D. Bielby v. ZBA City of Phila. v. C. Willard

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Darin Bielby :
:
v. :
:
Zoning Board of Adjustment of the :
City of Philadelphia :
:
v. :
:
Carla Willard, Connie Winters, :
Michael Ramos, Susan Wright, : No. 1441 C.D. 2019
Appellants : Argued: March 15, 2021
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: April 9, 2021
Carla Willard (Willard), Connie Winters (Winters), Michael Ramos
and Susan Wright (collectively, Appellants) appeal from the Philadelphia County
Common Pleas Court’s (trial court) August 14, 2019 order granting Darin Bielby’s
(Bielby) Motion to Enforce the Trial Court’s October 1, 2018 Order and Impose
Sanctions (Motion). The sole issue before this Court is whether the trial court
properly levied monetary sanctions in the form of costs and fees on Appellants.1
1
Appellants presented 15 issues for this Court’s review: (1) whether the trial court
improperly imposed sanctions against Appellants; (2) whether the trial court had the authority to
impose sanctions; (3) whether the trial court identified the legal basis under which the sanctions
were imposed; (4) whether the trial court failed to identify whether it was imposing sanctions
against Appellants for civil contempt, in violation of Section 2503(7) of the Judicial Code, 42
Pa.C.S. § 2503(7); (5) whether the trial court improperly determined that Appellants were liable
for civil contempt because there was insufficient evidence to establish: Appellants violated the
Background
On May 30, 2017, Bielby applied to the City of Philadelphia’s (City)
Department of Licenses and Inspections (L&I) for a zoning use registration permit
to renovate 224-230 West Tulpehocken Street (Property). Bielby sought to convert
a former nursing home located on the Property into a mixed-use building with 14
residential units, add a commercial space, erect a second story along Pastorius Street,
and add 21 accessory parking spaces (Application). On June 20, 2017, L&I denied
the Application because, inter alia, the proposed multi-family use was not permitted
in the Property’s residential, single-family, detached zoning district; the proposed
accessory parking was not permitted in the required front set-back from Pastorius
October 1, 2018 order; definite, clear and specific instructions in an order by the trial court not
followed by Appellants; and Appellants acted with wrongful intent; (6) whether the trial court
improperly determined that Appellants violated Section 2503(7) of the Judicial Code because the
evidence was insufficient to establish Appellants acted in a manner which was dilatory, obdurate
and vexatious; (7) whether Section 2503 of the Judicial Code applied, as Appellants’ intervention
was struck by the October 1, 2018 order, and conduct following the litigation cannot form the basis
for sanctions under Section 2503 of the Judicial Code; (8) whether, at the time of the August 14,
2019 hearing, the trial court had the power to sanction Appellants when they were not parties to
the litigation at that time; (9) whether the trial court erred in determining that Appellants’ conduct
was improper, as there was nothing inappropriate about the communications Appellants and their
counsel had with the City of Philadelphia Streets Department (Streets Department); (10) whether
the trial court improperly awarded Bielby and his counsel attorneys’ fees and costs without an
evidentiary hearing concerning the reasonableness of fees and costs or whether the fees and costs
were related to the complained of conduct; (11) whether the trial court improperly failed to identify
the basis for its award to Bielby of fees in the amount of $15,528.51; and costs in the amount of
$1,500.00; (12) whether the trial court violated Appellants’ due process rights when it denied them
the opportunity to offer witness testimony regarding the allegedly improper communications with
the Streets Department; (13) whether the trial court violated Appellants’ due process rights when
it denied Appellants the opportunity to examine Bielby regarding the amounts demanded as
sanctions; (14) whether the trial court improperly determined that sanctions in the form of
attorneys’ fees and costs should be imposed against Appellants when it did not find Appellants
engaged in dilatory, vexatious or obdurate conduct; and (15) whether the evidence established
harm to Bielby or his counsel caused by Appellants’ purported conduct. See Appellants’ Br. at 3-
6. These issues are subsumed in this Court’s rephrasing of the issue and will be discussed therein.
2
Street; and mandatory landscaping and buffers were not included for the accessory
parking.
