2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-29-2010

Peter Egnotovich v. Greenfield Twp Sewer

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1055

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Recommended Citation

"Peter Egnotovich v. Greenfield Twp Sewer" (2010). 2010 Decisions. Paper 1437.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/1437
DLD-176 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1055

___________

PETER R. EGNOTOVICH; STELLA EGNOTOVICH, 

and their marital community,

 Appellants

v.

GREENFIELD TOWNSHIP SEWER AUTHORITY, et al;

PAYNE CONSTRUCTION CO., et al; PENN EAST ENGR., et 

al; GREENFIELD TOWNSHIP, et al.; FRATERNAL ORDER

OF POLICE; HARRY T. COLEMAN; ABRAHAMSEN,

MORAN & CONABOY; JAMES MUNLEY; FEDERAL

JUDGE VANASKIE; EDWIN KOSIK; FEDERAL JUDGE

CONABOY; BRUCE EVANS; RICHARD JULIA; TERRANCE

NEALON; WILLIAM P. NEALON; PATRICIA CORBETT;

CARMEN MINORA; S. JOHN COTTONE; ERNIE PREATE,

Jr.; PAUL WALKER; PETER POVANDA; GERALD RUSEK;

LORRAINE RUSEK; ESTATE OF JOSEPH RUSEK; PAUL

FORTUNER; JOHN CERRA; JAMES GARDNER COLLINS;

DOROTHY RUSEK TROTTER; CARLON M. O'MALLEY,

JR.; LACKAWANNA COUNTY POLITICAL SUBDIVISION

OF THE COMMONWEALTH OF PENNSYLVANIA; THE

COMMONWEALTH OF PENNSYLVANIA; TODD

O'MALLEY; JERRY LANGAN; ANDY JARBOLA; TOM

DUBAS; DETECTIVE ROBERT MAZZONI; PAUL

MAZZONI; ED RENDELL; GENE TALERICO; MARY

MCANDREW; AMELIA NICOLE; WANDA HALLADAY;

LAURA BOYNARSKY; WALTER CASPER, JR.;

LACKAWANNA CO. COURT ADMINISTRATOR, et al;

JOHN DOES 1-150; ESQ. JOHN Q. DURKIN; DAVID

KLEPADLO; CARL SHINER; PENNSYLVANIA STATE

POLICE; JOSEPH KOSIEROWSKI, Trooper; TROOPER

BOOS; JOSEPH MINELLI; MICHAEL BARRESSE, ESQ.;

CHESTER T. HARHUT; GEORGE BELL, JR.; JOSEPH

SLEBODNIK; DOUGLAS CLARK; KEVIN O'HARA
 The Egnotoviches refused to pay sewer fees and a collection action was commenced

1

against them by the Sewer Authority. The Egnotoviches maintained they never signed a

sewer easement and disputed the authenticity of Peter Egnotovich’s signature on a

document titled “Easement and Right-of-Way Agreement” that was executed over twenty

2

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 05-cv-01818)

District Judge: Honorable John E. Jones, III

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) 

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

April 2 2, 2010

Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges

(Opinion filed: April 29, 2010)

 

 OPINION

 

PER CURIAM

Appellants Peter and Stella Egnotovich commenced a civil action pro se in United

States District Court for the Middle District of Pennsylvania, seeking money damages and

declaratory and injunctive relief from the Greenfield Township Sewer Authority, among

other defendants. The action, the latest chapter in a decades-long saga of litigation, was

dismissed under Federal Rule of Civil Procedure 12(b)(6) and the defendants moved for

Rule 11, Fed. R. Civ. Pro., sanctions. On September 14, 2006, the District Court 1
years ago.

 We also granted the Sewer Authority’s Rule 38, Fed. R. App. Pro., motion for 2

sanctions on appeal in the amount of $1,500.

3

awarded Rule 11 sanctions in the form of attorneys fees to Greenfield Township in the

amount of $5,034.34. The Egnotoviches appealed, and we dismissed the appeal for lack

of appellate jurisdiction as premature. On July 7, 2007, the District Court held the

Egnotoviches in contempt for failure to pay the sanctions and ordered them to pay the full

amount within sixty days. The Egnotoviches appealed, and we affirmed the District

Court’s orders dismissing the amended complaint and the Rule 11 order imposing

sanctions in the amount of $5,034.34. See Egnotovich v. Greenfield Township Sewer

Auth., 304 Fed. Appx. 94, 98 (3d Cir. 2008) (“The District Court properly found that the

Egnotoviches filed the lawsuit in bad faith and for the purpose of harassment, and that

they resorted to federal court in an impermissible attempt to collaterally attack validly

obtained state court judgments.”).2

About eight months after we affirmed, the Sewer Authority moved in the district

court for enforcement of the Rule 11 sanctions order, contending that the Egnotoviches

had failed to pay any portion of the $5,034.34. The District Court held a hearing on the

enforcement motion at which the Egnotoviches appeared. The court observed that the

Egnotoviches had not even attempted to make payments on the Rule 11 sanctions order. 

