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COMMONWEALTH PENNSYLVANIA v. EUGENE J. ZIOMEK (01/08/76)

decided: January 8, 1976.

COMMONWEALTH OF PENNSYLVANIA, BY ISRAEL PACKEL, ATTORNEY GENERAL, PLAINTIFF,
v.
EUGENE J. ZIOMEK



ORIGINAL JURISDICTION

COUNSEL

Allen C. Warshaw, Deputy Atty. Gen., Dept. of Justice, Harrisburg, for plaintiff.

Joseph J. Gale, Wilkes-Barre, for defendant.

Kramer, Judge.

Author: Kramer

KRAMER, Judge.

This matter comes within this Court's original jurisdiction. This opinion covers that portion of the case involving a motion, as amended, filed by the Commonwealth of Pennsylvania for an adjudication that Eugene J. Ziomek is in contempt for violations of preliminary and permanent injunctions issued by this Court, together with a motion for the imposition of sanctions.

To provide an understanding of the order which follows, the following summary of the pertinent facts and procedure is set forth. On February 1, 1973, the Commonwealth filed a complaint in equity against Ziomek under the provisions of the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. § 201-1 et seq., seeking to enjoin Ziomek from alleged enumerated violations of that Act. In the complaint it was alleged that Ziomek was "fraudulently, unfairly and deceptively" offering services in connection with applications for "black lung benefits". After a hearing, this Court issued a preliminary injunction order on February 21, 1973, and thereafter, on November 13, 1974, issued a permanent injunction order. The wording of these two orders was almost identical, and in the latter Ziomek was enjoined and restrained from:

"1. soliciting clients for an engaging in the practice of distributing, preparing and expending applications in the Bureau of Occupational Injury and Disease Compensation (formerly Workmen's Compensation Bureau) of the Department of Labor and Industry of this Commonwealth for benefits on behalf of claimants under the Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq.

2. soliciting clients for and engaging in the practice of distributing, preparing and expediting applications to the Social Security Administration of the Federal Government for benefits on behalf of claimants under the Coal Mines Health and Safety Act, Subchapter IV, Pub.L. 91-173, December 30, 1969, 83 Stat. 792, as amended, 30 U.S.C. § 901 et seq.

3. engaging in the practice of representing claimants at various stages of processing said federal and state applications;

4. concealing or dissipating in any way any money now in his possession or subject to his control which defendant [Ziomek] has received or receives in the future as a result of defendant's 'black lung' practice."

No appeal was taken from either of these two orders. On April 4, 1975, the Commonwealth filed a petition for a rule to show cause why Ziomek should not be held in contempt for violation of this Court's injunctions. The petition was later expanded by amendment. On April 28, 1975, the matter was called for hearing, but Ziomek did not appear due to illness, and the matter was continued without the taking of any testimony. It was rescheduled for hearing on June 10, 1975, and once again, Ziomek did not appear for the same reason. Upon inquiry by the Court, through counsel for both the Commonwealth and Ziomek, it was determined that Ziomek had been a patient in a hospital and that Ziomek was advised by his physician not to travel to Harrisburg for a hearing. Thereafter, to accommodate Ziomek, this Court, on October 22, 1975, filed an order rescheduling the hearing for November 24, 1975, in a courtroom of the Court of Common Pleas of Luzerne County in Wilkes-Barre. Ziomek appeared at this hearing. At every hearing held in this matter, counsel for Ziomek was present.

At the June 10, 1975, and November 24, 1975, hearings, at which the Commonwealth presented testimony and evidence in support of its contempt motions, counsel for Ziomek was provided the opportunity to cross-examine all of the Commonwealth witnesses. At the November 24 hearing, Ziomek took the witness stand when called as for cross-examination by the Commonwealth for examination into matters stipulated by both counsel. At the conclusion of the Commonwealth's case, Ziomek offered no witnesses, testimony or evidence in his defense.

FINDINGS OF FACT

Based upon the testimony and evidence received at the June 10, 1975, and the November 24, 1975, hearings, and upon the single deposition filed, the Court finds:

1. That in violation of this Court's preliminary and permanent injunctions, noted above, Ziomek received payment from the following claimants in the amounts stated:

     a. Anna Raishkowski: $2,157 in March, ...


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