Bielby appealed to the City’s Zoning Board of Adjustment (ZBA) on
July 14, 2017. The ZBA held a hearing on October 4, 2017, and approved the
variances subject to a proviso restricting parking and additional curb cuts on
Pastorius Street. Thereafter, Bielby and Appellants filed various motions concerning
the proviso upon which the ZBA ruled. Subsequently, the parties appealed to the
trial court and, thereafter, to this Court.2 Relevant to the current matter, on October
1, 2018, the trial court affirmed the ZBA’s October 4, 2017 decision granting the
variances, but reversed the proviso.
Facts
From October 2018 through January 2019, Appellants and their counsel
(Counsel) engaged in ex parte email communications with the City’s Streets
Department (Streets Department) and the Deputy Commissioner of Transportation
(Deputy Commissioner) in an effort to have the Streets Department and L&I deny
Bielby’s development plans without revision or the proviso, thereby preventing
Bielby from obtaining permits necessary to make the curb cuts. Bielby was not
included in any of the email communications. On October 10, 2018, Willard emailed
the Streets Department,3 stating, in relevant part: “We’d of course prefer to honor
the ZBA and not have curb use at all, but we know that issue is out of your hands.
At the very least, we’d like to have some time before anything happens.”
2
On October 10, 2019, this Court vacated the trial court’s October 1, 2018 order and
remanded the case to the trial court for further proceedings. See Bielby v. Zoning Bd. of Adjustment
of City of Phila. (Pa. Cmwlth. Nos. 1177, 1419, 1420 C.D. 2018, filed October 10, 2019).
3
Willard copied the Deputy Commissioner on this email.
3
Reproduced Record (R.R.) at 277a.4 Willard also asked that the Streets Department
notify her of any changes to Bielby’s curb cut permit. See id. On October 16, 2018,
Counsel emailed the Deputy Commissioner requesting to speak with him so that he
could better understand “the status of the permits issued so far and the need for any
future permits or [the] Streets Department[’s] approvals for the curb cuts.” R.R. at
281a. On October 18, 2018, Counsel emailed the Streets Department,5 writing: “Hi
Pat: Wondering if you have an update for me on the status of the revocation of the
two curb cut approvals.” R.R. at 279a. The Streets Department rescinded Bielby’s
curb cut approval on October 23, 2018. On December 29, 2018, Willard emailed
Winters, among other recipients, declaring: “From what I understand from them, the
Streets Department will ultimately be forced to abide by [the trial court’s] ruling if
we do not have a ‘Stay’ from [the] Commonwealth [Court] in place[.]” R.R. at 289a.
Bielby submitted a Right-to-Know Law6 Request to the City’s Law
Department and became aware of Appellants’ ex parte communications with the
Streets Department and the Deputy Commissioner. On June 12, 2019, Bielby filed
the Motion. On August 14, 2019, the trial court held a hearing, and granted Bielby’s
request for sanctions. The trial court directed Appellants to pay all costs and fees
associated with the Motion in the amount of $1,500.00 and a $15,528.51 sanction
for the additional costs Bielby incurred to third-party professionals as a result of
Appellants’ conduct.7
4
Appellants did not number the pages in the reproduced record using a lower case “a” after
the numerals, as required by Pennsylvania Rule of Appellate Procedure 2173. This Court will cite
to the reproduced record in the proper format.
5
Counsel copied the Deputy Commissioner on this email.
6
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
7
The additional fees and expenses to third-party professionals consisted of: $6,996.51 to
Moto Designshop LLC for additional architectural services; $4,950.00 to Poulson & Associations
for additional engineering services; $1,082.00 to Ambric Survey for additional land survey
services; and in excess of $2,500.00 to Obermayer Redmann Maxwell & Hippel LLP for advice
4
On September 8, 2019, Appellants appealed from the trial court’s
August 14, 2019 order to this Court.8 On September 10, 2019, the trial court ordered
Appellants to file a Statement of Errors Complained of on Appeal pursuant to
Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) (Rule 1925(b) Statement).
