Ligonier Twp. v. M.S. Nied and P.J. Nied, her husband ~ Appeal of: M.S. Nied, P.J. Nied and Foxley Farm, LLC , 2017 Pa. Commw. LEXIS 173 ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ligonier Township :
: No. 566 C.D. 2016
v. :
: Argued: April 6, 2017
Margaret S. Nied and Paul J. Nied, :
her husband, and Foxley Farm, LLC, :
and Christopher Turner and Carolyn :
Shearer Turner, husband and wife, :
Donald Korb and Carolyn Roberts :
Korb, husband and wife, and David :
Barnhart and Sally Ann Barnhart, :
husband and wife :
:
Appeal of: Margaret S. Nied, Paul J. :
Nied and Foxley Farm, LLC :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY
JUDGE McCULLOUGH FILED: May 4, 2017
Margaret S. Nied, Paul J. Nied, and Foxley Farm, LLC (Defendants)
appeal the March 8, 2016 order of the Court of Common Pleas of Westmoreland
County (trial court), which ordered Defendants to pay counsel fees in the amount of
$53,563.53, pursuant to its August 7, 2015 order finding Defendants in contempt for
violating a consent order (Consent Order) executed by counsel for Defendants,
Ligonier Township (Township), Christopher and Carolyn Turner, Donald and
Carolyn Korb, and David and Sally Ann Barnhart (Intervenors).1
Facts and Procedural History
Margaret and Paul Nied (Nieds) are the owners of an approximately 59
acre tract of realty located at 118 Foxley Farm Lane, Ligonier Township,
Pennsylvania (Property), which contains a single family residence and various out-
buildings. The Property is located in the Township’s R-2 Residential District.
Defendants regularly engaged in commercial activities at the Property that are
generally prohibited in the zoning district, such as: overnight accommodation of
guests; large group activities and gatherings; political fundraising and corporate
events; graduation parties and miscellaneous celebrations; and weddings. The Nieds
conducted these commercial activities through Foxley Farm, LLC.
On September 6, 2012, a Township Zoning Officer issued Defendants a
notice of violation based on their commercial use of the Property. Specifically, the
notice provided that Defendants’ violation was “[c]ommercial use of property and
buildings without proper approvals and permits, failure to obtain Conditional Use
Permit, Occupancy Permit, violation of Agricultural Requirements, Conducting
activities not permitted as Accessory Farm businesses.” (Certified Record (C.R.) at
No. 1, Exhibit 3.)
Defendants subsequently applied for zoning occupancy permits, seeking
authorization to use the Property for: 1) residential and agricultural use; and 2)
accessory farm business, i.e., “agritourism and includes such activities as
1
Intervenors are neighboring and interested thirty-party property owners who were
permitted to intervene in this matter.
2
gardening/farming demonstrations and educational programs, farm-to-table events;
farm stays, family reunions and weddings.” (C.R. at No. 1, Exhibit 4.) The Zoning
Officer issued a permit authorizing the Property’s use for residential and agricultural
purposes. However, Defendants’ application to conduct certain commercial activities
at the Property was denied.
Defendants appealed the Zoning Officer’s decision to the Township
Zoning Hearing Board (Board), alleging that the proposed commercial uses were
permitted as accessory farm business. The Board conducted a hearing and, on
February 26, 2013, issued a decision sustaining the Zoning Officer’s denial of
Defendants’ application to conduct commercial activities at the Property.
On March 14, 2013, the Township filed a complaint in the trial court,
alleging that Defendants continued to engage in unauthorized and unpermitted
commercial activities at the Property. The Township requested that the trial court
order Defendants to immediately cease and desist from conducting commercial
business activities at the Property and enjoin Defendants from performing further
commercial activities at the Property until the necessary permits are issued.
(Reproduced Record (R.R.) at 1a-9a.)
A hearing on the Township’s request for injunction was scheduled for
April 12, 2013. However, that day the parties engaged in negotiations and the trial
court entered the Consent Order, which was executed by counsel for the Township,
Defendants, and Intervenors, and provided that:
1. [The Township’s] request for injunction is granted to
prohibit overnight accommodations and non-approved
commercial activities unless, or until, a certificate of
occupancy is issued to permit said activities, other than
those activities specifically set forth below.
