Allegheny County Sportsmen's League v. City of Pittsburgh ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Allegheny County Sportsmen’s :
League, :
Appellant :
:
v. :
: No. 1810 C.D. 2019
City of Pittsburgh : Argued: February 7, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: March 3, 2023
The Allegheny County Sportsmen’s League (League) appeals from a
November 19, 2019 order of the Court of Common Pleas of Allegheny County (trial
court) that dismissed, as moot, the League’s contempt petition against the City of
Pittsburgh (City). Upon review, we affirm the dismissal of the contempt petition,
albeit on different grounds.
I. Background
In January 1994, the League filed a civil action against the City in the
trial court, contending that a recently enacted firearms ordinance was preempted by
Article I, Section 21 of the Pennsylvania Constitution1 and Section 6120 of the
Pennsylvania Uniform Firearms Act of 1995 (Uniform Firearms Act),2 18 Pa.C.S.
§ 6120.3 Allegheny Cnty. Sportsmen’s League v. City of Pittsburgh (C.C.P. Alleghny
1
“The right of the citizens to bear arms in defense of themselves and the State shall not be
questioned.” PA. CONST. art. I, § 21.
2
18 Pa.C.S. §§ 6101-6128.
3
§ 6120. Limitation on the regulation of firearms and ammunition.
(a) General rule. — No county, municipality or township
may in any manner regulate the lawful ownership, possession,
transfer or transportation of firearms, ammunition or ammunition
components when carried or transported for purposes not prohibited
by the laws of this Commonwealth.
(a.1) No right of action.
(1) No political subdivision may bring or
maintain an action at law or in equity against any
firearms or ammunition manufacturer, trade
association or dealer for damages, abatement,
injunctive relief or any other relief or remedy
resulting from or relating to either the lawful design
or manufacture of firearms or ammunition or the
lawful marketing or sale of firearms or ammunition
to the public.
(2) Nothing in this subsection shall be
construed to prohibit a political subdivision from
bringing or maintaining an action against a firearms
or ammunition manufacturer or dealer for breach of
contract or warranty as to firearms or ammunition
purchased by the political subdivision.
(a.2) Relief. — [Declared unconstitutional by Leach v.
Commonwealth, 141 A.3d 426 . . . (Pa. 2016)]
[As enacted, this provision stated:
A person adversely affected by an ordinance,
a resolution, regulation, rule, practice or any other
action promulgated or enforced by a county,
municipality or township prohibited under
subsection (a) or 53 Pa.C.S. Section 2962(g)
(relating to limitation on municipal powers) may
2
Cnty. No. 94-001499, filed Dec. 19, 2019) (Trial Ct. Dec.), slip op. at 1. In February
1995, the parties entered into a Settlement Agreement in the form of a Stipulation
that was confirmed by the trial court. Id., slip op. at 1-2. The Settlement Agreement
provided:
seek declaratory or injunctive relief and actual
damages in an appropriate court.]
(a.3) Reasonable expenses. — [Declared unconstitutional
by Leach v. Commonwealth, 141 A.3d 426 . . . (Pa. 2016)]
[As enacted, this provision stated:
A court shall award reasonable expenses to a
person adversely affected in an action under
subsection (a.2) for any of the following:
(1) A final determination by
the court is granted in favor of the
person adversely affected.
(2) The regulation in question
is rescinded, repealed or otherwise
abrogated after suit has been filed
under subsection (a.2) but before the
final determination by the court.]
(b) Definitions. —
As used in this section, the following words and phrases
shall have the meanings given to them in this subsection:
“Dealer.” —The term shall include any person engaged in
the business of selling at wholesale or retail a firearm or
ammunition.
“Firearms.” —This term shall have the meaning given to it
in section 5515 (relating to prohibiting of paramilitary training) but
shall not include air rifles as that term is defined in section 6304
(relating to sale and use of air rifles).