On September 13, 2019, Appellants filed a Motion for Reconsideration, which the
trial court denied on September 17, 2019. On September 25, 2019, Appellants filed
their Rule 1925(b) Statement. On January 16, 2020, the trial court filed its Rule
1925(a) opinion.9, 10
Discussion
Appellants argue that, although the matter was on appeal at the time of
the alleged conduct concerning the ex parte communications, Appellants were no
longer parties to the action before the trial court and, therefore, the trial court did not
have jurisdiction over Appellants at the time of the sanctions hearing. Further,
Appellants assert that, in granting sanctions against Appellants, the trial court did
not articulate the legal basis for sanctions or identify conduct by Appellants or
Counsel that warranted sanctions. Bielby rejoins that the sanctions were within the
trial court’s discretion, because Appellants were trying to circumvent the trial court’s
order. The trial court opined that it had authority pursuant to Section 2503 of the
and consultation services related to the recission of the previously approved zoning plan and
preparation of the Motion. See R.R. at 337a-338a.
8
“Our review is to determine whether the factual findings of the trial court are supported
by competent evidence and whether the trial court committed an error of law or abused its
discretion.” Renfroe v. Dep’t of Transp., Bureau of Driver Licensing, 179 A.3d 644, 648 n.3 (Pa.
Cmwlth. 2018).
9
The trial court record was transmitted to this Court on June 24, 2020.
10
On October 27, 2020, Tulpehocken Mansion, LLC, filed a Praecipe to Substitute
Appellee Property Owner from Bielby to Tulpehocken Mansion, LLC. This Court will treat the
Praecipe as an Application to Substitute.
5
Judicial Code, 42 Pa.C.S. § 2503, and Rule 1701(b)(2) to impose the sanctions on
Appellants. See Trial Ct. Op. at 4.
Initially,
[w]e [] distinguish between an award of counsel fees under
[Section 2503 of the Judicial Code] and a finding of
contempt, [under Rule 1701(b)(2),] which may include an
award of counsel fees as a sanction. See Mrozek v. James,
780 A.2d 670, 674 (Pa. Super. 2001) (stating, ‘[t]he award
of attorney[’]s fees is an appropriate remedy in a civil
contempt case, separate and apart from the statutory
provision for attorney’s fees under [Section 2503(7) of the
Judicial Code].’) (emphasis supplied); accord Diamond v.
Diamond, 792 A.2d 597, 601 (Pa. Super. 2002); see
generally 42 Pa.C.S.[] § 2503(7) (allowing a party
‘counsel fees as a sanction against another participant for
dilatory, obdurate or vexatious conduct during the
pendency of a matter[]’). Classically, in considering a
motion to award counsel fees under [S]ection 2503 [of the
Judicial Code], an evidentiary hearing is generally
required.
With respect to civil contempt, ‘[i]t is axiomatic that
courts have always possessed the inherent power to
enforce their orders and decrees by imposing sanctions for
failure to comply with said orders.’ Rouse Phila[.] Inc. v.
Ad Hoc ‘78, . . . 417 A.2d 1248, 1257 ([Pa. Super.] 1979)
(citations omitted).
The objective of a civil contempt proceeding is
remedial and judicial sanctions are employed to
coerce the defendant into compliance with the
court’s order, and in some instances to compensate
the complainant for loss sustained. In civil
contempt cases, the complaining party has the
burden of proving non-compliance with the court
order by a preponderance of the evidence. To be
punished for civil contempt, a party must have
violated a court order. The order that forms the
basis for the contempt process in civil proceedings
must be definitely and strictly construed. Any
ambiguity or omission in the order forming the
basis for the civil contempt proceeding must be
6
construed in favor of the defendant. Where the
order is contradictory or the specific terms of the
order have not been violated, there is no contempt.
C.R. by Dunn v. Travelers, . . . 626 A.2d 588, 592 ([Pa.
Super.] 1993) (citations omitted)[.]
....
The court, after finding civil contempt, may impose
sanctions.
Attorney[’s] fees and other disbursements
necessitated by the contemnor’s non[-]compliance
may be recovered by the aggrieved party in a civil
contempt case. Because an award of counsel fees
is intended to reimburse an innocent litigant for
expenses made necessary by the conduct of an
opponent, it is coercive and compensatory, and
not punitive. Counsel fees are a proper element
of a civil contempt order. In reviewing a grant of
attorney’s fees, we will not disturb the decision
below absent a clear abuse of discretion.
Mrozek, 780 A.2d at 674 (citations omitted). . . .
Wood v. Geisenheimer-Shaulis, 827 A.2d 1204, 1207-08 (Pa. Super. 2003)
(emphasis added; citations omitted). Here, the trial court imposed upon Appellants
“costs and fees associated with the [] [M]otion for sanctions in the amount of
$1,500[.00,]” and “[a] monetary sanction in the amount of $15,528.51 . . . for their
deliberate efforts to circumvent and violate [the trial c]ourt’s October 1, 2018
Order.” Trial Ct. August 14, 2019 Order.
Jurisdiction
At the outset, as a
[p]rerequisite to any consideration of the merits of this
appeal, [this Court] must determine whether the order of
[sanctions] is appealable. Although the parties have not
raised appealability, ‘it is nevertheless appropriate for us
7
in this instance to raise that issue [because it] goes to the
jurisdiction of th[is] Court.’ Fried v. Fried, . . . 501 A.2d
211, 212 ([Pa.] 1985). Moreover, since we lack
jurisdiction over an unappealable order it is incumbent on
us to determine, sua sponte when necessary, whether the
appeal is taken from an appealable order.
Kulp v. Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000).
The Pennsylvania Superior Court explained:
Subject to exceptions, ‘an appeal may be taken of right
from any final order of an administrative agency or lower
court.’ Pa.R.A.P. 341(a). A final order is an order that
disposes of all claims and of all parties, or is expressly
defined as a final order by statute or the ordering court.
Pa.R.A.P. 341(b); see also Ben v. Schwartz, . . . 729 A.2d
547, 550 ([Pa.] 1999). Although the instant order does not
fit any of these definitions perfectly, we must consider
whether the practical ramification of the order will be to
dispose of the case, making review appropriate.
....
In the past, our courts have considered the appealability of
orders awarding attorneys’ fees and costs in a variety of
procedural circumstances. See, e.g., Brawley Distrib[.]
Co., Inc. v. Heartland [Props.], 712 A.2d 331, 332 (Pa.
Super. 1998) (grant of fees based on frivolous pre-trial
filing is not appealable); Dooley v. Rubin, . . . 618 A.2d
1014, 1018 n.6 ([Pa. Super.] 1993) (denial of fees in order
terminating underlying litigation is appealable); Fried,
[501 A.2d] at 215 (grant of interim fees in divorce action
is interlocutory and unappealable). However, this case
requires us to determine for the first time whether an
order to pay attorneys’ fees and costs is appealable
when the appellant does not also challenge the merits
of the underlying order.
In Brawley, [] we determined that an order granting
counsel fees based on a frivolous pre-trial filing was not
appealable because it ‘neither terminated the action nor
disposed of all parties and all claims.’ [Id.] at 332. The
instant case presents a much different situation. While
[the a]ppellants do not challenge the portion of the order
compelling performance of the settlement agreement, they
8
do challenge the trial court’s sua sponte finding that their
conduct was ‘vexatious, obdurate or dilatory’ and thus
warranted awarding attorneys’ fees under [Section
2503(7) of the Judicial Code]. Unlike the appellants in
Brawley, the instant appellants will have no subsequent
chance to appeal the portion of the order directing
them to pay attorneys’ fees and costs. It would defy
common sense and undermine judicial efficiency to
require [the a]ppellants to also appeal the portion of
the order compelling their compliance with the
settlement agreement. Since the instant appeal
presents the only chance for [the a]ppellants to
challenge the attorneys’ fees award, we conclude that
the order is appealable. . . .
Kulp, 765 A.2d at 798-99 (emphasis added).
Similarly, here, because an appeal from the trial court’s October 1, 2018
order had already been filed when the sanctions order was issued, the instant appeal
was the only chance for Appellants to challenge the trial court’s sanctions order.
Accordingly, this Court concludes that the order is appealable.
Section 2503 of the Judicial Code
Section 2503 of the Judicial Code provides, in relevant part:
The following participants shall be entitled to a reasonable
counsel fee as part of the taxable costs of the matter:
....
(7) Any participant who is awarded counsel fees as a
sanction against another participant for dilatory, obdurate
or vexatious conduct during the pendency of a matter.
42 Pa.C.S. § 2503 (emphasis added).
This Court has explained:
Under Section 5505 of the Judicial Code, [42 Pa.C.S. §
5503,] a trial court lacks authority to award additional
relief sought more than 30 days after its final order in a
case. Strohl v. S[.] Annville [Twp.] (Pa. Cmwlth. Nos.
9
2162 C.D. 2009 & 2324 C.D. 2009, filed April 13, 2011),
slip op. at 11-12 . . . ; In re Estate of Bechtel, 92 A.3d 833,
843 (Pa. Super. 2014); Freidenbloom v. Weyant, 814 A.2d
1253, 1255 (Pa. Super. 2003), overruled in part on other
issue by Miller Elec[.] Co. v. DeWeese, . . . 907 A.2d 1051([Pa.] 2006). ‘A trial court’s jurisdiction generally extends
for [30] days after the entry of a final order. . . . After the
30[-]day time period, the trial court is divested of
jurisdiction.’ Freidenbloom, 814 A.2d at 1255.
Accordingly, where a request for counsel fees under
[Section 2503 of the Judicial Code] is filed more than 30
days after final judgment, the trial court has no jurisdiction
to act on that request, and its award of counsel fees must
be vacated for lack of jurisdiction. Strohl, slip op. at 11-
14 . . . (vacating award of counsel fees for lack of
jurisdiction where motions for sanctions were filed 38
days or more after trial court orders dismissing complaint
with prejudice); Freidenbloom, 814 A.2d at 1255-56(vacating award of counsel fees for lack of jurisdiction
where petition for counsel fees was filed 36 days after
discontinuance of action).
Ness v. York Twp. Bd. of Comm’rs, 123 A.3d 1166, 1169 (Pa. Cmwlth. 2015)
(footnote omitted).
Here, the trial court entered its order on October 1, 2018. Bielby did
not file his Motion until June 12, 2019. Moreover, the conduct complained of did
not occur during the pendency of the matter before the trial court as required by
Section 2503(7) of the Judicial Code. Rather, the conduct occurred after the trial
court issued its October 1, 2018 order.11 Accordingly, the trial court had no
jurisdiction to sanction Appellants under Section 2503 of the Judicial Code.
11
The trial court referenced in its opinion Appellants’ alleged misconduct from November
2017 through August 2018; however, that conduct is not before this Court. The Motion
specifically sought sanctions for actions committed to circumvent the trial court’s October 1, 2018
order. See R.R. at 298a-299a (At the August 14, 2019 hearing, Bielby expressly requested
“sanctions due to the deliberate conduct of [Counsel] seeking to circumvent [the trial court’s]
October 1, 2018[] order.”). Accordingly, any conduct prior to October 1, 2018, is irrelevant to the
matter before this Court.
10
Rule 1701(b)(2)
Rule 1701(b) states, in pertinent part:
After an appeal is taken or review of a quasi[-]judicial
order is sought, the trial court or other government unit
may:
....
(2) Enforce any order entered in the matter, unless the
effect of the order has been superseded as prescribed in
this chapter.
Pa.R.A.P. 1701(b) (emphasis added).
[Rule] 1701(b)(2) states that the trial court has the power
to ‘enforce any order entered in the matter, unless the
effect of the order has been superseded as prescribed in
this chapter.’ [Pa.R.A.P. 1701(b)(2).] We have
previously noted in discussing the effect of Rule 1701(b)
that[] ‘trial court[s] possess inherent power to enforce their
orders and decrees by imposing sanctions for failure to
comply with their orders. Rouse Phila[.] Inc. . . . , . . . 417
A.2d [at] 1257 . . . . This power is retained even after an
appeal is filed, absent supersedeas.’[12] Travitsky v.
Travitsky, . . . 534 A.2d 1081, 1084 ([Pa. Super.] 1987)
(citing Pa.R.A.P. 1701(b)(2)).
Tanglwood Lakes Cmty. Ass’n v. Laskowski, 616 A.2d 37, 39 (Pa. Super. 1992).
Here, Bielby was seeking to have the trial court’s order enforced, i.e.,
to have his building permit issued,13 and to have Appellants sanctioned for their
conduct in trying to circumvent the trial court’s order. Essentially, Bielby was
asking the trial court to find Appellants in civil contempt of court. The Pennsylvania
Superior Court has explained:
12
Appellants filed an Application for Supersedeas with the trial court which was denied,
and two Applications for Stay or Supersedeas with this Court, which were also both denied.
13
Bielby contends that, because he needed curb cut approvals (i.e., a curb cut permit) to
have his building permit issued, Appellants’ conduct relating to the curb cut approvals was an
attempt to circumvent the trial court’s order.
11
In proceedings for civil contempt of court, the general rule
is that the burden of proof rests with the complaining party
to demonstrate, by [a] preponderance of the evidence, that
the defendant is in noncompliance with a court order.
However, a mere showing of noncompliance with a court
order, or even misconduct, is never sufficient alone to
prove civil contempt.
To be punished for contempt, a party must not only have
violated a court order, but that order must have been
‘definite, clear, and specific - leaving no doubt or
uncertainty in the mind of the contemnor of the prohibited
conduct.’ Because the order forming the basis for civil
contempt must be strictly construed, any ambiguities or
omissions in the order must be construed in favor of the
defendant.
In such cases, a contradictory order or an order whose
specific terms have not been violated will not serve as the
basis for a finding of contempt. To sustain a finding of
civil contempt, the complainant must prove certain distinct
elements: (1) that the contemnor had notice of the specific
order or decree which he is alleged to have disobeyed; (2)
that the act constituting the contemnor’s violation was
volitional; and (3) that the contemnor acted with wrongful
intent. A person may not be held in contempt of court for
failing to obey an order that is too vague or that cannot be
enforced.
When holding a person in civil contempt, the court must
undertake[:] (1) a rule to show cause; (2) an answer and
hearing; (3) a rule absolute; (4) a hearing on the contempt
citation; and (5) an adjudication of contempt. . . .
In re Contempt of Cullen, 849 A.2d 1207, 1210-11 (Pa. Super. 2004) (footnote
omitted) (quoting Lachat v. Hinchliffe, 769 A.2d 481, 488-89 (Pa. Super. 2001)
(citations omitted) (emphasis in original)). The Cullen Court expounded:
‘Fulfillment of all five factors is not mandated, however.’
Wood . . . , 827 A.2d [at] 1208 . . . . ‘[T]he essential due
process requisites for a finding of civil contempt are
notice and an opportunity to be heard.’ Schnabel
12
Assoc[s]., Inc. v. Bldg. [&] Const[r]. Trades Council, . . .
487 A.2d 1327, 1334 ([Pa. Super.] 1985) . . . .
Cullen, 849 A.2d at 1211 (emphasis added).
On October 1, 2018, the trial court entered an order expressly reversing
the ZBA’s proviso which stated, no parking on Pastorius Street and parking curb cut
only on Tulpehocken Street. Bielby’s Motion specifically sought, inter alia:
1. The . . . Streets Department and [L&I] shall accept
[] Bielby’s zoning plans approved at the [ZBA’s] October
4, 2017 hearing, without revision or proviso (the
“Approved Zoning Plan”);
2. [L&I] shall accept the Approved Zoning Plan for
purposes of issuance of any building permit applications
submitted by [] Bielby;
3. [Appellants] shall pay all costs and fees associated
with the herein [Motion] in the amount of $_________;
4. A monetary sanction in the amount of $_________
....
Bielby’s Motion, Proposed Order (emphasis added).
At the commencement of the August 14, 2019 hearing, Bielby stated:
“We have withdrawn the motion seeking enforcement [of the order, i.e., issuance]
of the permit. However, we are still seeking sanctions due to the deliberate conduct
of [Counsel] seeking to circumvent [the trial court’s] October 1, 2018[] order.” R.R.
at 298a-299a. Bielby presented emails evidencing that Appellants were trying to
have his curb cut approvals revoked or their issuance delayed as long as possible.
Based upon the emails, the trial court concluded that Appellants were in fact trying
to circumvent its order and therefore sanctioned Appellants in the form of fees and
costs.
This Court recognizes that “each court is the exclusive judge of
contempts against its process, and [this Court] will reverse an order of contempt only
13
upon a showing of a plain abuse of discretion.” Cullen, 849 A.2d at 1211 (quoting
Diamond v. Diamond, 792 A.2d at 600). However, even if this Court was to
conclude that Appellants acted with wrongful intent, because Bielby withdrew the
portion of his Motion seeking to enforce the trial court’s order, i.e., his permit was
issued, the trial court had no basis upon which to find contempt and sanction
Appellants.14, 15 In addition, the record evidence reveals that, while Appellants had
notice of the hearing, the trial court precluded Appellants from presenting their
witness and failed to implement the prerequisites before adjudicating Appellants in
contempt.
Specifically, the following interaction occurred between Counsel and
the trial court during the hearing:
[Counsel]: But I have five arguments I want to present on
the record, and I have a witness to present.
THE COURT: I’m not listening to any witness testimony.
I don’t need witness testimony. It’s simply --
[Counsel]: Your Honor, there’s a factual issue here. We
are telling you that no communication from us, from this
law firm or our clients, did anything to circumvent [the
trial court’s] order, and this witness is the one who can tell
you why the Streets Department pulled their [sic] approval
back and why they [sic] then gave it again. It had nothing
to do --
THE COURT: My question to you is this: Did you, in fact,
contact them [sic] via email, send email communications?
Yes or no?
[Counsel]: Yes[,] and not to circumvent your order.
THE COURT: I don’t need a witness for that.
14
Moreover, as Appellants did not have authority to issue either the curb cut approvals or
the building permit, Appellants could not execute and/or violate the trial court’s order.
15
As discussed above, the trial court had no jurisdiction under Section 2503 of the Judicial
Code to sanction Appellants.
14
[Counsel]: That’s not what my witness is for, Your Honor.
My witness is for whether we engaged in any conduct that
is illegal or unethical or --
THE COURT: That’s for the [trial c]ourt to decide. That’s
an issue for the [trial c]ourt.
R.R. at 313a-314a.
Clearly, because the trial court held a hearing and ruled on the Motion
immediately thereafter from the bench, it did not undertake “(1) a rule to show cause;
(2) an answer and hearing; (3) a rule absolute; (4) a hearing on the contempt citation;
and (5) an adjudication of contempt.” Cullen, 849 A.2d at 1211 (quoting Lachat,
769 A.2d at 489). However, even if this Court was to treat the Motion as a petition
for contempt, the essential due process requisites were not met.
This Court has elucidated:
[A]n abbreviated process for finding contempt is permitted
provid[ed] that notice of the violations alleged and an
opportunity for explanation and defense are given, and
where the merits of the underlying matter have already
been heard and decided after a full hearing and which have
been served on the contemnor.
Cleary v. Dep’t of Transp., 919 A.2d 368, 372 (Pa. Cmwlth. 2007). “‘The essential
due process requisites for a finding of civil contempt are notice and an opportunity
to be heard,’ In re: Contempt of Court, 849 A.2d 1207, 1211 (Pa. Super. 2004),
which [Appellants were not] afforded in this case.” Cleary, 919 A.2d at 372.
This Court understands Bielby’s and the trial court’s frustration with
Appellants’ ex parte communications with the Streets Department and the Deputy
Commissioner in what appears to have been an attempt to block the issuance of
Bielby’s building permit. However, because the trial court’s order did not
specifically direct Appellants or any other entity to issue the permit, and the permit
15
was issued, and because Appellants were not given their requisite due process, the
trial court did not have authority under Rule 1701(b)(2) to sanction Appellants.16
For all of the above reasons, the trial court’s order is vacated.
_________________________________
ANNE E. COVEY, Judge
President Judge Brobson and Judges Cohn Jubelirer and Fizzano Cannon did not
participate in the decision in this matter.
16
Notwithstanding, this Court is most disturbed by and does not condone Appellants’
actions.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Darin Bielby :
:
v. :
:
Zoning Board of Adjustment of the :
City of Philadelphia :
:
v. :
:
Carla Willard, Connie Winters, :
Michael Ramos, Susan Wright, : No. 1441 C.D. 2019
Appellants :
ORDER
AND NOW, this 9th day of April, 2021, the Philadelphia County
Common Pleas Court’s August 14, 2019 order is VACATED. Tulpehocken
Mansion, LLC’s unopposed Application to Substitute Appellee Property Owner
from Darin Bielby to Tulpehocken Mansion, LLC is GRANTED.
_________________________________
ANNE E. COVEY, Judge