3
2. Pursuant to this order, [Defendants] are permitted to
conduct not more than eleven (11) events at the property,
none of which may exceed two hundred (200) attendees,
and nine (9) of which may not exceed one hundred fifty
(150) attendees. For the purposes of this order, an event is
defined as having ten (10) unrelated attendees. A schedule
of said events will be provided to counsel for all parties no
later than end of business on Monday April 15, 2013.
3. With respect to all events, there will be a third party
security officer employed by Laidlaw Co. on site at all
times to confirm compliance with this order and to manage
traffic and parking. Said officer will be at the expense of
the Defendants and shall be available to communicate with
counsel.
4. All activities related to events will cease no later than
11:00 pm.
5. All parking shall take place along the paved lanes and
within the horse ring area.
6. No music or audio equipment shall be permitted outside
of the structure where the event is being held.
7. Defendants shall seek approval for on-lot sewage
disposal and comply with all Township ordinances and
[Department of Environmental Protection] regulations
relating to sanitary sewage, to the satisfaction of the sewage
enforcement officer, prior to the commencement of any
event.
8. Defendants shall immediately cease any and all
marketing or advertising of weddings, or wedding related
events at the [P]roperty unless or until the issuance of a
certificate of occupancy specifically permitting weddings.
9. Defendants shall immediately cease any and all
marketing or advertising of overnight accommodations of
guests at the [P]roperty unless, or until, the issuance of a
certificate of occupancy specifically permitting overnight
accommodations.
4
10. The Defendants shall withdraw the pending zoning
appeal, Civil Action No. 1335 of 2013, with prejudice, and
agree not to seek approval for weddings or wedding related
events at the site unless a zoning amendment or legislation
is enacted to specifically allow weddings at the site.
11. Starting today, there will be no bookings of overnight
accommodations or non-approved commercial activities,
including weddings or wedding-related events unless or
until a certificate of occupancy is issued specifically
allowing such activities or weddings.
12. Should any enforcement action be brought pursuant to
this order the prevailing party will be entitled to reasonable
attorney’s fees of other parties.
(R.R. at 23a-25a.)
On September 20, 2013, Intervenors, joined by the Township, filed a
Petition for Rule to Show Cause Why Defendants Should Not Be Held in Contempt
of the Consent Order, alleging that Defendants knowingly violated the same because,
inter alia, they conducted unpermitted events at the Property. (R.R. at 27a-33a.)
Defendants filed an answer2 denying they violated the Consent Order,
raising affirmative defenses, and alleging that Intervenors were barred from bringing
the action pursuant to the doctrine of unclean hands because Intervenors had
contacted individuals who contracted with Defendants and attempted to induce them
to cancel their agreements. Additionally, Defendants averred that the events were
permitted accessory events under applicable zoning laws and, similarly, Intervenors
were estopped from pursuing the action because Defendants relied on the Township’s
actions and statements when conducting activities at the Property. (R.R. at 48a-52a.)
2
By order dated November 8, 2013, the trial court issued an order granting Scott Avolio’s
motion to withdraw as counsel for Defendants. (R.R. at 55a.)
5
On April 14, 2014, the trial court conducted a hearing on the issue of
alleged contempt, wherein Ms. Nied and Intervenor Christopher Turner testified.
On April 28, 2014, Defendants filed a Petition for Rule to Show Cause
Why the Consent Order Should Not Be Vacated, alleging, inter alia, that the Consent
Order should be vacated based on fraud, mutual mistake, duress, and selective
enforcement. Intervenors filed an answer, averring that Defendants’ petition should
be dismissed because it was facially meritless in that Defendants failed to allege any
facts that occurred prior to execution of the Consent Order and failed to plead facts
with sufficient particularity or state a cognizable claim. (R.R. at 193a-210a, 236a-
69a.)
The trial court scheduled a hearing for July 17, 2014, to take the
testimony of Defendants’ former counsel, Scott Avolio, as well as to hear argument
on Defendants’ petition. The trial court also scheduled a hearing for July 29, 2014,
for the limited purpose of taking Ms. Nied’s testimony. (R.R. at 316a-17a, 469a.)
By order dated July 29, 2014, the trial court denied Defendants’ petition
and determined that no Rule to Show Cause shall issue. Thereafter, Defendants filed
a motion for reconsideration or, in the alternative, a motion to certify order for
interlocutory appeal. (R.R. at 719a, 723a-34a.)
By opinion and order dated September 19, 2014, the trial court denied
Defendants’ motion for reconsideration, reasoning that Defendants did not establish
prima facie grounds to set aside the Consent Order based on fraud, duress, or mutual
mistake. However, the trial court granted Defendants’ motion to certify order for
interlocutory appeal.3 (R.R. at 800a-10a.)
