Commonwealth (Bureau of Consumer Prot.) v. Lubisky, PICS Case No. 14-0503 (Pa. Commw. March 28, 2014) Jubelirer, J. (14 pages).

COMMONWEALTH COURT

The Legal Intelligencer

CIVIL PROCEDURE

Contempt Order • Finality • Appealability • Service of Process • Opening Default

Commonwealth (Bureau of Consumer Prot.) v. Lubisky, PICS Case No. 14-0503 (Pa. Commw. March 28, 2014) Jubelirer, J. (14 pages).

Contempt order is final order that had to be appealed in 30 days; petition to open order, filed more than one year after its entry, was procedurally deficient; service mailed to counsel's address on last document proper even though counsel had moved. Affirmed.

Contractor and Bureau of Consumer Protection entered into an assurance of voluntary compliance (AVC), pursuant to which contractor was to pay $10,000 to settle certain outstanding violations and to cease and desist from violating the law. The AVC indicated that time was of the essence, and the court retained jurisdiction to enforce the AVC, if necessary. Contractor satisfied the monetary portion of the AVC and trial court marked judgment satisfied.

Bureau electronically filed contempt petition with trial court asserting that, other than paying the $10,000, contractor had failed to comply with the terms of the AVC. The petition was electronically served on contractor's counsel pursuant to Pa.R.Civ.P. 205.4 and was also served on contractor's counsel at the address listed on the AVC. However, contractor's counsel had moved to a different suite in the same building. Contractor did not answer and court granted contempt petition.

Contractor received the contempt order but did not appeal. Instead, more than one year later, he filed a petition to open, contending that bureau did not properly serve the petition.

Trial court denied the petition to open, explaining that a judgment entered as a result of a finding of contempt is not considered a default judgment, but is a final appealable order that must be appealed within 30 days. As contractor did not appeal, he waived any issues related to the petition. Filing a petition to open more than 400 days after entry of the order was procedurally improper. In any event, service was proper as bureau sent contempt petition to the address provided for counsel on the AVC.

Contractor appealed, asserting trial court erred in denying his petition to open. The Commonwealth Court affirmed.

A contempt order that actually imposes sanctions is final and appealable when it is entered. Since contractor did not appeal the order within 30 days, it became final and any issues associated with the entry of that order could no longer be raised. Therefore, trial court did not err or abuse its discretion in denying petition to open because it was procedurally improper and an untimely appeal of the contempt order.

Furthermore, for a petitioner to prevail in opening a default judgment, the petition must be promptly filed, a meritorious defense must be shown and there must be a reasonable excuse for failure to file an answer. Timeliness is measured from the date that notice of the entry of the judgment was received. The contempt order was docketed on Nov. 17, 2011. Contractor acknowledged receiving the order before the end of November 2011, yet did not file the petition to open until 435 days had passed. Moreover, contractor may not establish a meritorious defense based on steps he took after he received the contempt order.

Finally, contractor's excuse for delay, that it was not properly served because petition was sent to the incorrect address, is not reasonable. Pa.R.Civ.P. 440(a)(1) provides that mailing a copy of the legal paper to the address of the party's attorney or record endorsed on an appearance or prior pleading is proper service. The last document in the record that was endorsed by contractor's counsel with counsel's address, prior to the contempt petition, was the AVC. Bureau mailed the contempt petition to the address listed on the AVC. Having mailed the contempt petition to the last address listed for contractor's counsel, which was not returned and was in the same building as counsel's new office, bureau complied with Rule 440(a)(1).

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