“Political subdivision.” —The term shall include any home
rule charter municipality, county, city, borough, incorporated town,
township or school district.
18 Pa.C.S. § 6120.
3
WHEREAS: The [p]laintiffs sought to enjoin
enforcement of Ordinance Number 30 of 1993 because it
was alleged to have been preempted by state law; and,
WHEREAS: House Bill 185 was passed by both
houses of the Legislature and enacted on October 4, 1994,
over the Governor’s Veto, as Act 85 of 1994; and,
WHEREAS: Section 6120 of Act 85 of 1994
reiterates, reaffirms, and codifies the state preemption of
local ordinances and local action regarding firearms
generally; and,
WHEREAS: All parties to this case are interested
in compliance with Pennsylvania law;
THEREFORE: the plaintiffs and defendant to this
court case do stipulate and agree as set forth above and as
follows:
1. The plaintiffs discontinue and
withdraw the complaint which is the subject
of this litigation;
2. The parties agree to abide by and
adhere to Pennsylvania law.
Id., slip op. at 2 (emphasis added).
Nearly a quarter-century later, in April 2019, the City enacted three
ordinances, Numbers 2018-1218, 2018-1219, and 2018-1220 (2019 Ordinances),
seeking to regulate the use of certain firearms and related accessories in the City.
Trial Ct. Dec., slip op. at 2. As a result, the League filed a petition to enforce the
1995 Settlement Agreement through a contempt order. The League asserted that by
enacting the 2019 Ordinances, which the League argued were not authorized by law,
the City failed to abide by and adhere to Pennsylvania law as required by the
Settlement Agreement. Reproduced Record (RR) at 22a-25a.
4
In October 2019, the trial court issued an opinion and order in a separate
action, holding that the 2019 Ordinances were preempted by state legislation and
were void and unenforceable.4 Trial Ct. Dec., slip op. at 3. As the City had delayed
enforcing the 2019 Ordinances pending the outcome of cases challenging their
validity, the trial court concluded the League’s petition for contempt was moot in
light of the October 2019 opinion and order. Id. Accordingly, the trial court
dismissed the League’s petition for contempt. Id. The League appealed the
dismissal to this Court.
II. Issues on Appeal
On appeal, the League asserts that the trial court abused its discretion,
committed an error of law, or violated the League’s constitutional rights5 by
dismissing the contempt petition as moot. The League avers that during a status
conference held in chambers, the trial court stated it would not deem the League’s
4
The trial court’s opinion does not identify the action in which it held the ordinances to be
preempted.
5
Our review of a trial court’s contempt order is limited to determining whether the trial
court abused its discretion or committed an error of law. Commonwealth v. Lubisky, 88 A.3d 328,
332 n.5 (Pa. Cmwlth. 2014) (citing Twp. of Lycoming v. Shannon, 780 A.2d 835, 838 n.1 (Pa.
Cmwlth. 2001)). We reject the League’s suggestion that consideration of an appellant’s
constitutional rights as a part of the scope or standard of review regarding a contempt order is
“consistent with the Pennsylvania Supreme Court’s holding in Leon E. Wintermyer, Inc. v.
[Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478, 493 (Pa.] 2002)” (Newman, J.,
concurring). League Br. at 2 n.1. First, as noted, the cited portion of Leon E. Wintermyer, a
workers’ compensation appeal, was part of Justice Newman’s concurring opinion; therefore, the
League’s description of it as our Supreme Court’s “holding” in the case is incorrect. Moreover,
even if Justice Newman had been writing for the Court’s majority, her passing reference to
constitutional rights was dictum, at best. The purport of her opinion was that “there is no capricious
disregard standard of review of agency decisions.” Id. In that context, Justice Newman
commented that “[i]t is only in performing a substantial evidence analysis that the appellate court,
inter alia, looks to see that . . . constitutional rights were protected . . . .” Id. Nothing in Justice
Newman’s concurring opinion relates to review of a contempt finding.