3
By order dated September 30, 2014, the trial court deferred ruling on Intervenors’ Petition
for Rule to Show Cause Why Defendants Should Not Be Held in Contempt pending Defendants’
appeal. (R.R. at 811a.)
6
By order dated January 13, 2015, this Court quashed Defendants’ appeal,
reasoning that Defendants failed to file a petition for permission to appeal pursuant to
Pennsylvania Rule of Appellate Procedure (Pa. R.A.P.) 1311(b). Thereafter, the
Pennsylvania Supreme Court denied Defendants’ petition for allowance of appeal.
(R.R. at 822a-23a, 825a.)
By order dated August 7, 2015, the trial court found Defendants in
contempt because they knowingly and willingly violated the Consent Order.
Consequently, the trial court ordered Defendants to pay $53,563.53 for Intervenors’
legal expenses, but noted that Defendants’ counsel may petition for a hearing to
determine whether the legal fees are reasonable. More specifically, the trial court
concluded:
1. On April 12, 2013, the Honorable Richard E.
McCormick, Jr. entered a Consent Order permitting the
Defendants to conduct not more than eleven (11) events at
the property Foxley Farm. The Order also precluded the
Defendants from booking or providing overnight
accommodations for non-approved commercial activities,
including weddings or wedding-related events unless or
until a certificate of occupancy was issued by the Township
specifically approving those activities or events.
2. On April 18, 2013, counsel for the Defendants indicated
in a letter, that eleven (11) events were scheduled at Foxley
Farm, the last event being scheduled to occur on August 17,
2013. Contrary to the letter, however, and in violation of
the Consent Order of Court, the Defendants held in excess
of eleven events at Foxley Farm. Specifically, the
Defendants held five additional events after August 17,
2013.
3. This Court finds that the Defendants knowingly and
willfully violated the April 12, 2013 Consent Order when
they conducted more than eleven (11) events at the property
of Foxley Farm without approval from the Plaintiffs. More
specifically, Defendants, being party to the Consent Order
7
of Court dated April 12, 2013, had explicit knowledge of
the terms and conditions of said Order. Evidence presented
at the contempt hearing leads this Court to the finding that
the Defendants chose to ignore the explicit terms of the
Consent Order, at the risk of suffering whatever sanctions
and penalties said Order provided.
4. This Court finds that the injunction shall remain in full
force and effect and the Defendants are hereby prohibited
from hosting, holding, or conducting dinners, weddings,
wedding receptions, events, fundraisers, “farm-to-table”
dinners, or any other events on their property, which are
inconsistent with, and/or specifically prohibited by the
explicit terms of the Consent Order of Court dated April 12,
2013, unless, or until, a certificate of occupancy is issued to
permit said activities.
5. The Defendants are ordered to pay $2,500.00 to the
Plaintiff, Ligonier Township in civil penalties. ($500.00
per additional event).
6. Additionally, the Defendants are ordered to pay
$12,018.84 to the Plaintiff, Ligonier Township, for
Attorney’s Fees, costs, and expenses.
7. Additionally, the Defendants are ordered to pay the sum
of $53,563.53 to the firm of Sittig, Cortese & Wratcher,
LLC, for professional services and expenses incurred by
Intervenors.
8. Counsel for the Defendants may petition the Court for a
hearing to determine whether the requests for counsel fees
and expenses made by both Plaintiff and Intervenors are
reasonable under the circumstances and extent of the within
litigation. Said requests, if any is made, shall be presented
within twenty (20) days of the date of the within Order of
Court.
9. In light of the undersigned being transferred to the
criminal section of the court, the Court Administrator shall
reassign this matter to the appropriate Civil Court judge for
further proceedings.
(R.R. at 826a-28a.)
8
Defendants filed a motion seeking a hearing on the reasonableness of
attorney’s fees and the trial court scheduled a hearing for the same. By order dated
March 8, 2016, the trial court determined that the award of attorney’s fees was
proper. Defendants appealed the trial court’s order to this Court. (R.R. at 966a.)
On appeal,4 Defendants argue that the trial court committed an error of
law when it denied their Petition for Rule to Show Cause Why the Consent Order
Should Not Be Vacated because they established prima facie grounds for the
requested relief. Defendants also argue that the trial court erred in finding them in
contempt because the Consent Order was void ab initio on the basis of fraud, duress,
and mutual mistake. Alternatively, Defendants argue that the trial court erred in
awarding an excessive sum of attorney’s fees for services not directly related to
Intervenors’ efforts to enforce the Consent Order.
