellant's continued violations. (Id. at 26a.) After a hearing on the Township's preliminary injunction request, the trial court issued an order on April 25, 2008, requiring Appellant's compliance with an in-court agreement reached between Appellant and the Township. (Id. at 181a.) The in-court agreement established that the Property would be cooperatively inspected and that a work schedule would be created for correction of the violations. (Id.)
On October 8, 2008, the Township filed its first petition for contempt against Appellant for her failure to comply with the trial court's April 25, 2008 order. (Id. at 45a.) The Township filed its second contempt petition against Appellant on January 16, 2009. (Id. at 57a.) At the trial court's February 6, 2009 hearing on the Township's two contempt petitions, the parties reached an agreement that Appellant was to sell the Property to her daughter, Gerry Carr-Tripodi. (Id. at 190a-205a). The agreement also provided that a master would be appointed to arrange for inspections and access to the Property, approve a contractor to perform work on the Property, and resolve any disputes with respect to the scope of the work. (Id.) The trial court entered an order on February 26, 2009, attaching the parties' agreement. (Id. at 187a.)
On March 6, 2009, the Township filed its third petition to hold Appellant in contempt for failing to comply with the trial court's previous orders. (Id. at 67a.) As a result of Appellant's repeated non-compliance with the trial court's orders, the trial court entered an order on June 12, 2009, finding that Appellant had willfully breached the trial court's February 26, 2009 order. (Id. at 211-12a.) The trial court ordered Appellant to pay $10,000.00 to the master for fees, costs, and other expenses charged by third-party consultants that the master retained. (Id.) The trial court further ordered Appellant to pay $10,000.00 to the master to be placed in an escrow account for the use of the master for fees, costs, and expenses of engaging consultants to establish and prepare the plan of repair and remediation of the Property. (Id. at 213a.)
The Township filed its fourth contempt petition against Appellant on June 26, 2009, for Appellant's failure to cooperate with the trial court's June 12, 2009 order. (Id. at 106a.) The trial court held a hearing on August 14, 2009, and issued an order on August 26, 2009, finding Appellant in contempt of the trial court's April 25, 2009, February 26, 2009, and June 12, 2009 orders. (Id. at 226a.) Further, the trial court found that Appellant's property constituted a public nuisance and was unsafe for human habitation. (Id. at 234a.) The trial court concluded that its previous orders regarding the Property could only be enforced by the sale of the Property in a reasonable commercial manner, conditioned upon the buyer remediating the Property and bringing the Property into compliance with the Township's codes or by demolishing the structures. (Id.) Finally, the trial court ordered Appellant to pay $12,411.96 for attorney fees and costs incurred by the Township. (Id. at 237a.) The trial court also ordered Appellant to pay $34,170.00 to the Township for the master's fees, costs, and expenses. (Id.)
On September 14, 2009, Appellant filed two timely motions for reconsideration of the trial court's August 26, 2009 entry of monetary judgments against Appellant. (Id. at 116a-17a.) On March 9, 2010, Appellant filed another motion for reconsideration and a praecipe for determination of the trial court's August 26, 2009 order. (Id. at 122a.) On March 25, 2010, the Township filed a motion to quash Appellant's motion for reconsideration. (Id. at 126a.)
The trial court held a hearing and, on May 20, 2010, issued an order, sustaining the Township's motion to quash and dismissing Appellant's motion for reconsideration. (Id. at 262a.) The trial court determined that while Appellant's September 14, 2009 motions for reconsideration were timely filed, Appellant did not provide the trial court with the required notice pursuant to the Chester County Rules of Civil Procedure. (Id. at 267a.) The trial court concluded that it did not receive notice of Appellant's motions for reconsideration until Appellant filed her untimely praecipe for determination on March 9, 2009, six (6) months after the August 26, 2009 order was entered. (Id.) The trial court concluded that it did not have jurisdiction to reconsider the August 26, 2009 order because Appellant did not appeal the order within thirty (30) days of its entry. (Id.) Finally, the trial court concluded that Appellant could not rely upon her reconsideration motion to toll the appeal period. (Id.) On June 17, 2010, Appellant appealed the trial court's May 20, 2010 order to this Court. (Id. at 495b.)
Rule 206.6 of the Chester County Rules of Civil procedure provides, in pertinent part:
To have any matter submitted to the Court for a decision, a party shall file with the Prothonotary a Praecipe for Determination. Immediately after filing same with the Prothonotary, each party shall serve upon all other counsel and unrepresented parties a copy of the Praecipe for Determination as well as any other documents filed therewith.