5
contempt petition moot on the basis of its decision in another case.6 In addition, the
League states that the trial court’s decisions in other cases challenging the 2019
Ordinances address only whether the 2019 Ordinances were unlawful, not whether
the City violated the Settlement Agreement by enacting them; accordingly, the
League insists its claim is not moot and its contempt petition should be decided,
including its related request for “further declaratory and injunctive relief, sanctions,
attorney fees and costs” for requiring compliance with the Settlement Agreement
and the trial court’s related order. League Reply Br. at 2.
In response, the City argues that the Settlement Agreement’s provision
stating that the parties agreed to abide by and adhere to Pennsylvania law is too
vague to support a contempt petition. The League disputes that contention as a
matter of Pennsylvania law and also asserts that the City is estopped from
challenging the enforceability of the Settlement Agreement.
III. Discussion
A. Mootness
The doctrine of mootness stems from the requirement that an actual
case or controversy must exist at all stages of review, not merely when an action is
6
In response to the City’s assertion of mootness, the League claims the trial court stated in
chambers that it would not hold the contempt petition moot based on its decision in other cases.
League Br. at 17 n.15. The League expressly acknowledges that this alleged statement by the trial
court is not part of the record before this Court. Id. As it is not in the record, we cannot consider
it. See Pa.R.A.P. 1921 (stating, “[t]he original papers and exhibits filed in the lower court, paper
copies of legal papers filed with the prothonotary by means of electronic filing, the transcript of
proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower
court shall constitute the record on appeal in all cases”); Pa.R.A.P. 1921, Note (stating that an
appellate court may consider only facts in the record on appeal); Tennyson v. Zoning Hearing Bd.
of W. Bradford Twp., 952 A.2d 739 (Pa. Cmwlth. 2008) (stating that assertions outside the record
may not be considered on appeal).
6
commenced. Commonwealth v. Packer Twp., 60 A.3d 189, 192 (Pa. Cmwlth. 2012)
(quoting Pap’s A.M. v. City of Erie, 812 A.2d 591, 600 (Pa. 2002)). Mootness arises
when changes in the facts or law after commencement of an action “deprive the
litigant of the necessary stake in the outcome.” Packer Twp., 60 A.3d at 192 (quoting
In re Gross, 382 A.2d 116, 119 (Pa. 1978)) (additional quotation marks omitted).
Here, the trial court’s opinion does not identify the action or actions in
which the trial court purportedly found the 2019 Ordinances were preempted, nor
does it indicate the current status of any appeals that may be pending from any such
decisions. Accordingly, this Court lacks sufficient information to consider the
mootness issue.
B. Enforcement of the Settlement Agreement through Contempt Finding
1. “Obey the Law” Provisions
Regardless of our inability to evaluate the trial court’s reasoning
concerning mootness, we nonetheless affirm the trial court’s order on the alternative
basis7 that the provision of the Settlement Agreement requiring the parties to abide
by and adhere to Pennsylvania law cannot, as a matter of law, form the basis for a
finding of contempt. The City argues that the Settlement Agreement provision
requiring the parties to “to abide by and adhere to Pennsylvania law,” Trial Ct. Dec.,
slip op. at 2, is merely an “obey the law” provision, which state and federal courts,
including the United States Supreme Court, have uniformly declared are not subject
to a finding of contempt. City Br. at 21-31. Notwithstanding the League’s attack
7
“This Court may affirm on other grounds where grounds for affirmance exist.” Bonifate
v. Ringgold Sch. Dist., 961 A.2d 246, 253 n.2 (Pa. Cmwlth. 2008) (citing Belitskus v. Hamlin Twp.,
764 A.2d 669 (Pa. Cmwlth. 2000)).
7
on the City’s position as “another mind boggling wonder of the world,” League
Reply Br.8 at 13, we find the City’s argument persuasive.
