Pаtrick J. and Casey L. Steckman (the Steckmans) appeal from an order of the Court of Common Pleas of Beaver County of May 8, 1998 that found them in contempt of the trial court’s order of April 10, 1995, enjoining them from selling grave markers and monuments at their propеrty in the Borough of Beaver (Borough), and required them to pay $9,592.50 to the Borough for attorney’s fees. The Steckmans question whether the trial court erred or abused its discretion in finding them to be in contempt of the April 1995 order when there was no evidence that they acted in willful disobedience or disregard of that order and whether the trial court erred or abused its discretion in imposing attorney’s fees sanctions against them.
The Steckmans were interested in purchasing property at 1198 Third Street in the Borough for the purрose of conducting a
On May 7, 1993, the Borough issued a zoning enforcement notice, and on May 10 it filed a complaint in equity seeking injunctive relief. The trial court ultimately concluded that the Steckmans’ failure to appeal the revocation notice to the zoning hearing board rendered the revocation final and not subject to collateral attack. On April 10, 1995 it issued an order stating: “Defendants are hereby enjoined from conducting the business of selling monuments and markers on the property located at 1198 Third Street, Beaver, Pennsylvania.” The Steckmans appealed from that order, and this Court affirmed, holding that the failure to appeal from a zoning revocation under applicable provisions of the Pennsylvania Municipalities Planning Code, Act of July 31,1968, P.L. 805, as amended, 53 P.S. §§ 10101 — 11202, bars any claim of a vested right to a permit. Steckman v. Borough of Beaver (Pa.Cmwlth., No. 1169 C.D.1995, filed December 21, 1995).
At the hearing before the trial court on the petition for contempt, the Steckmans’ counsel in the original litigation, William Buchko, Esq., testified that he invited the Borough’s Solicitor, John J. Petrush, Esq., and its Zoning Officer, David L. Hagen, to a meeting with the Steckmans at the subject property on January 3, 1996, to discuss what business they could conduct there in compliance with the zoning ordinance and the court orders. Patrick and Casey Steckman and Buchko testified that at the meeting the Steckmans described to Hagen аnd Petrush the entire process of a transaction to acquire a grave marker. All three recalled that Petrush and Hagen regarded activities other than receiving payment as not constituting “sales” of grave markers. The Steckmans’ Exhibits A and B were the сover sheet and the attachment that Buchko sent to Petrush on February 8,1996, which was described as proposed language for a zoning application.
Petrush testified that he recalled going over the provisions of the zoning ordinance at the meeting and stating that he thought it permitted use for administrative aspects of the business, such as accounting, billing and payroll but that the Steckman’s could not sell, solicit or take orders for grave markers from that location. He recalled receiving a facsimilе transmission from Buchko, which he stated he passed on to Hagen as the zoning officer. Neither Buchko nor the Steckmans received any response to that message. Hagen did not testify. The trial court determined that the Steckmans’ actions were in violation of the April 1995 order and directed the Steckmans to pay the Borough $9,592.50, which was described as the amount of attorney’s fees that the Borough incurred in the original litigation and in connection with the contempt petition proceeding.
The Steckmans acknowledge that a violation of an order may be inadvertent or in good faith and still give risе to a holding of civil contempt, citing Thompson v. Johnson,
The Borough responds that it presented evidence of a customer who selected a monument at the Beaver office and signed a contract there, the Steckmans’ Yellow Pages advertisement, a group of 95 contracts that were made аt the Beaver office, newspaper advertisements and the testimony of Petrush concerning the January 1996 meeting. The trial court’s ruling, the Borough argues, implicitly found a lack of good faith in the Steckmans’ continuing business as before with the only difference that thе initial payment was not accepted on the premises. The Borough cites Messmore’s Estate,
The Court notes that the Supreme Court considered a very similar case in Township of South Strabane v. Piecknick,
In the present case, the trial court similarly made no precise finding of dilatory, obdurate or vexatious cоnduct on the part of the Steckmans but rather based its award of attorney’s fees solely upon its finding of contempt. Under Township of South Strabane,
In the alternative, the Steckmans argue that the trial court’s award amounted to a punitive sanction for criminal contempt of court and that they were not afforded the procedural protections that accompany a proceeding for criminal contempt. The courts have always been possessed of inherent power to enforce their orders and decrees by imposing sanctions. Brocker v. Brocker,
Here, the trial court acknowledged that the offending conduct had cеased; the Steckmans had moved the sales office. Therefore, the order was not intended to be coercive but rather remedial. If the proceeding were construed to be criminal in nature, the applicable statutory provision would bе Section 4136(a) of the Judicial Code, as amended, 42 Pa.C.S. § 4136(a), relating to the rights of persons charged with indirect criminal contempt for violation of a restraining order or injunction. Because the proceedings before the trial court for the reasons discussed were in the nature of civil contempt, the Steckmans were not entitled to the benefit of the criminal contempt procedures provided for in Section 4136(a).
ORDER
AND NOW, this 13th day of April, 1999, the order of the Court of Common Pleas of Beaver County is vacated, and this case is remanded for further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
Notes
. The Attachment states in pertinent part:
Applicants, in one-half of the streеt floor of the premises, propose to provide to the public a service of and related to the selection of monuments and grave markers. This will be done through a display of monument samples on the rear of the lot and through catalogues and computer printout examples. No retail sales will be conducted on the premises and no orders for monuments will be taken on the premises. Any sale or orders will be handled at the Ellwood City location of Steckman’s Memorial Studio or through thе mail or home visits.
In addition, applicants propose to utilize the premises as a business office for Steckman’s Memorial Studio, for purposes of record keeping, accounting, accounts receivable and payable, and relаted matters.
N.T., December 5, 1997, Defendant’s Exhibit B.
. Appellate review of an order for contempt is limited to determining whether the trial court abused its discretion or committed an error of
. The Steckmans also argue that the trial court erred in assessing attorney’s fees incurred by the Borough during the entire course of the underlying litigation as well as those incurred for the contempt petition proceedings. The Borough asserts that this matter was not stated or implied in the statement of matters complained of on appeal that the Stеckmans provided to the trial court and hence was waived. Although the Court has found no decision awarding fees relating to other than the contumacious conduct, that is, the fees incurred in pursuing a petition for contempt, this question need not be decided at this juncture. Upon remand the trial court may wish to reconsider its ruling on this point.