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Commonwealth v. Lubisky

Commonwealth Court of Pennsylvania

March 28, 2014

Commonwealth of PA, Office of Attorney General, Bureau of Consumer Protection
v.
Frank Lubisky, individually and d/b/a Union Roofing, d/b/a Union Roofing and Sheet Metal Contractor, d/b/a Philly Roofing and d/b/a C.R. Thompson Roofing, and as president of Union Roofing Contractors, Inc. and Union Roofing Contractors, Inc., d/b/a Union Roofing, d/b/a Union Roofing and Sheet Metal Contractor, d/b/a Philly Roofing and d/b/a C.R. Thompson Roofing Appeal of: Frank Lubisky, individually and d/b/a Union Roofing, d/b/a Union Roofing and Sheet Metal Contractor, d/b/a Philly Roofing and d/b/a C.R. Thompson Roofing, and as president of Union Roofing Contractors, Inc. and Union Roofing Contractors, Inc., d/b/a Union Roofing, d/b/a Union Roofing and Sheet Metal Contractor, d/b/a Philly Roofing and d/b/a C.R. Thompson Roofing

Argued February 11, 2014.

Page 329

Appealed from No. 2019 Oct Term, 2010. Common Pleas Court of the County of Philadelphia. Judge Tucker.

Raymond T. Dorizio, Philadelphia, for appellants.

Howard Hopkirk, Harrisburg, for appellee.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY JUDGE COHN JUBELIRER.

OPINION

Page 330

RENÉ E COHN JUBELIRER, Judge.

Frank Lubisky, individually and d/b/a Union Roofing, d/b/a Union Roofing and Sheet Metal Contractor, d/b/a Philly Roofing and d/b/a C.R. Thompson Roofing, and as president of Union Roofing Contractors, Inc. and Union Roofing Contractors, Inc., d/b/a Union Roofing, d/b/a Union Roofing and Sheet Metal Contractor, d/b/a Philly Roofing and d/b/a C.R. Thompson Roofing (Contractor), appeal from the March 15, 2013 Order (March 2013 Order) of the Court of Common Pleas of Philadelphia County (trial court) that denied Contractor's Petition to Open Default Judgment (Petition to Open). On appeal, Contractor argues that the trial court erred in denying the Petition to Open because the Commonwealth of Pennsylvania, Office of Attorney General, Bureau of Consumer Protection (Bureau) did not properly serve Contractor with its Petition for Contempt (Contempt Petition). The Bureau asserts that Contractor's appeal should be quashed as an untimely appeal of the trial court's Order docketed on November 17, 2011 that granted the Bureau's Contempt Petition (Contempt Order) and imposed fines against Contractor. Because we conclude that the trial court did not err or abuse its discretion in denying Contractor's Petition to Open as being procedurally improper and an attempt to untimely appeal the trial court's Contempt Order or in concluding that Contractor did not meet the requirements of opening a judgment, we affirm.

Contractor, through his businesses, provides roof replacements and repairs. (Trial Ct. Op. at 2.) The Bureau investigated Contractor pursuant to the Unfair Trade Practices and Consumer Protection Law (Law).[1] (Trial Ct. Op. at 2.) The investigation revealed a number of alleged violations of the Law, including failure to register fictitious names, failure to clearly and conspicuously disclose warranty terms and conditions, and causing a likelihood of confusion or misunderstanding regarding the source, approval, sponsorship or certification of goods or services. (Trial Ct. Op. at 2.) The Bureau also discovered alleged violations of the Home Improvement Consumer Protection Act (HICPA).[2] (Trial Ct. Op. at 2.) On October 15, 2010, Contractor and the Bureau entered into an Assurance of Voluntary Compliance (AVC), pursuant to which Contractor was to pay $10,000 to settle certain outstanding claims. (AVC at 9, R.R. at 92.) Contractor also agreed to " cease and desist from violating the [Law] and HICPA" and " comply with [the] civil laws of the Commonwealth." [3] (AVC at 6, R.R. at 89.) The AVC indicated that " [t]ime shall be of the essence with regard to [Contractor's] obligations hereunder." (AVC at 13, R.R. at 96.) The trial court retained jurisdiction to enforce the AVC, if necessary. (Trial Ct. Op. at 2-3; AVC at 12, R.R. at 95.) On June 15, 2011, an Order to Satisfy Judgment was filed with the trial court because Contractor had satisfied the monetary portion of the AVC,[4] and the trial

Page 331

court marked the judgment as satisfied. (Trial Ct. Op. at 3.)

On October 14, 2011, the Bureau electronically filed the Contempt Petition with the trial court asserting that, other than paying the $10,000, Contractor had not complied with any of the terms of the AVC. The Contempt Petition was electronically served on Contractor's counsel pursuant to Philadelphia Rule of Civil Procedure *205.4, Phila. R.C.P. No. *205.4. In addition, the certificate of service indicated that the Contempt Petition was also served on Contractor's counsel at 1518 Walnut Street, Suite 1600, Philadelphia PA, 19102, the address listed for Contractor's counsel on the AVC. Contractor's counsel, however, had moved to a different suite in the same building between the time Contractor signed the AVC and the filing of the Contempt Petition. No answer was received and, pursuant to the Contempt Order docketed on November 17, 2011, the trial court granted the uncontested Contempt Petition. The Bureau obtained a judgment against Contractor in the amount of $51,000. Contractor and his counsel received the Contempt Order, but filed no appeal. (Trial Ct. Op. at 2, 6.) On December 17, 2012, Contractor received a letter from the Collections Unit of the Office of Attorney General regarding the $51,000 judgment (Collections Notice). On January 30, 2013, Contractor filed the Petition to Open contending that the Bureau did not properly serve the Contempt Petition. The Bureau filed an answer in opposition on February 21, 2013.

In the March 2013 Order, the trial court denied the Petition to Open and Contractor appealed. The trial court directed Contractor to file a Concise Statement of Errors Complained of on Appeal, pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b). Contractor complied and asserted that the Contempt Petition was not properly served because it was sent to the old address of Contractor's counsel. In its opinion filed pursuant to Pa. R.A.P. 1925(a), the trial court explained that it denied the Petition to Open because " a judgment entered as a result of a finding of contempt is not considered a default judgment," but is a final appealable order that must be appealed within thirty days, citing College Watercolor Group, Inc. v. William H. Newbauer, Inc.,468 Pa. 103, 119, 360 A.2d 200, 208 (1976). The trial court held that, under Rule 903 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 903, Contractor had until December 17, 2011 to file his appeal and he did not; thus, any issues related to the Contempt Petition were waived for failing to file a timely appeal. The trial court held that Contractor waited more than 400 days to file and seek relief through the Petition to Open, which the trial court concluded was procedurally improper. Nevertheless, the trial court addressed the issue of whether the Contempt Petition was properly served. Citing Pennsylvania Rule of Civil Procedure 440, Pa. R.C.P. No. 440, which governs service of legal papers other than original process, the trial court held that the Bureau sent the Contempt Petition to the ...


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