As the Superior Court has explained:
In Pennsylvania, there are four elements for a finding of
civil contempt when an individual fails to obey a court
order[:]
1. The [o]rder is definite, clear and specific;
2. The contemnor had notice of the [o]rder;
3. The contemnor’s action was willful; and
4. The contemnor committed the action with a wrongful
intent.
K.M.G. v. H.M.W., 171 A.3d 839, 846 (Pa. Super. 2017) (emphasis added). This
Court has expounded:
[A] mere showing of noncompliance with a court order, or
even misconduct, is never sufficient alone to prove civil
contempt.
To be punished for contempt, a party must not only have
violated a court order, but that order must have been
“definite, clear, and specific – leaving no doubt or
uncertainty in the mind of the contemnor of the prohibited
conduct.”
. . . A person may not be held in contempt of court for
failing to obey an order that is too vague or that cannot be
enforced.
8
The League’s principal brief focuses on why the League believes the City violated
Pennsylvania law by enacting the 2019 Ordinances. The League’s reply brief responds to the
City’s arguments against enforcement of the Settlement Agreement through a contempt petition.
8
Bielby v. Zoning Bd. of Adjustment (Pa. Cmwlth., No. 1441 C.D. 2019, filed April
9, 2021),9 slip op. at 12 (quoting In re Contempt of Cullen, 849 A.2d 1207, 1210-11
(Pa. Super. 2004)) (emphasis added).
Here, the City contends the Settlement Agreement’s provision stating
that “[t]he parties agree to abide by and adhere to Pennsylvania law,” Trial Ct. Dec.,
slip op. at 2, is too vague to support a finding of contempt. We agree.
Neither party cites any Pennsylvania state court decision directly on
point, and this Court is aware of none. However, as the City correctly points out,
numerous federal courts, as well as state courts in other jurisdictions that have
considered this issue, have concluded that “obey the law” provisions in court orders
are too vague to support a finding of contempt.
This principle is a venerable one. Early in the twentieth century,
Supreme Court Justice Oliver Wendell Holmes observed that courts “are bound by
the first principles of justice not to sanction a decree so vague as to put the whole
conduct of the defendants’ business at the peril of a summons for contempt. We
cannot issue a general injunction against all possible breaches of the law.” Swift &
Co. v. U.S., 196 U.S. 375, 396 (1905) (Holmes, J.) (emphasis added). Federal courts
have routinely adhered to this rule. See, e.g., Louis W. Epstein Fam. P’ship v. KMart
Corp., 13 F.3d 762, 771 (3d Cir. 1994) (stating that “[b]road, non-specific language
that merely enjoins a party to obey the law or comply with an agreement . . . does
not give the restrained party fair notice of what conduct will risk contempt . . . . One
party should not be allowed to hold the club of contempt forever over the other’s
head.”) (quoting Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d
9This opinion is cited as persuasive pursuant to Section 414(a) of this Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a).
9
665, 669 (8th Cir. 1987)) (additional quotation marks omitted); Belitskus v.
Pizzingrilli, 343 F.3d 632, 650 (3d Cir. 2003) (striking language from an order that
did “nothing more than order the Commonwealth to obey the law”) (citing Pub. Int.
Rsch. Grp. of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 83 (3d Cir.
1990) (stating that “[o]verbroad language in an injunction that essentially orders a
party to obey the law in the future may be struck from the order”)); Sec. Exch.
Comm’n v. Warren, 583 F.2d 115, 121 (3d Cir. 1978) (affirming dissolution of
injunction that “merely required defendants ‘to obey the law’ in the future . . . a
requirement with which they must comply regardless of the injunction”); Sixth Angel
Shepherd Rescue, Inc. v. West, 477 F. App’x 903, 909 (3d Cir. 2012) (stating that
“appellate courts will not countenance injunctions that merely require someone to
‘obey the law’”) (citation omitted).
Federal courts often invoke this principle in conjunction with Rule
65(d)(1) of the Federal Rules of Civil Procedure, which provides:
(d) Contents and Scope of Every Injunction and
Restraining Order.