Discussion
Pennsylvania Rule of Civil Procedure (Rule) 206.4 provides:
(a)(1) Except as provided by subparagraph (2), a petition
shall proceed upon a rule to show cause, the issuance of
which shall be discretionary with the court as provided by
4
“The general rule is that ‘each court is the exclusive judge of contempt against its process,
and on appeal its action will be reversed only when a plain abuse of discretion occurs.’” Jack Rees
Nursing and Rehabilitation Services v. Hersperger, 600 A.2d 207, 209 (Pa. Super. 1991) (citing
Fatemi v. Fatemi, 537 A.2d 840, 846 (Pa. Super. 1988)). An abuse of discretion occurs “when the
course pursued represented not merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill will.” Luzerne County Flood Protection Authority v. Reilly, 825
A.2d 779, 782 (Pa. Cmwlth. 2003) (citing Morrison v. Department of Public Welfare, 646 A.2d
565, 571-71 (Pa. 1994)).
9
Rule 206.5 unless the court by local rule adopts the
procedure of 206.6 providing for issuance as of course.[5]
(2) A judgment shall be stricken without the issuance of a
rule to show cause where there is a defect on the face of the
record that constitutes a ground for striking a default
judgment.
(b) The procedure following issuance of the rule to show
cause shall be in accordance with Rule 206.7.
Pa.R.C.P. No. 206.4 (emphasis added).
Rule 206.5(c) states “[i]f the petition is within the scope of Rule
206.1(a), is properly pleaded, and states prima facie grounds for relief, the court shall
enter an order issuing a rule to show cause and may grant a stay of proceedings.”
Pa.R.C.P. No. 206.5(c) (emphasis added). Rule 206.1(a) defines a “petition” as:
(1) an application to strike and/or open a default judgment
or a judgment of non pros, and
(2) any other application which is designated by local rule,
numbered Local Rule 206.1(a), to be governed by Rule
206.1 et seq.
Pa.R.C.P. No. 206.1(a).
Westmoreland County Local Rule 206.1(a) states that no application
other than those listed in Rule 206(1) have been designated as petitions. Moreover,
the trial court’s local rules enumerate its procedures when presented with a Rule to
Show Cause, providing that “[a]t the time of presentation, the court shall use the
discretion granted by Pa.R.C.P. [No.] 206.4 to determine if a rule to show cause
should be issued and whether an interim relief requested should be granted. The
interim relief may include a stay of execution.” Rule 206.4(c)(3) (emphasis added).
5
Westmoreland County has not adopted the procedure under Pa.R.C.P. No. 206 providing
for issuance as of course.
10
“The interpretation and application of a Pennsylvania Rule of Civil
Procedure presents a question of law. Accordingly, to the extent that we are required
to interpret a rule of civil procedure, our standard of review is de novo, and our scope
of review is plenary.” Keller v. May, 67 A.3d 1, 5 (Pa. Super. 2013) (citing Gray v.
Buonopane, 53 A.3d 829, 834 (Pa. Super. 2012)).
Defendants argue that the trial court erred in failing to issue their
requested Rule to Show Cause because they presented prima facie grounds for relief.6
According to Defendants, they are entitled to issuance of the Rule to Show Cause
Why the Consent Order Should Not Be Vacated pursuant to Rule 206.5(c) and the
trial court’s failure to do so improperly insulated the Township and Intervenors from
discovery that would have proved the veracity of their claims. Defendants also aver
that, by holding two evidentiary hearings, the trial court implicitly conceded that
Defendants established prima facie grounds for relief.
6
Conversely, Intervenors argue that Defendants are prohibited from raising this argument
pursuant to the “law of the case” doctrine. According to Intervenors, this Court’s order quashing
Defendants’ appeal from the trial court’s order, as well as the Supreme Court’s denial of
Defendants’ subsequent petition for appeal, which denied Defendants’ motion for reconsideration
because Defendants did not establish prima facie grounds to set aside the Consent Order, precludes
Defendants from raising the issue now.