N.T., 12/2/09, at 4-5. Mrs. Egnotovich conceded that point, see id. at 5, and then

improperly tried to reargue the merits of the underlying easement dispute, see Halderman
4

v. Pennhurst State School & Hospital, 673 F.2d 628, 637 (3d Cir. 1982) (it is settled that

underlying order may not be called into question in post-judgment civil contempt

proceeding).

At the conclusion of the hearing, the Egnotoviches were found in contempt. See

N.T., 12/2/09, at 17-18. They were given the opportunity to purge themselves of

contempt by (1) making a payment of $150.00 by January 13, 2010, see id. at 13-14; and

(2) agreeing to seek financing from a commercial lender by December 31, 2009 in order

to pay the remainder of the $5,034.34, see id. at 14. The Egnotoviches stated at the

hearing that their home is worth $100,000, and they have a home equity loan of $33,000,

which is current. N.T., 12/2/09, at 7. Accordingly, the District Court reasoned that,

because they have equity in their home, they should be able to finance a loan in the

amount of $5,000. If they were unable to obtain financing, they would have to give a

mortgage on their property to the Sewer Authority, see id. at 14.

The District Court issued an order, entered on December 3, 2009, granting the

motion for enforcement and finding the Egnotoviches in contempt of the September, 2006

Order awarding Rule 11 sanctions in the amount of $5,034.34. In accordance with an

agreement reached during the enforcement hearing, the Egnotoviches would purge

themselves of contempt by: (1) paying $150.00 by January 13, 2010; and (2) “expressly

follow[ing] the agreement made on the record at the December 2, 2009 hearing,” or else

they would have to surrender to the custody of the U.S. Marshal at a time and place to be
 Where a contemnor complies with all aspects of a contempt order and thus purges 3

himself of contempt, the contempt order is moot and unreviewable. McDonald’s Corp. v.

Victory Investments, 727 F.2d 82, 85 (3d Cir. 1984). Following taking this appeal, the

Egnotoviches made the $150.00 payment, according to items subsequently submitted in

the district court, but there is no indication that they have either obtained financing to

cover the remainder of the sanctions or given the Sewer Authority a security interest in

their property. Accordingly, it does not appear that the appeal is moot, and the parties

have not advised us that the appeal is moot.

5

determined. The District Court also denied a motion for appointment of counsel

previously filed by the Egnotoviches. The Egnotoviches filed a notice of appeal from the

orders finding them in contempt and denying them counsel. 

Our Clerk granted them leave to appeal in forma pauperis and advised that the

appeal was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary

affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. The Egnotoviches were invited to

submit a written response, but they have not done so. They have filed a motion for

appointment of counsel on appeal. The Sewer Authority has filed a Rule 38, Fed. R. App.

Pro., motion for damages and costs, seeking attorneys fees in the amount of $1,500.00.

We will summarily affirm the orders of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. We have

jurisdiction over the post-judgment orders under 28 U.S.C. § 1291. A civil contempt 3

order is designed to be coercive; the contemnor need only comply with the order to avoid

being jailed. See Chadwick v. Janecka, 312 F.3d 597, 608 (3d Cir. 2002) (citing

Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441-42 (1911)). Accordingly, a
party’s complete financial inability to comply with an order to pay sanctions is a defense

to a charge of civil contempt. See Hicks v. Feiock, 485 U.S. 624, 638 n.9 (1988). The

alleged contemnor bears the burden of producing evidence of his inability to comply with

the sanctions order. See United States v. Rylander, 460 U.S. 752, 757 (1983). 

The Egnotoviches failed to show a complete inability to pay the sanctions. The

record establishes that they have sufficient equity in their home to be able to pay the

sanction in installments, they are current on their existing home equity loan, and an

installment plan was acceptable to the Sewer Authority. The Egnotoviches had the

burden of coming forward in the contempt proceeding with evidence that they made

reasonable efforts to comply with the sanctions order, see United States v. Millstone

Enterprises, Inc., 864 F.2d 21, 23 (3d Cir. 1988) (citing Halderman, 864 F.2d at 23), but

they made no such effort, and thus a finding that they were in contempt was proper. The

District Court properly determined that they were not entitled to appointment of counsel.

For the foregoing reasons, we will summarily affirm the orders of the District

Court finding the Egnotoviches in contempt for failing to pay the Rule 11 sanctions and

denying their motion for appointment of counsel. The appellants’ motion for appointment

of counsel on appeal and the Sewer Authority’s Rule 38 motion are both denied. 

6