(1) Contents. Every order granting an injunction
and every restraining order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail – and
not by referring to the complaint or
other document – the act or acts
restrained or required.
Fed. R. Civ. P. 65(d)(1) (emphasis added); see Pub. Int. Rsch. Grp., 913 F.2d at 83
(citing and applying Fed. R. Civ. P. 65(d)(1)). The City argues that in requiring the
terms of an injunction to be specific and described in reasonable detail, Rule 65(d)(1)
10
is analogous to the specificity requirement to support a contempt finding under
Pennsylvania law. We agree with the City that federal precedents are analogous and
persuasive in that regard.
We reject the League’s attempt to distinguish the federal decisions as
relating only to court orders rather than contracts. First, the Settlement Agreement
here was confirmed in a court order. Indeed, if this case were merely about enforcing
a contract as the League suggests, there would be no basis for seeking a contempt
order in the first instance.10 It is a violation of the court’s order confirming an
agreement, not a violation of the agreement itself, that may give rise to a finding of
contempt. Moreover, as set forth above, in Louis W. Epstein, a federal appeals court
expressly observed that “[b]road, non-specific language that merely enjoins a party
to obey the law or comply with an agreement . . . does not give the restrained party
fair notice of what conduct will risk contempt . . . .” 13 F.3d at 771 (emphasis
added). Accordingly, we conclude that, for purposes of the specificity required to
support a finding of contempt, it does not matter whether the court’s order is based
on an agreement by the parties.
For these reasons, we conclude that a contempt order cannot be based
on an order that merely requires a party to obey the law. Therefore, the provision of
10
The League avers that the Settlement Agreement was submitted to the trial court for an
order “at the request of the [p]arties so that it would be enforceable for purposes of future
contempt.” League Reply Br. at 20. The Settlement Agreement, as set forth in the Stipulation and
the trial court’s order, contained no such statement of purpose. See supra at 3-4. Moreover, the
League cites to nothing in the record supporting its averment of the parties’ alleged purpose in
having the Settlement Agreement approved by the trial court. Apparently recognizing the absence
of record citations or support for its statement, the League adds a footnote positing that “[i]f there
was no intent by the [p]arties for the [Settlement] Agreement and [trial c]ourt [o]rder to be
enforceable, the [p]arties would have merely submitted a Praecipe to Settle/Discontinue the
underlying litigation.” League Reply Br. at 20 n.22. This speculative averment is equally
unsupported by the trial court’s order or any record citation.
11
the Settlement Agreement in which the parties simply agree to abide by and adhere
to Pennsylvania law cannot form the basis for a finding of contempt.
2. Laches, Public Reliance, and Estoppel
The League argues that, even assuming the City’s argument has merit,
the doctrines of laches, public reliance, and “contractual/equitable” and judicial
estoppel preclude the City from challenging the enforceability of the Settlement
Agreement after 24 years.11 League Reply Br. at 17. These contentions are without
merit. First, the City is not asserting a challenge to the Settlement Agreement’s
enforceability generally; rather, it is challenging the League’s ability to enforce the
Settlement Agreement through a contempt petition. Moreover, to the extent that
enforceability is at issue in relation to a contempt proceeding, laches, public reliance,
and estoppel are inapplicable here.
