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JAMES R. WATSON v. CITY SHARON AND THOMAS ARMOUR (08/30/79)

decided: August 30, 1979.

JAMES R. WATSON, JR., APPELLANT
v.
CITY OF SHARON AND THOMAS ARMOUR, D.O., APPELLEES



Appeal from the Order of the Court of Common Pleas of Mercer County in case of James R. Watson, Jr. v. City of Sharon and Thomas Armour, D.O., No. 46 E.Q. 1977.

COUNSEL

Herman M. Rodgers, with him Rodgers, Marks & Perfilio, P.C., for appellant.

P. Raymond Bartholomew, with him William J. Madden, and Cusick, Madden, Joyce and McKay, for appellees.

Judges Wilkinson, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 45 Pa. Commw. Page 286]

James R. Watson, Jr., Appellant, instituted an action in equity in the Court of Common Pleas of Mercer County challenging the action of the City of Sharon

[ 45 Pa. Commw. Page 287]

    and Dr. Thomas Armour (collectively, the city) which suspended Appellant's license to operate an ambulance service in Sharon. Appellant's suit seeks a preliminary injunction and money damages.*fn1 A hearing was fixed to determine whether the preliminary injunction should be issued. However, at the time fixed for the hearing, the parties reached an agreement and a consent "order" was entered by the trial judge on December 16, 1977. The consent order specifically stated that there were no admissions by the parties.

On February 1, 1978, the city filed a contempt petition alleging that Appellant had violated the consent order. Appellant responded to the rule granted by the court and an evidentiary hearing was held to determine whether an attachment should issue against the Appellant for the alleged violation. In his answer to the petition for contempt, Appellant raised the issue of the constitutionality of the city's ordinance pursuant to which ambulance services were licensed.

At the conclusion of the evidentiary hearing, the trial court handed down an opinion containing findings of fact and a discussion of the law. Attached to the opinion was an order dated March 15, 1978 which dissolved the rule and found Appellant "not to be in contempt of this court." However, the order then went on, purportedly, to "clarify" Paragraph 2 of the consent order. It should be noted also that the trial court's opinion did not reach the issue of the constitutionality of the ordinance, finding it unnecessary to do so.

Appellant then filed exceptions under Pa. R.C.P. 1518 alleging that the trial court (1) exceeded its authority when it clarified the original consent order

[ 45 Pa. Commw. Page 288]

(which clarification Appellant contends was in fact an expansion of the terms of that order) without Appellant's consent and (2) should have held the ordinance in question unconstitutional. The city moved to strike the exceptions because (1) they were not authorized by Pa. R.C.P. 1518, (2) they were untimely filed (they were filed one day late) and (3) Appellant was not aggrieved by the court order. The trial court then issued a rule with respect to the city's motion whereupon the Appellant filed his motion asking leave of the trial court to file his exceptions nunc pro tunc. That ...


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