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SCHNABEL ASSOCIATES v. BUILDING AND CONSTRUCTION TRADES COUNCIL PHILADELPHIA AND VICINITY (01/04/85)

filed: January 4, 1985.

SCHNABEL ASSOCIATES, INC.
v.
THE BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY, AFL-CIO, APPELLANT



No. 03297 Philadelphia 82, Appeal from the Order of October 22, 1982 in the Court of Common Ples of Delaware County, Civil Division, at No. 81-16863.

COUNSEL

Richard B. Sigmond, Philadelphia, for appellant.

Lawrence S. Coburn, Philadelphia, for appellee.

Spaeth, President Judge, and Brosky and Hoffman, JJ. Spaeth, President Judge, files a concurring and dissenting opinion.

Author: Hoffman

[ 338 Pa. Super. Page 380]

This is an appeal from an order holding appellant in civil contempt and imposing fines. Appellant challenges the propriety of the proceedings below, the sufficiency of the evidence supporting the finding of contempt, and the assessment of the fines. We affirm in part and vacate in part.

In November of 1981, appellee, a construction company, began developing the Bethesda House project in Upper

[ 338 Pa. Super. Page 381]

Chichester Township, Delaware County. Disputes over wage and employment benefit policies caused appellant, a labor organization comprised of building and construction unions in the Philadelphia area, to establish a picket line at appellee's construction site. On November 12, 1981, appellee filed a complaint against appellant seeking to enjoin the illegal mass picketing and misconduct and to limit the number of pickets. On December 3, 1981, the lower court entered an order (1) enjoining appellant, or any of its agents, employees and representatives, from interfering with appellee's job site by obstructing ingress or egress, mass picketing, violence or intimidation; and (2) limiting the number of pickets to six, with each picket at least three feet apart and more than 50 yards from any entrance to the site.*fn1 Following the entry of that order, several of appellant's members committed acts of violence on the picket line. Consequently, on December 15, 1981, appellee filed petitions for attachment for civil contempt and for indirect criminal contempt. A series of evidentiary hearings were held on December 30, 1981, January 12, 1982, February 16-17, 1982, May 27, 1982 and June 24, 1982. Finally, on October 22, 1982, the lower court filed an Opinion containing findings of fact and conclusions of law and the following Order:

AND NOW, to wit, this 20th day of October A.D. 1982, after hearing testimony and reviewing Briefs by respective counsel, the following is ORDERED and DECREED:

1. The Council [appellant] is found to be in civil contempt of the Court's Order of December 3, 1981 as amended;

2. Clarence Ridle is found to be in civil contempt of the Court's Order of December 3, 1981, as amended;

3. Edward McClintock is found to be in civil contempt of the Order of December 3, 1981 as amended;

4. David Lyons is found to be in civil contempt of the Court's Order of December 3, 1981 as amended;

[ 338 Pa. Super. Page 3825]

. Jack Scott is found to be in civil contempt of the Court's Order of December 3, 1981 as amended;

6. John Garvey is found to be in civil contempt of our Order of December 3, 1981 as amended;

7. The Council [appellant] is ordered to pay a [prospective] fine of Twenty-five Thousand ($25,000.00) Dollars, returnable upon there being no further contemptuous acts at the Bethesda House job site.

8. The Council [appellant] is ordered to pay the attorneys' fees of the Plaintiff.

9. The Council [appellant] is further ordered to post a [bond] in the amount of Five Hundred Thousand ($500,000.00) Dollars to compensate Plaintiff for any additional damages.

10. The Council [appellant] is ordered to pay two-thirds (2/3) of the Sheriff's bill incurred by the Plaintiff.

11. Individual Defendants Clarence Riddle, Edward McClintock, David Lyons, Jack Scott and John Garvey are fined the sum of One Hundred ($100.00) Dollars each and are further Ordered not to commit any further acts of contempt, under threat of being attached for indirect criminal contempt.*fn2

On November 15, 1982, appellant filed the instant appeal.*fn3 On December 22, 1982, appellee filed a motion to quash the appeal because of appellant's failure to file timely exceptions. This Court, in a February 8, 1983 per curiam order, denied the motion without prejudice to the parties to raise the jurisdictional issue at argument.

The first issue we must resolve is whether the appeal should be quashed because of appellant's failure to file exceptions to the October 20, 1982 contempt order. Appellee argues that the order was a decree nisi and, therefore,

[ 338 Pa. Super. Page 383]

    appellant was required to file timely exceptions pursuant to Pa.R.Civ.P. 1518. Appellant asserts that the order was final and required no exceptions. Under Pa.R.Civ.P. 1517(a),

[t]he adjudication shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court's conclusions of law and (4) a decree nisi.

Pa.R.Civ.P. 1518 provides that exceptions may be filed by any party to the decree nisi within ten days after notice of the filing of the adjudication and that matters not covered by exceptions are deemed waived. Pa.R.Civ.P. 1519(a) provides that, if no exceptions are filed within the ten-day period, then the decree nisi is to be entered by the prothonotary on praecipe as the final decree.*fn4 See Commonwealth v. Tolleson, 462 Pa. 193, 340 A.2d 428 (1975) (failure to file exceptions resulted in order becoming final and waiver of issues on appeal). However, in Commonwealth v. Derry Township, Westmoreland County, 466 Pa. 31, 351 A.2d 606 (1976), our Supreme Court held that failure to file exceptions did not preclude raising arguments on appeal where the court's order contained no findings of fact, no conclusions of law, nor any language which would indicate that the order was anything other than a final order, or that the parties were required to file exceptions to perfect a right of appeal. The Court stated: "Where the court's order neither comports with the requirements of Rule 1517 nor indicates on its face that the order is a decree nisi, it should not be presumed that exceptions must be filed in order to preserve a right of appeal." Id., 466 Pa. at 41, 351 A.2d at 611. See also Patrick & Wilkins Co. v. Adams, 456 Pa. 566, 322 A.2d 341 (1974) (parties were deprived of an opportunity to file exceptions where chancellor's adjudication included findings of fact, conclusions of law and a "final decree").

[ 338 Pa. Super. Page 384]

In the instant case, although the lower court opinion accompanying the contempt order included findings of fact and conclusions of law, the order itself did not indicate on its face that it was a decree nisi. On the contrary, the order appeared final. See College Watercolor Group, Inc. v. William H. Newbauer, Inc., 468 Pa. 103, 360 A.2d 200 (1976) ("[A] contempt order is final and appealable when it is entered."); Commonwealth v. Morrisey, 150 Pa. Superior Ct. 202, 27 A.2d 446 (1942) (order committing for contempt is final and subject to review).*fn5 While it is true that appellee filed what it titled a "Petition by Schnabel Associates, Inc. For Exceptions" pursuant to Pa.R.Civ.P. 1518, this petition only sought to make certain technical amendments to the October 20, 1982 Opinion and Order, namely, substituting the terms "prospective" and "bond" for the terms "perspective" and "bail", respectively, in the Order, and changing a statement in the Opinion from "The following acts are alleged to have occurred on December 9, 1981:" to "The following acts occurred on December 9, 1981:". Appellant did not object to the requested amendments to the Order in its answer and later withdrew its objection to the amendment in the Opinion. The lower court then granted the petition. We find that the lower court's correcting these technical errors was more appropriately covered by Pa.R.A.P. 1701(b)(1), which provides that, after an appeal is taken, the trial court may "[t]ake such ...


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