Laches is an equitable defense; as such, it relates only to a prejudicial
delay by the moving party. See Stilp v. Hafer, 718 A.2d 290, 292 (Pa. 1998)
11
At oral argument, counsel for the League also suggested the City had waived its
vagueness/unenforceability argument by raising it for the first time in this appeal. However, the
League did not address this purported waiver in its briefs before this Court. The only mention of
waiver appears in the League’s reply brief, in the context of its assertion of laches, public reliance,
and estoppel; and that asserted waiver relates solely to the City’s failure to raise its own challenge
to enforceability during the 24 years between the trial court’s confirmation of the stipulated
Settlement Agreement and the League’s contempt petition in this action. See League Reply Br. at
13. We will not consider any issue not developed in the League’s briefs. See City of Phila. v.
Berman, 863 A.2d 156, 161 n.11 (Pa. Cmwlth. 2004) (finding waiver and refusing to address an
issue not developed in the argument portion of the appellant’s brief) (first citing Singer v. Bureau
of Prof. and Occupational Affairs, State Bd. of Psychology, 633 A.2d 246 (Pa. Cmwlth. 1993); and
then citing Pa. R.A.P. 2119).
Moreover, counsel’s suggestion of waiver is incorrect, inasmuch as the City raised and
argued the vagueness and unenforceability of the Settlement Agreement in its initial response to
the League’s petition for a contempt order in the trial court. See RR at 355a-56a.
12
(explaining that “[l]aches is an equitable doctrine that bars relief when a complaining
party is guilty of want of due diligence in failing to promptly institute an action to
the prejudice of another”) (emphasis added) (citing Sprague v. Casey, 550 A.2d 184,
187 (Pa. 1988)); St. Clair Area Sch. Dist. Bd. of Educ. v. E.I. Assocs., 733 A.2d 677,
681 (Pa. Cmwlth. 1999) (stating that “[l]aches applies when a defendant is so
prejudiced by the passage of time and inexcusable delay that it would be unjust to
allow the plaintiff to assert a claim”) (emphasis added)); Weinberg v.
Commonwealth, 501 A.2d 239, 242 (Pa. 1985) (explaining that “laches is an
affirmative defense”). Thus, the doctrine of laches does not apply to limit one’s
ability to assert a defense of unenforceability in response to an enforcement action.
Accord Smires v. O’Shell, 126 A.3d 383, 393 (Pa. Cmwlth. 2015) (stating that
“[l]aches is an equitable defense. For [petitioners] to use laches as a sword in a legal
action they initiated is confusing at best.”).
Alleged public reliance on the trial court’s order confirming the
Settlement Agreement is likewise not a meritorious basis to preclude the City’s
defense of unenforceability. The concept of public reliance arises only where a
petitioner alleges a procedural defect in the process of enactment of a statute or
ordinance; long delays in raising such procedural challenges, where the challenged
legislation is substantively valid, have prompted courts to decline to “revisit statutes
that are constitutionally sound in substance and that have been relied upon by the
citizens of this Commonwealth.” Sernovitz v. Dershaw, 127 A.3d 783, 792 (Pa.
2015) (citing Stilp, 718 A.2d at 293); see also Messina v. E. Penn Twp., 995 A.2d
517, 533 (Pa. Cmwlth. 2010) (stating that “[a] procedural challenge filed more than
two years after the intended effective date of an ordinance must also be accompanied
by proof sufficient to overcome presumed public reliance on the ordinance”)
13
(citations omitted). This case does not involve any delay in challenging the
procedure by which a statute or ordinance was enacted. Thus, any alleged public
reliance on the Settlement Agreement is immaterial.12
Finally, the League contends that “contractual/equitable and judicial
estoppel doctrines” bar the City from challenging the enforceability of the “obey the
law” provision in the Settlement Agreement. League Reply Br. at 17. We disagree.
The League does not present a developed argument regarding
“contractual/equitable” estoppel; it merely asserts, as a general principle, that a
contracting party is estopped from later asserting that the contract is not binding.
League Reply Br. at 17. We discern no merit in this bald assertion.
In support of its argument, the League cites two decisions. The first,
from the England and Wales Court of Appeals, is not discussed, nor is its purported
relevance to Pennsylvania law, or indeed American law, explained. See League
Reply Br. at 17. The other, Blofsen v. Cutaiar, 333 A.2d 841 (Pa. 1975), did not
involve a contract or a settlement agreement, but rather, a pension fund’s passive
acceptance of contributions from an employee whose pension eligibility the fund
later denied; the League does not explain why that case is relevant here. Because
the League fails to present a developed argument regarding contractual/equitable
estoppel, that argument is waived. See Wirth v. Commonwealth, 95 A.3d 822, 837
12
Further, we note that although the League represents that the public’s alleged reliance
on the Settlement Agreement is “undisputed,” League Reply Br. at 16, the League cites nothing in
the record indicating that the City concedes the public’s alleged reliance on that agreement. The
League apparently bases its assertion of public reliance on a single case, Anderson v. City of
Pittsburgh (Pa. Cmwlth., No. 1753 C.D. 2019, filed May 27, 2020). The League avers that the
plaintiffs in that case relied on the Settlement Agreement in arguing to the trial court that the City
was precluded from enacting the 2019 Ordinances. League Reply Br. at 16 & n.16. The League
cites no authority to support its implicit suggestion that citation of the Settlement Agreement in a
single separate case constitutes public reliance sufficient to bar the City from defending a contempt
petition.
14
(Pa. 2014) (explaining that failure of a brief to develop an issue in a meaningful
fashion capable of review constitutes a waiver; the appellate court will not
“formulate [a]ppellant’s arguments for him”) (first citing Pa.R.A.P. 2119(a); then
quoting Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (internal citations
omitted)).
The doctrine of judicial estoppel is designed to protect the dignity of
the courts; it is invoked to prevent a party from “playing fast and loose with the
court” by taking a legal position in a later case that is inconsistent with a legal
position the same party asserted successfully in an earlier case. Dep’t of Pub.
Welfare v. Workers’ Comp. Appeal Bd. (Overton), 783 A.2d 358, 360 (Pa. Cmwlth.
2001) (explaining that “[t]he courts have held consistently that under the doctrine of
judicial estoppel a party may be prevented from ‘playing fast and loose’ with the
court and abusing the judicial process by changing positions as the moment
requires”) (first citing Koschak v. Redevelopment Auth. of Wilkes-Barre, 758 A.2d
291 (Pa. Cmwlth. 2000); and then citing Trowbridge v. Scranton Artificial Limb Co.,
747 A.2d 862 (Pa. 2000)).
Here, the League cites City of Pittsburgh v. Covey (Pa. Cmwlth., No.
1299 CD 96, filed Apr. 24, 1997), claiming the City argued in that case that a grant
it was seeking did not violate the trial court’s order confirming the Settlement
Agreement. However, the League does not indicate that the City relied on the “obey
the law” provision in the Settlement Agreement to support its argument regarding a
grant in Covey. Moreover, the League does not assert that the City’s alleged
argument was successful in Covey. More fundamentally, Covey was decided
without a published or publicly accessible opinion, and the order announcing the
decision is prefaced by a Notice stating: “THIS UNREPORTED OPINION OF THE
15
COURT SHALL NOT BE CITED IN ANY BRIEF, ARGUMENT OR OPINION,
EXCEPT THAT ANY OPINION FILED IN THE SAME CASE MAY BE CITED
AS REPRESENTING THE LAW OF THAT CASE.” Id. The League is not citing
this Court’s opinion in Covey as the law of this case; nor could it rationally do so.
Accordingly, the League’s citation of Covey in relation to an argument purportedly
asserted in that case is inappropriate here.
For these reasons, we conclude that the City properly challenged the
enforceability of the Settlement Agreement in its defense of the League’s petition
for contempt.
IV. Conclusion
Based on the foregoing discussion, the order of the trial court is
affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
Judge McCullough and Judge Wallace did not participate in the decision in this case.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Allegheny County Sportsmen’s :
League, :
Appellant :
:
v. :
: No. 1810 C.D. 2019
City of Pittsburgh :
ORDER
AND NOW, this 3rd day of March, 2023, the November 19, 2019 order
of the Court of Common Pleas of Allegheny County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge