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RICHARD G. PAOLINO v. CITY PHILADELPHIA AND EAST TORRESDALE CIVIC ASSOCIATION (02/05/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 5, 1987.

RICHARD G. PAOLINO, D.O. AND ELAINE M. PAOLINO, H/W, APPELLANTS
v.
CITY OF PHILADELPHIA AND EAST TORRESDALE CIVIC ASSOCIATION, APPELLEES. HORACE A. STERN, ESQUIRE, TRUSTEE, ADDITIONAL APPELLANT

Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of City of Philadelphia v. Richard G. Paolino, D.O. and Elaine M. Paolino, his wife, No. 1473 August Term, 1985.

COUNSEL

Jan Z. Krasnowiecki, with him, Richard J. Squadron and Charles Auspitz, Pepper, Hamilton & Scheetz, for appellant/trustee.

Flora Barth Wolf, Chief Assistant City Solicitor, with her, Handsel B. Minyard, City Solicitor, for appellee, City of Philadelphia.

Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 103 Pa. Commw. Page 526]

Horace A. Stern (Trustee), as trustee of the Chapter 11 bankrupt estates of Dr. Richard G. Paolino and Elaine M. Paolino (Debtors), appeals from that part of a contempt order of the Court of Common Pleas of Philadelphia assessing a fine of $5,000 against the Debtors for failure to comply with a previous court order to cease and desist violating various zoning ordinances of the City of Philadelphia (City).*fn1 We affirm.

On August 9, 1984 the City sought to enjoin the Debtors from conducting a medical practice on certain premises in violation of the City's zoning code. On July 24, 1985 such an injunction was issued. Before the injunction was issued, however, their creditors, on May 24, 1985, petitioned the United States Bankruptcy Court of the Eastern District of Pennsylvania (Bankruptcy Court), to place the Debtors in bankruptcy under Chapter 11 of the United States Bankruptcy Code (Bankruptcy Code). On November 15, 1985, after finding that the Debtors failed to comply with the earlier cease-and-desist order, the court of common pleas ordered the Debtors' premises padlocked and fined the Debtors $5,000 for failure to obey the court order.*fn2 On

[ 103 Pa. Commw. Page 527]

November 21, 1985 the Bankruptcy Court appointed the Trustee on motion of the Debtor's creditors.*fn3 On November 22, 1985 the Debtors voluntarily paid the fine to the City with a cashier's check and on that same day they filed their appeal with this Court. The Debtors, however, have not individually continued in this appeal. Instead, the Trustees sought leave of this Court to be substituted or added as a party-appellant pursuant to Pa. R.A.P. 502, and on May 5, 1986 this Court granted the Trustee's application and the Trustee was substituted as a party.*fn4

[ 103 Pa. Commw. Page 528]

Essentially, the Trustee argues that the imposition and collection of a fine for zoning violations from someone in bankruptcy violates the automatic-stay provisions of Section 362 of the Bankruptcy Code, 11 U.S.C. ยง 362 (1984). We do not reach the merits of this argument, however, for we hold that by voluntarily paying the fine, the Debtors, and by extension the Trustee, waived the right to appeal the contempt order.

Voluntary payment of a fine by a contemnor ordinarily precludes him from subsequently appealing the underlying contempt order. Phoenix Glass Co. v. Local Union No. 8381, United Steel Workers, 244 Pa. Superior Ct. 16, 366 A.2d 293 (1976); Reap's Appeal, 88 Pa. Superior Ct. 147 (1926); see also Altemose Construction Co. v. Building and Construction Trades Council, 449 Pa. 194, 296 A.2d 504 (1972) (plurality opinion, but six participating justices agreed on contempt issue), cert. denied, 411 U.S. 932 (1973). Absent allegations of want of jurisdiction or serious procedural irregularities coupled with allegations of duress, the matter is moot and not subject to appellate review. Altemose Construction. Here, voluntary payment of the fine by the Debtors foreclosed their right to appeal the contempt order, since the court of common pleas clearly was possessed of proper jurisdiction in this matter and no procedural defects or unlawful duress have been alleged.

Because the Debtors have waived their right to appeal, the Trustee likewise has lost the right to appeal. Although to our knowledge no court of this Commonwealth has addressed this precise issue, we are of the opinion that when a party-appellant is substituted pursuant to Pa. R.A.P. 502, such party-appellant must take the case as he finds it. The substituted party-appellant can enjoy no greater rights than the original appellant. Accordingly, since the appeal of the contempt order in question here is moot as to the Debtors,

[ 103 Pa. Commw. Page 529]

    it is also moot as to the Trustee, and we are unable to consider the merits of the Trustee's claim.

Affirmed.

Order

Now, February 5, 1987, that portion of the order of the Court of Common Pleas of Philadelphia County, No. 1473 August Term, 1984 dated November 15, 1985 imposing a $5,000 fine is affirmed.

Disposition

Affirmed.


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