Figlo, D. v. Hawley, D.

J. S31039/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
DORIS J. FIGLO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID A. HAWLEY T/D/B/A :
MUNCY RESTORATION WORKS, : No. 1823 MDA 2019
:
Appellant :
Appeal from the Order Entered October 18, 2019,
in the Court of Common Pleas of Lycoming County
Civil Division at No. CV-2014-0001033-CV
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 24, 2020
David A. Hawley, t/d/b/a Muncy Restoration Works (“Hawley”), appeals
from the October 18, 2019 order,1 entered in the Court of Common Pleas of
Lycoming County, finding him in contempt and ordering him to pay appellee,
Doris J. Figlo (“Figlo”), $20,000 in damages and $4,138.75 in legal fees. After
careful review, we affirm.
On April 16, 2014, Figlo filed a civil complaint against Hawley related to
Hawley’s failure to complete the restoration of Figlo’s 1953 Buick Skylark
convertible. The parties negotiated a settlement which was filed with the trial
court and approved by the court’s order of December 15, 2014. Pursuant to
the stipulation and order, Hawley was to complete the restoration of Figlo’s
1 This date reflects the date the order was docketed.
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vehicle on or before December 10, 2015. (See stipulation, 12/15/19 at ¶ 3.)
The vehicle was to be restored in a manner which would render it
“road worthy” and capable of being used in parade functions. (Id. at ¶ 4.)
Road worthy was defined by the parties as “being able to pass Pennsylvania
inspection standards.” (Id.) An extension of time would be permitted if
Hawley proved that a necessary part to complete the restoration had been
ordered but was unavailable within a reasonable time. (Id. at ¶ 7.) Figlo took
possession of the vehicle in December of 2017, upon Hawley’s failure to
complete the work.
On February 1, 2019, Figlo filed a petition requesting the trial court to
find Hawley in contempt of the agreed upon stipulation and court order. A
bench trial was held on August 22, 2019. The trial court’s October 18, 2019
order summarized the facts and the court’s findings as follows:
The [s]tipulation filed on December 11, 2014,
provides that “[Hawley] will continue and complete
the restoration and assembly of the 1953 Skylark
Buick of [Figlo] pursuant to the terms and provisions
of this [s]tipulation on or before December 10, 2015.”
The [s]tipulation then goes on to provide that “the
time to complete the restoration of the vehicle may be
extended only if [Hawley] can demonstrate that he
has ordered a necessary part in a timely fashion and
that said part is not available within a reasonable time
period.” . . . The 1953 Skylark Convertible Buick
(hereinafter referred to as the “Buick”) was not
completed within the deadline imposed by the
[s]tipulation, and there has been no showing by []
Hawley as to any part being ordered within a timely
fashion.
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As to the quality that was required when the Buick
was delivered, the [s]tipulation stated that the Buick
must be able to pass Pennsylvania inspection
standards, be road worthy, and capable of being used
in parade functions. Per the numerous exhibits
provided by [Figlo], as well as the testimony of one of
[Figlo]’s expert witnesses, Ed Stroble, there are still
significant areas requiring attention before the Buick
could be deemed road worthy.
Testimony offered by Mr. Stroble indicated that it
would take an additional $20,000.00 to make the car
road worthy and pass inspection pursuant to the
terms of the [s]tipulation . . . . Throughout his
testimony Mr. Stroble, having possessed a
Pennsylvania inspection license for 46 years, made
clear what was required for a car to pass a
Pennsylvania inspection and addressed the litany of
areas where the Buick was deficient. . . . The
restoration of the Buick’s interior was not completed,
the four power windows did not work, the brakes were
not functional, the convertible top was not finished,
there was a gap at the windshield and an additional
party [sic] was missing, the vehicle was leaking fluids,
the filler plate at the rear bumper was not installed
despite [Hawley]’s assurances that it would be
installed for $200.00. One of the white wall tires
which [Figlo] had already paid for was scuffed and
needed to be replaced, and the windshield wipers did
not work. [] Figlo[’s son] testified that when the car
was picked up on December 20, 2017, the brakes
were not fully functioning, nor were the windows or
windscreen [sic] wipers. Mr. Stroble testified that any
car with these defects could not possibly be expected
to pass a Pennsylvania inspection, and was adamant
that the inspection sticker already placed on the Buick
was not a reflection of its road worthiness. . . .
....
[] Hawley possessed a valid Pennsylvania inspection
license but took the Buick to Old Times Garage in
Clarkstown, Pennsylvania. An approval sticker was
applied despite the aforementioned deficiencies. In
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order to make the Buick road worthy and to meet
Pennsylvania inspection standards [] Figlo enlisted the
services of Stroble & Twigg Auto Restoration, who
restored, replaced, and installed numerous
components in September, October, and November of
2018 . . . .
[Figlo]’s second expert witness was
Theodore Thomas, who has over 40 years of
experience in repairing transmissions, and receives
annual training on the matter. At [] Hawley’s request,
Mr. Thomas was to make repairs to the Buick’s
transmission in July, 2017. Mr. Thomas’ testimony
made it clear that the transmission was compromised
beyond repair because it was filled with sand;
Mr. Thomas was of the opinion that the sand was of
the same type typically used when sand-blasting a
vehicle. [] Hawley testified that he did not sand-blast
the Buick, but Mr. Thomas stated that the marks on
certain vehicle parts clearly indicated that the Buick
had been sand-blasted.2 [] Hawley admitted that the
sand must have accumulated while the transmission
had been removed from the Buick. The issues with
the Buick’s transmission incurred great expense and
caused further delays in the requisite restoration
work.
. . . . Hawley has yet to complete the restoration of
the Buick[.]
Trial court order, 10/18/19 at unnumbered 1-3. The trial court found that
Hawley was in contempt of the stipulation and December 15, 2014 order of
court.
Hawley filed a timely appeal. On November 10, 2019, the trial court
ordered Hawley to file a concise statement of errors complained of on appeal.
2 We note that Hawley testified he did sandblast the firewall and front frame
section of the Buick, but that the engine and transmission had been removed
prior to the sandblasting. (Notes of testimony, 8/22/19 at 75.)
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Hawley timely complied. On December 23, 2019, the trial court entered an
order, pursuant to Pa.R.A.P. 1925(a), stating that it was relying on the
reasoning set forth in its prior October 18, 2019 opinion3 and order.
The sole issue Hawley raises on appeal is as follows:
Did the trial court error [sic] as a matter of law in
placing an improper burden of proof and persuasion
upon [Hawley], and as such, improperly hold that
[Hawley] did not meet the burdens required by law[?]
Hawley’s brief at 7.
Initially, we note that Hawley has failed to attach to his brief his
Rule 1925(b) statement of errors complained of on appeal. This omission
violates Pa.R.A.P. 2111(a)(11) and (d). Further, the summary of argument
section of Hawley’s brief is blank, violating Pa.R.A.P. 2111(a)(6). (See
appellant’s brief at 12.) However, we conclude that the deficiencies in
Hawley’s brief do not impede our review. See Hayward v. Hayward, 868
A.2d 554, 557 n.2 (Pa.Super. 2005) (holding that, “because [the appellant’s]
violations of our rules of appellate procedure are not substantial and do not
prevent us from reviewing the merits of the issues raised, we will address [the
merits of appellant’s] claims . . .”). We thus decline to dismiss this appeal.
Our standard of review of contempt orders is as follows:
[A]n appellate court has the authority to determine
whether the findings of the trial court support its legal
conclusions, but may only interfere with those
conclusions if they are unreasonable in light of the trial
3The trial court referred to its October 18, 2018 order as both an opinion and
order.
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court’s factual findings. This [c]ourt will not reverse
or modify a final decree unless there has been an error
of law or an abuse of discretion, or if the findings are
not supported by the record, or there has been a
capricious disbelief of the credible evidence.
Furthermore [e]ach court is the exclusive judge of
contempt against its process, and on appeal its
actions will be reversed only when a plain abuse of
discretion occurs.
Sutch v. Roxborough Memorial Hosp., 142 A.3d 38, 67 (Pa.Super. 2016)
(citation and bolding omitted), appeal denied, 163 A.3d 399 (Pa. 2016).
Furthermore,
[t]o be punished for contempt, a party must not only
have violated a clear 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.
Sutch, 142 A.3d at 67-68 (citation and bolding omitted). In civil contempt
proceedings, “the burden of proof rests with the complaining party to
demonstrate that the defendant is in noncompliance with a court order.”
MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa.Super. 2012), appeal
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denied, 75 A.3d 1282 (Pa. 2013). To prove civil contempt, the asserting
party must show non-compliance with an order of the court by a
preponderance of the evidence.” Diamond v. Diamond, 792 A.2d 597, 601
(Pa.Super. 2002). However, the “[i]nability to comply is an affirmative
defense which must be proved by the alleged contemnor. There is no
contempt if the alleged contemnor, without fault on his part is unable to
comply with the order, and has in good faith attempted to comply.” Cecil
Township v. Klements, 821 A.2d 670, 675 (Pa.Super. 2003) (citations
omitted).
The elements of civil contempt may be proved by circumstantial
evidence and logical inference from other facts. See Commonwealth v.
Reese, 156 A.3d 1250, 1258 (Pa.Super. 2017), appeal denied, 173 A.3d
1109 (Pa. 2017). Wrongful intent can be inferred where it is clear from the
language of the court’s order that the conduct in question violates the court’s
order and the evidence shows that the contemnor knowingly failed to comply.
See Commonwealth v. Lambert, 147 A.3d 1221, 1227 (Pa.Super. 2016).
“Additionally, when making a determination regarding whether a defendant
acted with wrongful intent, the court should use common sense and consider
context, and wrongful intent can be imputed to a defendant by virtue of the
substantial certainty that his actions will violate the court order.” Reese, 156
A.3d at 1258 (citation omitted).
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A review of the record supports the trial court’s findings of fact and
conclusions of law. In July of 1995, Figlo engaged Hawley to restore the Buick.
(Notes of testimony, 8/22/19 at 26.) In 2014, plaintiff filed suit to recover
the Buick and monetary damages. The terms of the court-approved
settlement were clear and concise. Hawley was to complete the restoration
of the Buick on or before December 10, 2015. (See stipulation, 12/11/14 at
¶ 3.) The vehicle was to be “road worthy,” which the parties “defined as being
able to pass Pennsylvania inspection standards.” (Id. at ¶ 4.) The total
amount for labor and parts was not to exceed $26,147. (Id. at ¶ 5.) The
time for completion could only be extended if [Hawley] could demonstrate that
he “ordered a necessary part in a timely fashion and that said part is not
available within a reasonable time period.” (Id. at ¶ 7.)
Here, as found by the trial court, Figlo proved, by a preponderance of
the evidence, that Hawley was in contempt. Figlo’s son attempted to retrieve
the vehicle but Hawley would not release it until he received $ 30,835.75, an
amount in excess of that provided for in the stipulation. (Id. at ¶ 5.) The
vehicle was released on December 20, 2017. (See notes of testimony,
8/22/19 at 43.) Prior to the departure of Figlo’s son, one of Hawley’s
employees threw some parts in the trunk. (Id. at 47.) Although the Buick
had a current Pennsylvania inspection sticker, upon driving away, Figlo’s son
could not get the vehicle to stop without using both feet on the brakes. (Id.
at 45, 47, 48.) Among numerous deficiencies, neither the windows nor the
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convertible top worked. (Id. at 45.) The sun visor was falling down, the
vehicle was leaking fluids, the hood was held down by a wire or coat hanger,
and the Buick required that ether be sprayed in order for the vehicle to start.
(Id. at 45, 47-49.) The inside door had no panel, there were no backs to the
front seats, and the back filler panel was missing. (Id. at 52-54.) The vehicle
did not leave Figlo’s son’s garage until it was towed to Edwin Stroble’s garage.
(Id. at 48.)
Two experts testified on Figlo’s behalf.4 Theodore Thomas testified that
in August 2017, Hawley brought the Buick to him for transmission work. (Id.
at 33.) Mr. Thomas worked on the vehicle from August 25, 2017 to October 1,
2017. (Id. at 37.) He found the transmission was full of sandblasting sand
and had to be replaced. (Id. at 34-36.) Mr. Thomas further found that the
Buick was leaking brake fluid, engine oil, and anti-freeze. (Id. at 39-40.)
Edwin Stroble, Jr., was contacted in June or July of 2018 to restore the
vehicle to an operational and drivable condition. (Id. at 5.) He worked on
the Buick in September and October of 2018. (Id. at 7.) Stroble testified, in
detail, as to all the issues with the Buick and the repairs that he performed.
(Id. at 9-15.) In his opinion, the vehicle did not pass inspection when he
received it, and the problems with the Buick did not develop while the vehicle
was stored in Figlo’s son’s garage. (Id. 15-20.)
4 Hawley stipulated to their qualifications. (Id. at 5, 33.)
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The trial court found that “there are still significant areas requiring
attention before the Buick could be deemed road worthy.” (Trial court order,
10/16/19 at unnumbered 1.) Further, “it would take an additional $ 20,000.00
to make the car road worthy and pass inspection pursuant to the terms of the
[s]tipulation entered in this matter on December 11, 2014.” (Id. at
unnumbered 2.) “[A]ny car with these defects could not possibly be expected
to pass a Pennsylvania inspection. . . .” (Id.) Finally, despite the fact that
Hawley possessed a valid Pennsylvania inspection license, he “took the Buick
to Old Times Garage in Clarkstown, Pennsylvania[,]” where “[a]n approval
sticker was applied despite the . . . deficiencies.” (Id. at unnumbered 2-3.)
The direct and circumstantial evidence of record supports the trial court’s
finding of contempt in that Hawley had notice of the stipulation and order, did
not comply with it in over two years past the deadline, and acted volitionally
and with wrongful intent.
Hawley contends the trial court improperly placed the burden of proof
on him to show that he was not in contempt. However, the contemnor has
the burden of proving the affirmative defense of inability to comply. See Cecil
Township v. Klements, supra.
The stipulation provided that in order for the completion date to be
extended, Hawley had to demonstrate that a part was ordered in a timely
manner, and that the part was not available within a reasonable time period.
Hawley asserted that he could not comply with the completion date in the
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stipulation because he was waiting for chrome parts. (See notes of testimony,
8/22/19 at 70-72, 89, 91-92.) The trial court concluded that Hawley did “not
ma[k]e a sufficient showing that he ordered a necessary part in a timely
manner, nor that said parts were not available within a reasonable time
period.”5 (Trial court order, 10/18/19 at unnumbered 3.)
We, therefore, find that the trial court did not abuse its discretion or
commit an error of law in determining that Hawley was in contempt of the
stipulation and order of court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2020
5 The trial court also found that Figlo did not agree to any extension. (Trial
court order, 10/18/19 at unnumbered 3.) We do note that Figlo’s son testified
that he agreed to an extension from the stipulated completion date because
of the chrome. (Notes of testimony, 8/22/19 at 43.) However, he expected
the delay in getting the chrome would be 2 weeks to a month, not two years.
(Id. at 44.)
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