“[U]nder the law of the case doctrine, ‘a court involved in the later phases of a litigated
matter should not reopen questions decided by another judge of that same court or by a higher court
in the earlier phases of the matter.’” Commonwealth v. Wright, 14 A.3d 798, 817 (Pa. 2011)
(quoting Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)) (emphasis added). Here,
however, this Court quashed Defendants’ appeal on procedural grounds, i.e., failure to comply with
Pa. R.A.P. 1311(b), and did not decide the merits of the issue. Therefore, Intervenors’ argument in
this regard is unpersuasive. See also Griffin v. Central Sprinkler Corporation, 823 A.2d 191, 195
(Pa. Super. 2003) (“The law of the case doctrine bars the relitigation, or reversal of a ruling, on an
issue already determined in another phase of the litigation of the same case before the same court.”)
(emphasis added).
11
Westmoreland County has not designated any application other than
those listed in Rule 206(1) as a “petition.” Therefore, the only petitions that fall
within Rule 206.1(a) in Westmoreland County, and trigger the non-discretionary
issuance procedure, are: (1) an application to strike and/or open a default judgement;
or (2) an application for judgment of non pros. The issuance of other petitions for
Rules to Show Cause is discretionary.
Here, Defendants filed a petition for Rule to Show Cause Why the
Consent Order Should Not Be Vacated; they did not file an application to strike
and/or open a default judgment, or an application for judgment of non pros.
Consequently, the issuance of the requested Rule to Show Cause was discretionary.
As such, the trial court did not commit an error of law when it declined to issue the
Rule to Show Cause because Defendants’ petition did not implicate the non-
discretionary issuance procedure under Rule 206.5(c).
Next, Defendants argue that the trial court erred when it found
Defendants in contempt of the Consent Order when the same was void ab initio on
the basis of fraud, duress, and mutual mistake and, therefore, null and void since its
inception.7
To sustain a finding of civil contempt, the complainant must prove: (1)
that the contemnor had notice of the specific order or decree which he is alleged to
have disobeyed; (2) that the act constituting the contemnor’s violation was volitional;
and (3) the contemnor acted with wrongful intent. Lachat v. Hinchcliffe, 769 A.2d
481, 489 (Pa. Super. 2001).
7
Although their assertion as framed alleges duress and mutual mistake, Defendants failed to
provide any argument regarding these theories in their appellate brief and focus entirely on fraud
and the purported lack of notice.
12
According to Defendants, Avolio only advised them of a possible
$500.00 fine for each event in excess of the number permitted in the Consent Order
and none of the Defendants reviewed the Consent Order until approximately October
2013. Therefore, Defendants maintain that the trial court’s order finding them in
contempt constituted an abuse of discretion because Defendants did not have notice
of the terms of the specific order they allegedly violated.
Here, Avolio testified that he verbally advised the Nieds of the
consequences if they failed to follow the terms of the Consent Order. He also
testified that the parties participated in negotiating the terms of the Consent Order.
Indeed, Avolio testified that Ms. Nied participated in the negotiation of each and
every term of the Consent Order. (R.R. at 347a, 370a-72a.) Moreover, Ms. Nied
testified that, the day the Consent Order was entered, she met with Avolio to discuss
the number of weddings that would be permitted under the agreement. Ms. Nied
further testified that Avolio advised her that, under the proposed agreement, she
would not be able to advertise, and could not book new weddings, and the Township
requested that she drop her pending land use appeal. According to Ms. Nied, Avolio
also advised her regarding the parking and security requirements contained in the
Consent Order. (R.R. at 505a-13a.) Similarly, Ms. Nied testified that:
The only thing that was discussed in regards to attorney’s
fee or fees was the one that the township could fine me
$500.00 maximum if I should hold an additional wedding.
And also when we were to negotiate the number of
weddings Bill Sitting said, I’ll let you have more weddings
if you pay my attorney’s fees.
(R.R. at 518a.)
Based on this testimony, we discern no abuse of discretion in the trial
court’s determination finding Defendants in contempt because its determination that
13
Defendants had notice of the Consent Order is not manifestly unreasonable, a
misapplication of the law, or the result of partiality, prejudice, bias, or ill will.
Finally, Defendants argue that the trial court’s award of attorney’s fees
was erroneous because part of the award was not related to Intervenors’ efforts to
enforce the Consent Order. More specifically, Defendants assert that $22,820.00 in
fees can be divided into three categories unrelated to the enforcement of the Consent
Order: (1) $2,275.00 attributed to a February 26, 2014 Board hearing;8 (2) $8,920.00
attributed to Defendants’ petition to vacate the Consent Order; and (3) $11,625.00
attributed to Defendants’ mandamus action.9
Intervenors argue that the litigation in question occurred after the
Consent Order was executed and involved requests for permission to use the Property
for weddings and other related events. According to Intervenors, the trial court’s
award of attorney’s fees was well within its discretion.