On appeal, the matter was docketed as North Coventry Township v. Josephine M. Tripodi, 1214 C.D. 2010. By opinion and order dated March 24, 2011, this Court concluded that because Appellant did not appeal the trial court's order and the trial court failed to act on her motions for reconsideration within thirty (30) days of entry of the trial court's order, the trial court was without jurisdiction to consider those motions or Appellant's subsequent motion that she filed more than thirty (30) days past the entry of the trial court's order. For those reasons, we affirmed the order of the trial court.
The Township filed its fifth contempt petition with the trial court on June 9, 2010, for Appellant's failure to cooperate with the Township and for her refusal to comply with the trial court's order. (Id. at 146a.) In that petition, the Township averred that Appellant refused to cooperate with the court-appointed master. (Id.) On September 13, 2010, the trial court held a hearing on the Township's fifth contempt petition. (Id. at 710b.) At the hearing, Lawrence Sager, Esq., testified for the Township that the Township was to be notified before any repairs were made to the Property to make sure they were done in the appropriate manner and in accordance with the trial court's remediation plan. (Id. at 721b.) Kevin Hennessey, Township Manager, testified that the court-appointed master did not receive from Appellant the $34,170.00 for the master's fees, costs, and expenses, (id. at 741b-46b), and that the Township had not collected any of the $12,411.00 for legal services as ordered by the trial court's judgment against Appellant. (Id. at 746b.) Mr. Hennessey testified that the Township did not receive any notice from Appellant regarding repairs that addressed any of the Property's plumbing, electric, structural, or health issues. (Id. at 748b-49b.)
Appellant testified that she "did not believe that she owed money to anybody." (Id. at 767b.) Appellant testified that she gave a list of the Property's code violations to the Longacre Company, a Township-approved contractor, to make the corrections. (Id. at 771b-72b.) Appellant testified that she did not notify the Township before she had an electrician or plumber perform repairs to the Property. (Id. at 785b-86b.) On September 22, 2010, the trial court issued an order finding Appellant in contempt of the trial court's orders for her deliberate and willful refusal to obey the court's prior lawful orders from which she took no appeals. (Id. at 324a.) The trial court concluded that Appellant could purge her contempt and avoid incarceration by remitting to the Township the sum of $46,581.96 (Id. at 325a.) Appellant now appeals to this Court.
On appeal, Appellant raises the following issues: (1) whether the Township's contempt petition before the trial court was not ripe due to the possible effect of this Court's decision on Appellant's pending appeal; (2) whether the trial court improperly gave weight to the testimony of a witness for the Township regarding the condition of the Property because he lacked personal knowledge of the Property's current condition; (3) whether the trial court erred in failing to consider Appellant's evidence regarding repairs to the Property when it found Appellant was in contempt of court for not bringing the Property into compliance with relevant Township codes and ordinances; and (4) whether the trial court erred in assessing $46,581.96 in fines against Appellant based upon the projected costs to repair the Property without a basis to determine those repairs.
Our scope of review when considering an appeal from a contempt order is limited to a review of whether the trial court abused its discretion or committed an error of law. Jackson v. Hendrick, 764 A.2d 1139, 1142 n.4 (Pa. Cmwlth. 2000), appeal denied, 566 Pa. 671, 782 A.2d 550 (2001). When considering an appeal from a contempt order, great reliance must be placed upon the discretion of the trial judge. Id.
Appellant first argues that the trial court erred in rendering a decision on the Township's fifth contempt petition before this Court entered a decision on Appellant's first appeal because the result of our decision could have a direct impact on the trial court's analysis of the Township's contempt petition. Appellant contends that to properly evaluate the ripeness of an issue, the analysis must determine whether the claim involves uncertain and contingent events that may not occur as anticipated or at all. Alaica v. Ridge, 784 A.2d 837, 843 (Pa. Cmwlth. 2001).
The trial court reasoned that because no appeals were filed from its previous orders, the trial court was not precluded from finding Appellant in contempt of those orders because they were not the subject of the first appeal to this Court. Rather, the central issue to be decided on Appellant's first appeal was the effect of Appellant's motion for reconsideration on the trial court's August 26, 2009 opinion. Further, the trial court concluded that Appellant did not seek an order from this Court staying action pending appeal pursuant to Pa. R.A.P. 1701(c), nor did the trial court's grant of the Township's contempt petition modify or reverse an order from which an appeal had been taken. Pa. R.A.P. 1701(a).
