No. 1092 October Term, 1979, No. 1115 October Term, 1979, Appeals from a decree in the Court of Common Pleas, Civil Division-Equity, of Philadelphia County, No. 2379 June Term, 1964.
Edward I. Swichar, Philadelphia, for Pennypack Woods Home Ownership Assn.
Mary Alice Duffy, Philadelphia, for David and John Regan.
Hester, Disalle and Montgomery, JJ. Disalle, J., did not participate in the consideration or decision of this case.
[ 298 Pa. Super. Page 172]
On July 3, 1964, appellant, Pennypack Woods Home Ownership Association, filed a complaint in equity against appellee David Regan in the Court of Common Pleas of Philadelphia County. This complaint concerned a trespass upon real property, as well as other questions relating to the rights of use and enjoyment of said property. The case was assigned to the Honorable James T. McDermott, who heard the case without a jury.
On September 12, 1966, Judge McDermott entered an oral consent decree, in open court, upon the concurrence of all parties, setting forth certain rights and obligations of the respective parties with regard to the real property involved. The consent decree was transcribed and filed with the lower court. In the decree, Judge McDermott specified ". . . that such powers as are within our reach will be used without failure against he who fails to carry out the Order."
In June of 1976, Pennypack filed a motion with the lower court requesting that the court hold Regan in contempt for allegedly violating the consent decree of September 12, 1966. Regan filed an answer and "counterclaim" to the motion. The motion was assigned to Judge McDermott for his disposition. Counsel for Pennypack wrote a letter to Judge McDermott, requesting that a hearing on the motion for contempt be scheduled.
On April 26, 1979, without a hearing, the lower court entered an Order dismissing Pennypack's motion and Regan's "counterclaim", "as moot by reason of the passage of time". On May 6, 1980, the lower court entered its opinion in support of its order of April 26, 1979. The opinion
[ 298 Pa. Super. Page 173]
basically stated that the passage of time (almost 12 years) rendered the contempt issue moot, and that Pennypack's proper remedy was to sue in Assumpsit for violation of the "contract" to which the parties had agreed on September 12, 1966.
Appellee-Regan had been granted an extension of time to file a brief with this Court on or before February 18, 1982. ...