“Appellate review of a trial court’s order awarding attorney’s fees to a
litigant is limited solely to determining whether the trial court palpably abused its
discretion in making a fee award.” Thunberg v. Strause, 682 A.2d 295, 299 (Pa.
1996).
8
Ms. Nied testified that the February 26, 2014 Board meeting concerned an application to
become a community sustainable agricultural social group, which involved members pre-paying for
farm produce. She further testified that Defendants’ ability to host weddings at the Property was
not the subject of the hearing; however, she was not sure whether her attorney raised the prohibition
against weddings at the hearing. (R.R. at 903a-06a, 925a.)
9
The mandamus action sought deemed approval of a conditional land use application
seeking to use the Property as a bed and breakfast and for a social/recreation use based on the fact
that the application had not been timely processed. (R.R. at 299a-306a, 880a.)
14
Paragraph 12 of the Consent Order provides “Should any enforcement
action be brought pursuant to this order the prevailing party will be entitled to
reasonable attorney’s fees of other parties.” (R.R. at 24a-25a) (emphasis added).
Here, regarding the first category of fees, the February 26, 2014 Board
meeting did not arise from an enforcement action brought pursuant to the Consent
Order. Rather, the Board meeting concerned an application to become a community
sustainable agricultural group. Thus, because fees related to the February 26, 2014
Board meeting did not arise from an enforcement action brought pursuant to the
Consent Order and, therefore, did not fall within the scope of Paragraph 12 of the
same, the trial court’s $2,275.00 award of attorney’s fees constituted an abuse of
discretion.
Similarly, Defendants’ mandamus action, the third category of fees, did
not arise from an enforcement action brought under the Consent Order. Instead,
Defendants’ mandamus action sought deemed approval of a conditional land use
application that purportedly had not been timely processed. As such, Defendants’
mandamus action did not fall within the scope of Paragraph 12 of the Consent Order
and the trial court’s $11,625.00 award of attorney’s fees in this regard constituted an
abuse of discretion.
However, the fees for the second category provide a more compelling
case to affirm the trial court’s award. The second category of fees was awarded for
defending Defendants’ petition to vacate the Consent Order. By defending a
challenge to the validity of the Consent Order, Intervenors sought enforcement of the
Consent Order. Although this litigation was not an enforcement action brought under
the Consent Order, it did seek enforcement of the Consent Order. As such, the trial
court did not commit a palpable abuse of discretion in awarding $8,920.00 in fees
associated with defending Defendants’ challenge to the validity of the Consent Order.
15
Conclusion
Defendants’ argument that they were entitled to issuance of a Rule to
Show Cause because they established prima facie grounds for relief is unpersuasive
because the governing Rule provides the trial court with discretion regarding whether
to issue a Rule to Show Cause and Defendants’ petition did not trigger the non-
discretionary procedures. Additionally, the trial court did not commit an abuse of
discretion when it found Defendants in contempt because the record contains
evidence indicating that Defendants had notice of the order they violated. Finally, the
trial court’s award of attorney’s fees was proper insofar as the award related to
Intervenors’ defense to the petition to vacate the Consent Order. However, the award
of fees pertaining to the February 26, 2014 Board meeting, as well as fees pertaining
to Defendants’ mandamus action, constituted a palpable abuse of discretion because
the respective litigation did not arise from an enforcement action brought pursuant to
the Consent Order.
________________________________
PATRICIA A. McCULLOUGH, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ligonier Township :
: No. 566 C.D. 2016
v. :
:
Margaret S. Nied and Paul J. Nied, :
her husband, and Foxley Farm, LLC, :
and Christopher Turner and Carolyn :
Shearer Turner, husband and wife, :
Donald Korb and Carolyn Roberts :
Korb, husband and wife, and David :
Barnhart and Sally Ann Barnhart, :
husband and wife :
:
Appeal of: Margaret S. Nied, Paul J. :
Nied and Foxley Farm, LLC :
ORDER
AND NOW, this 4th day of May, 2017, the March 8, 2016 order of the
Court of Common Pleas of Westmoreland County is affirmed, in part, and
reversed, in part, consistent with the foregoing opinion.
________________________________
PATRICIA A. McCULLOUGH, Judge