Pa. R.A.P. 1701(c) provides, in pertinent part:
Limited to matters in dispute. Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, or in a petition for review proceeding relating to a quasijudicial order, the appeal or petition for review proceeding shall operate to prevent the trial court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the trial court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant.
Pa. R.A.P. 1701(a) provides, in pertinent part:
Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.
Ripeness has been defined as the presence of an actual controversy. American Council of Life Ins. v. Foster, 580 A.2d 448, 451 (Pa. Cmwlth. 1990). It requires the court to evaluate the fitness of the issue for judicial determination, as well as the hardship to the parties of withholding court consideration. Id. "The ripeness doctrine is a concept of standing premised on the notion that the judicial machinery should be conserved for problems that are real and present or imminent, not squandered on problems which are abstract or hypothetical or remote." Van Doren v. Mazurkiewicz, 695 A.2d 967, 971 (Pa. Cmwlth. 1997).
Appellant's argument that the issue regarding her contempt petition was not ripe is unpersuasive because the issue initially before us regarding the trial court's May 20, 2010 order has been settled. That first appeal, which dismissed Appellant's motion for reconsideration by concluding that the trial court no longer had jurisdiction to reconsider its August 26, 2009 order, did not address the same controversy as is presently before us, which is Appellant's continued refusal to comply with the previous trial court's orders. Therefore, the trial court did not err in rendering a decision on Township's fifth contempt petition because there was an actual controversy before the trial court, and the trial court's grant of the Township's contempt petition was not impacted by our decision of Appellant's previous appeal regarding Appellant's reconsideration motions.
Second, Appellant argues the trial court abused its discretion by giving weight to the testimony provided by a Township witness regarding the condition of the Property, despite the witness having no personal knowledge of the Property's current condition. Specifically, Appellant argues that Mr. Hennessey's testimony during the September 13, 2010 hearing regarding the condition of the Property was unreliable because Mr. Hennessey had not visited the Property since the early spring of 2010. Further, Appellant contends that the Property is currently in good condition and compliant with all Township codes and ordinances.
In general, questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a finding of abuse of discretion. Burkholz v. Dep't. of Transp., 667 A.2d 513, 517 (Pa. Cmwlth. 1995). "Every person is competent to be a witness except as otherwise provided by statute or in [the Pennsylvania Rules of Evidence.]" Pa. R.E. 601(a). "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Pa. R.E. 602. Pursuant to Rule 701 of the Pennsylvania Rules of Evidence, Pa. R.E. 701:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness, helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."Rule 702 of the Pennsylvania Rules of Evidence, Pa. R.E. 702, provides, in turn:
If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."Much of the literature assumes that experts testify only in the form of an opinion. The language, 'or otherwise' reflects the fact that experts frequently are called upon to educate the trier of fact about the scientific or technical principles relevant to the case." Pa. R.E. 702, comment; see also Carpenter v. Pleasant, 759 A.2d 411, 415 (Pa. Cmwlth. 2000), appeal denied, 566 Pa. 668, 782 A.2d 549 (2001).
Here, Mr. Hennessey testified that as part of his job as the Township's manager, he oversaw code enforcement and the office of the treasurer, specifically, regarding money coming into the Township. (R.R. at 741b-42b.) Mr. Hennessey testified that he was personally aware of the master's involvement with the Property and that he had been present in court when the trial court ordered Appellant to pay for both the master's services and for the Township's legal fees. (Id. at 745b-46b.) Mr. Hennessey testified that, in an attempt to collect the monies and avoid contempt proceedings, the Township initially attempted to attach monies from Appellant's rental properties that she owned in Berks County, but the Township was unable to collect any monies through this method. (Id. at 747b.) Mr. Hennessey also testified that the Township did not receive any notices from Appellant with respect to plumbing, electric, or structural repairs done to the Property. (Id. at 748b.) Finally, Mr. Hennessey testified to an incident regarding his inspection of the Property after it was reported to the Township that the Property's pipes had frozen. (Id. at 750a.) He testified that when he went onto the Property to inspect the situation, the repairs were completed without any Township inspections of the work being conducted and new drywall was placed over broken pipes and wet electrical work. (Id. at 751b.) He further testified that Appellant refused to cooperate and notify the Township of repairs. (Id. at 752b.)
Upon review of the record, it is clear that Mr. Hennessey testified that Appellant did not pay the monies ordered by the trial court to either the master for his fees or to the Township for its legal fees. Further, the record establishes that Mr. Hennessey was present during all of the court proceedings and his position as Township manager was such that he was aware of any notices coming into the Township regarding code enforcement. Additionally, Mr. Hennessey would have had personal knowledge of any monies coming into the Treasurer's office as a result of Appellant's payments towards her court-imposed financial obligations. Therefore, based upon these facts, the trial court did not abuse its discretion by giving weight to the testimony provided because it was not necessary for Mr. Hennessey to have direct personal knowledge of the current condition of the Property to testify to Appellant's non-compliance with the trial court's orders.
Third, Appellant argues the trial court abused its discretion and committed an error of law when it failed to consider the evidence of Appellant's repairs to the Property. Appellant contends that a wealth of evidence was presented to the trial court that showed extensive work was done to the Property in order to bring it into compliance with the Township's codes and ordinances, and the trial court improperly ignored this clear evidence.
Here, the record reveals that the parties established an agreement outlining the duties of the master regarding specific repairs to be made to the Property in order to make it compliant with the pertinent Township codes. (R.R. at 777b.) The agreement also detailed the specific procedures necessary to keep the Township informed of the repair process. (Id.) Appellant testified that she was aware that a master had been appointed by the trial court. (Id.) Appellant testified that she submitted evidence the day of the hearing in the form of documents containing a series of statements from the Longacre Company that performed all carpentry, electrical, plumbing, and other work required on the Property and a statement from the structural engineer providing that the three buildings were structurally sound. (Id. at 769b.) Appellant testified that she did not give the Township or the master a schedule or plan to bring the Property into compliance. (Id. at 787b.) The trial court's hearing on September 13, 2010, was held in response to the Township's fifth contempt petition against Appellant. The issue before the trial court was whether Appellant complied with the four previous orders requiring action on Appellant's part. The trial court was, therefore, not required to consider the evidence of repair because it was not relevant in the trial court's determination of whether Appellant did not comply with prior court orders. Moreover, it is clear that Appellant failed to comply with the trial court's previous orders requiring all work done on the Property to be approved by the master and requiring Appellant to notify the Township before any work was begun.
Finally, Appellant argues the trial court abused its discretion and committed an error of law by failing to consider the repairs done by Appellant in assessing the $46,581.96 in fines. Appellant contends that the damages were based upon projected costs to repair the Property, and because the trial court failed to consider whether any repairs were performed, it had no basis upon which to determine the projected costs for the repairs.
The courts of this Commonwealth possess an inherent power to inflict summary punishment for contempt as a result of disobedience or neglect of the lawful orders or process of the court. Cecil Twp. v. Klements, 821 A.2d 670, 675 (Pa. Cmwlth. 2003). Also, the trial court has the "inherent power to inflict summary punishment for contempt" in imposing the purge provision and the sanction of attorney's fees and costs. Id.
Here, the trial court found Appellant in indirect criminal contempt due to her deliberate and willful refusal to obey the trial court's prior lawful order. (R.R. at 324a.) The trial court concluded that based upon the contempt hearing conducted on September 13, 2010, Appellant was financially able to pay the amounts originally assessed by the trial court's August 26, 2009 order. That order originally assessed a total of $46,581.96 against Appellant—$12,411.96 for attorney's fees and costs incurred by the Township and an additional $34,170.00 for the master's fees, costs, and expenses incurred to that date. (Id. at 237a.) Based upon our review of the record, in contrast to Appellant's argument that her fines were improperly determined and should not reflect projected repairs to the Property, the trial court did not fine Appellant but, rather, enforced a previously determined monetary amount owed by Appellant to ensure her compliance with the trial court's prior orders. Therefore, the trial court properly used its inherent power to hold Appellant in contempt for not complying with its previous orders, and, further, the trial court properly assessed and imposed monetary obligations to vindicate the authority of the court.
The Township contends Appellant does not preserve or raise the issue as to whether the trial court's finding of contempt is criminal or civil. Upon review of the record, we find no challenge regarding whether the contempt petition was civil or criminal in nature, and, moreover, do not conclude that it directly relates to the issue before us regarding whether the trial court erred as a matter of law or abused its discretion in concluding Appellant was in contempt of the trial court's orders.
Accordingly, we affirm the trial court.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 15th day of June, 2011, the order of the Court of Common Pleas of Chester County, dated September 22, 2010, is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge