Summary
The Pennsylvania Commonwealth Court addresses a civil contempt purge and sanctions proceeding arising from the respondent’s failure to permanently close underground storage tanks as required by the Storage Tank and Spill Prevention Act, Department of Environmental Protection orders, and prior court orders. The opinion considers continuing contempt, the respondent’s ability to comply, due process protections associated with potential incarceration, and whether monetary fines and further sanctions are appropriate.
Topics
Practice areas
Questions Presented
- Whether the respondent corporation remained in civil contempt for failing to comply with the Court’s August 15, 2024 Contempt Order.
- Whether the Department proved by a preponderance of the evidence that the corporation had notice of the Contempt Order, acted volitionally in failing to comply, and acted with wrongful intent.
- Whether the corporation established inability to comply with the purge conditions as an affirmative defense.
- Whether the sale of the property containing the underground storage tanks mooted the contempt proceeding.
- Whether the Court could convert the previously imposed $100 daily civil contempt fine into a $25,500 judgment and impose a new purge schedule.
- Whether evidence elicited through Robert J. Fulton, Jr.’s provisional cross-examination of a Department witness should be considered despite Fulton’s lack of authority to represent the corporation.
Holdings
- The corporation remained in civil contempt because it failed to permanently close the underground storage tanks, complete the required site assessment, amend the tank registration, and file the required closure report as directed by the Court’s Contempt Order.
- The corporation failed to establish its affirmative defense that it was presently unable to comply with the purge conditions.
- The sale of the property did not moot the contempt proceeding because Fulton remained the owner or operator of the tanks and the corporation remained responsible for their closure.
- The Court converted the previously imposed $100 daily civil contempt fines, totaling $25,500, into a judgment against the corporation and established a new purge schedule, but imposed no additional sanction and denied incarceration of Fulton at that time.
- The Court sustained the Department’s objection and did not consider evidence Fulton elicited during his cross-examination of the Department witness concerning the corporation’s ability to comply, but declined to strike that testimony from the record.
Key quotations
“The complaining party must prove 1) the contemnor had notice of the specific order it is alleged to have disobeyed; 2) the act constituting the contemnor’s violation was volitional; and 3) the contemnor acted with wrongful intent.” (34)
“At this time, however, the Court finds Fulton’s testimony alone lacked pertinent credibility and did not amount to sufficient evidence to establish the affirmative defense of Corporate Respondent’s inability to comply.” (40)
Factual background
The respondent operated an automobile service center at 1324 Washington Lane in Philadelphia where three underground storage tanks had been registered as temporarily out of service in 2000. The tanks were not permanently closed within the required three-year period, and the Department issued notices and a 2019 administrative order requiring closure. Despite a 2023 court-approved stipulation and an August 2024 contempt order requiring closure, the tanks remained in the ground and the required closure reports and amended registration were not filed. The respondent’s principal, Robert J. Fulton, Jr., claimed the corporation lacked sufficient funds to comply, but the Court found his testimony insufficiently credible and unsupported by documentary financial evidence.
Procedural history
The Department issued a 2019 administrative order requiring permanent closure of three underground storage tanks. The corporation did not appeal or comply with that order. After the Department filed a judicial enforcement petition, the parties entered a stipulation that the Court adopted in July 2023. The Court adjudicated the corporation in civil contempt in August 2024, imposed a $100 daily fine, and established purge conditions. Following the corporation’s continued noncompliance, the Department filed a certification and purge/sanctions petition. After an August 19, 2025 hearing, the Court held the corporation remained in contempt, converted $25,500 in unpaid fines into a judgment, established a new purge schedule, and denied incarceration at that time.
Remand instructions
No remand was ordered. The Court retained jurisdiction, established purge deadlines requiring permanent tank closure and related reporting, directed the Department to certify compliance, and authorized the Department to seek discovery, a further sanctions hearing, or another lawful remedy if the corporation again failed to purge contempt.