IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania, : Department of Environmental : Protection : : v. : No. 2094 C.D. 2011 : SUBMITTED: June 22, 2012 Thomas Peckham and Patricia : Peckham, : Appellants : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: September 7, 2012 Thomas and Patricia Peckham (collectively, the Peckhams), appeal pro se from the order of the Court of Common Pleas of Erie County that granted the petition for contempt of the Department of Environmental Protection (the Department) due to the Peckhams failure to comply with common pleas June 21, 2011 order. 1 We affirm. 1 Appellate jurisdiction has not been challenged in this case. Nonetheless, we note that an order declaring a party to be in civil contempt and imposing sanctions, with no further court order required before the sanctions take effect, is considered to be final and appealable by the contemnor, even where the order contains a purge condition. Pa. App. Practice 2d 312:17 [1 G. Ronald Darlington, et al., Pa. Appellate Practice 312:17 (2 nd ed)].
The relevant background of this case is as follows. The Peckhams own and operate Moon Meadows Campground, located at 9915 Station Road, Greenfield Township, Erie County. The site contains a public water system, as defined by Section 3 of the Pennsylvania Safe Drinking Water Act (Act), Act of May 1, 1984, P.L. 206, as amended, 35 P.S. 721.3. 2 In July 2010, the Department conducted an inspection of the water supply and determined that the Peckhams were operating a public water system in violation of Section 7(b) of the Act, 35 P.S. 721.7(b), 3 and applicable regulations. Accordingly, the 2 Section 3 of the Act provides as follows: Public water system. A system for the provision to the public of water for human consumption which has at least 15 service connections or regularly serves an average of at least 25 individuals daily at least 60 days out of the year. The term includes: (1) Any collection, treatment, storage and distribution facilities under control of the operator of such system and used in connection with such system. (2) Any collection or pretreatment storage facilities not under such control which are used in connection with such a system. (3) A system which provides water for bottling or bulk hauling for human consumption. 3 Section 7(b) of the Act provides as follows: (b) Noncommunity water systems permits required. It shall be unlawful for any person to construct, operate or substantially modify a noncommunity water system without first having received a written permit from the department, unless: (1) the noncommunity water system is operated under a valid permit issued under other law... or the noncommunity water system is a type which the department determines can be adequately regulated through standardized specifications and conditions; and (Footnote continued on next page ) 2
Department issued two notices of violation to the Peckhams with regard to various violations and deficiencies pertaining to the water supply. Department s October 6, 2010 Administrative Order at 5-6; Supplemental Reproduced Record (S.R.R.) at 5-6b. In September 2010, the Department learned that the Peckhams were permitting persons to live on the campground and consume drinking water from the water supply without a campground license, without correcting the significant deficiencies in the water supply and without a permit or approval from the Department. Id. at 6-7; S.R.R. at 6-7b. In response, the Department issued another notice of violation to the Peckhams for operating the campground without a valid campground license. Id. at 7; S.R.R. 7b. In October 2010, the Department reinspected the site and concluded that the Peckhams were continuing to operate a public water system without a permit or approval from the Department. Accordingly, the Department entered an administrative order on October 6, 2010, requiring the Peckhams, inter alia, to cease and desist operating a public water system at the site, to provide no more than fourteen connections at the site and to provide water for human consumption to no more than twenty-four persons per day unless and until they 1) obtain all necessary public water supply permits and/or other approvals from the Department under the Act and its regulations, and 2) receive written notice from the Department that they have satisfied all the requirements of the order, the Act and its regulations. Id. at 9-10; S.R.R. at 9b. 4 In (continued ) (2) the noncommunity water system complies with all other requirements of this act and the regulation adopted under it. 4 Although the Department in its supplemental reproduced record inadvertently omitted page 10 of the administrative order, the entire order is part of the original record. 3
addition, the Department required them to reduce the number of service connections to fourteen or less and to physically disconnect water service to all remaining fourteen service connections by October 14, 2010. Id. 5 In June 2011, the Department filed a petition to enforce its administrative order with common pleas. The court issued a rule to show cause requiring the Peckhams to answer the petition and set a hearing date. Notwithstanding the Peckhams failure to answer the petition, Mr. Peckham appeared pro se at the hearing. Following the hearing, the court ordered immediate compliance with the Department s directives. Common Pleas June 21, 2011 Order at 1-2; Reproduced Record (R.R.) at 4-5. The common pleas docket entries reflect that the Peckhams failed to appeal from the court s order. In August 2011, the Department filed a petition for contempt, alleging, inter alia, that it had inspected the site and learned that the Peckhams had failed to comply with the court s June 21, 2011 order. Common pleas issued a rule to show cause, directed the Peckhams to file an answer within fourteen days and scheduled a hearing. In lieu of an answer, the Peckhams filed a petition for Moon Meadows to operate 51 connections and serve a population of 100, which the court denied prior to the hearing. At the October 2011 hearing, the court noted the Peckhams failure to file an answer to the Department s petition for contempt and determined that all averments in the petition were deemed admitted. October 4, 2011 Hearing, Notes of Testimony (N.T.) at 3-6; R.R. at 12-15. The remainder of the hearing primarily 5 In its brief, the Department indicates that the Peckhams appealed the Department s October 2010 administrative order to the Environmental Hearing Board and that the Board subsequently dismissed their appeal. Department s Brief at 5. Further, the Department states that the Peckhams failed to take an appeal from the Board s dismissal. 4
consisted of the Department s witnesses establishing what they had discovered in their August 2011 inspection. At the conclusion of the hearing, the court granted the Department s petition for contempt and ordered as follows: It is therefore ORDERED that the [Peckhams] shall purge the Contempt of Court by completely closing Moon Meadows Campground... on or before November 3 rd, 2011 until such time as [they] obtain all permits from the Department to operate a public water supply at the Site and this Court issues an Order allowing [them] to reopen [it]. Because the water supply [there] cannot be adequately regulated through standardized specifications and conditions, [they] shall obtain a construction and operation permit from the Department in accordance with the requirements of the Sate [sic] Drinking Water Act and its Regulations. And further, [they] shall pay [the Department s] costs and expenses of this action in the amount of $5,605.41. Failure to comply with this Order of court shall result in further sanctions which may include incarceration. Common Pleas October 6, 2011 Order; R.R. at 6 (emphasis in original). The Peckhams timely appeal to this Court followed. The Peckhams present fourteen issues for our review, but the only issues properly before us are whether common pleas erred in granting the Department s petition for contempt and whether the court erred in awarding the Department costs and attorney s fees. It is well established that [c]ourts possess an inherent power to enforce their orders by way of the power of contempt. Dep t of Envtl. Prot. v. Cromwell Twp., Pa.,, 32 A.3d 639, 653 (2011) (citations omitted). In civil contempt proceedings, the complaining party bears the burden to demonstrate by a preponderance of the evidence that a party failed to comply with a court order. In re Contempt of Cullen, 849 A.2d 1207, 1210 (Pa. Super. 2004). Specifically, the complainant must prove the following: (1) that the 5
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. Id. at 1210-11 (citation omitted). Moreover, notice and an opportunity to be heard are essential due process requisites for a finding of civil contempt and a five-step process is required in order to hold a party in contempt, to wit: 1) a rule to show cause why attachment should not issue; 2) an answer and hearing; 3) a rule absolute; 4) a hearing on the contempt citation; and 5) an adjudication of contempt. Cleary v. Dep t of Transp., Bureau of Driver Licensing, 919 A.2d 368, 372 (Pa. Cmwlth. 2007) (citations omitted). Strict satisfaction of all five steps, however, is not required as long as the essential due process requisites are satisfied. Cullen, 849 A.2d at 1211; Dep t of Envtl. Res. v. Sabia, 512 A.2d 1297, 1300 (Pa. Cmwlth. 1986). Finally, an order of contempt will not be reversed absent the showing of a plain abuse of discretion. Cullen, 849 A.2d at 1210. In the present case, common pleas issued a rule to show cause affording the Peckhams an opportunity to file an answer to the contempt petition. Additionally, the Peckhams received a full hearing in which the court afforded Mr. Peckham an opportunity to cross-examine the Department s witnesses, testify on his own behalf and present any relevant evidence. As is evident from the transcript, Mr. Peckham failed to present any defense for failure to comply with the court s June 21, 2011 order. Instead, he again focused on the definition of service connection and other unrelated matters. In acknowledgement of the wellestablished tenet that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become 6
a retrial of the original controversy, 6 the court took the final step in the process and adjudged the Peckhams to be in contempt. Upon review, we conclude that common pleas fulfilled the essential due process requisites and that it did not abuse its discretion in finding the Peckhams in contempt. The Peckhams also challenge common pleas imposition of costs and attorney s fees, arguing that the amounts are excessive. It is well established that attorney s fees and costs are among the special damages for which recovery may be had in civil contempt proceedings. Borough of Slatington v. Ziegler, 890 A.2d 8, 12 (Pa. Cmwlth. 2005) (citation omitted). Our Superior Court has noted that counsel fees are a proper element of a civil contempt order, because the award of counsel fees is intended to compensate innocent litigants for expenses made necessary by the conduct of an opponent rather than merely punish the contemnor. Diamond v. Diamond, 792 A.2d 597, 600 (Pa. Super. 2002). In the contempt petition at issue, which the Peckhams failed to answer, the Department requested that they pay its costs and expenses of this contempt action, including but not limited to the Department s personnel costs and attorneys fees. Petition for Contempt at 5. At the hearing, the Department presented a spread sheet showing its costs and attorney s fees for an approximate total of $5600. October 4, 2011 Hearing, Exhibit K. 7 In response, Mr. Peckham did not challenge the amounts, but merely related that he was in bankruptcy. Id., N.T. at 7; R.R. at 16. In its subsequent opinion addressing the Peckhams statement of errors complained of on appeal, common pleas rejected their 6 Cromwell Twp., Pa. at n.15, 32 A.3d at 652-53 n.15 (citations omitted). 7 Exhibit K is in the original record, but not in either the reproduced record or the supplemental reproduced record. 7
argument that the spread sheet constituted an inflated and padded bill, concluding that the Department adequately justified its costs and expenses and that the Peckhams failure to object to them at the October 2011 hearing constituted a waiver. Common Pleas January 10, 2012 Opinion at 3; R.R. at 9. We agree. Dennis v. Se. Pa. Transp. Auth., 833 A.2d 348, 352 (Pa. Cmwlth. 2003) (an issue is waived where a litigant fails to make a timely, specific objection at trial). Accordingly, we affirm. BONNIE BRIGANCE LEADBETTER, Judge 8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania, : Department of Environmental : Protection : : v. : No. 2094 C.D. 2011 : Thomas Peckham and Patricia : Peckham, : Appellants : O R D E R AND NOW, this 7th day of September, 2012, the order of the Court of Common Pleas of Erie County is hereby AFFIRMED. BONNIE BRIGANCE LEADBETTER, Judge