Joshua, M. v. Keck, T. ( 2021 )

J-S16034-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MEYER AHARON JOSHUA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TRAVIS KECK : No. 137 EDA 2021
Appeal from the Order Entered December 15, 2020
In the Court of Common Pleas of Carbon County Civil Division at No(s):
No. 16-1927
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 6, 2021
Appellant Meyer Aharon Joshua appeals the order of the Court of
Common Pleas of Carbon County denying Joshua’s petition for contempt
against Appellee Travis Keck for his alleged noncompliance with the trial
court’s September 17, 2018 order which incorporated the parties’ stipulation.
After careful review, we affirm.
The trial court summarized the factual background and procedural
history of this case as follows:
On August 17, 2016, Joshua filed an Action to Quiet Title
complaint against Keck over an alleged encroachment into
Joshua’s property located at 40 West [Main] Street, Weatherly,
Pennsylvania. … Eventually on September 14, 2018, the parties
entered into a stipulation to resolve the underlying litigation. The
stipulation was incorporated into an order of court dated
September 17, 2018.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S16034-21
On August 17, 2018, Joshua filed a petition for contempt
alleging that Keck, in violation of the stipulation and order “began
erecting a new addition to his home which invades [Joshua’s]
property, approximately as much as the ‘existing porch.’” [FN1]
Joshua also claims that Keck removed Joshua’s fence in violation
of the order and has not made all payments due and owing to
Joshua under the terms of that stipulation and order.
[FN1 Joshua resides at 40 West Main Street, Weatherly,
Pennsylvania and Keck lives at 28 Race Street, Weatherly,
Pennsylvania. These properties share a boundary line
where the encroachment is located.]
In relevant and pertinent parts relating to the petition for
contempt, the following paragraphs from the stipulation were at
issue in the hearing on the underlying petition:
3. The parties, intending to be legally bound, without
admission of wrongdoing, hereby agree as follows:
***
B. Each party shall enjoy quiet use, title, and
enjoyment of their respective properties on either side
of said agreed line, without interference, harassment,
disturbance, trespass, or encroachment of any kind,
but for [Keck’s] existing porch, which encroaches
upon [Joshua’s] property, which may remain.
C. [Joshua] will re-erect the common fence on or near
the previous fence location which was at or near the
agreed upon boundary line. However, the fence shall
not be erected over the existing covered and open
porches, it shall be erected along the sides of the
porches, leaving sufficient space for [Keck] to access
for maintenance purposes.
D. [Keck] shall pay the sum of $1200.00 to [Joshua]
in monthly installments of $50.00, commencing the
first day of October, 2018, and continuing the first day
of each month thereafter, until the full amount is paid.
A hearing was held on Joshua’s petition for contempt on
October 13, 2020. At that hearing, Joshua testified, that Keck,
after the execution of the stipulation, began to construct on a
concrete pad abutting his house, a structure which appears to
resemble an enclosed porch. Additionally, Joshua testified that
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some of the trusses from the roof structure of the addition as well
as the replacement roof Keck was putting on the other structure
actually went beyond the perimeter of that area and in fact
encroached further into the Joshua property than that allowed by
the terms of the stipulation.[FN2] By Joshua’s calculations, this
structure amounted to an additional 99 square foot encroachment
into his property.
[FN2 Keck acknowledged that in the picture presented by
Joshua that this was accurate, however, that was
temporary. Keck testified that those boards were eventually
cut back evenly to a location that did not extend beyond the
boundary line, This, Keck stated[,] did not cause a further
encroachment into the Joshua property.]
Joshua also testified that a fence was removed three times
by Keck in violation of the stipulation and order. Joshua indicated
that the fence was placed one foot back onto his property,
suggesting that it was one foot off of the common boundary line.
Joshua also testified that Keck failed to comply with that portion
of the agreement that required Keck to pay him a total of
$1,200.00, claiming that as of the filing of the contempt petition,
he was still owed $100.00 under that stipulation and order.[FN3]
As a result of all these alleged contemptuous actions, Joshua
requested this Court find Keck in contempt, order him to remove
this structure, replace the fence and pay the last installment of
the agreement as well as his attorney fees.
[FN3 This Court must note that this agreement required Keck
to pay Joshua twenty-four (24) incremental payments of
$50.00 per month beginning in October 2018. If payments
were made as required, the last payment would be due on
September 1, 2020. This contempt [petition] was filed on
August 17, 2020, prior to the due date of that last scheduled
payment, however[,] Joshua testified that he believed he
was owed $50.00 for the month of October, 2020, a date
beyond the last due date.]
In turn, Keck testified that when he purchased his home,
there was a covered porch on the very concrete pad in question
that he previously removed because of its bad condition. The
construction that Keck was engaged in was to replace that which
he had taken down years earlier. Keck testified that any
construction did not extend beyond the footprint of the concrete
pad and was in fact set back from the edge of the concrete pad.
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Keck also testified that the trusses that actually extended beyond
the boundary line as testified to by Joshua were temporarily
placed there for the sole reason of assuring that when the time
came to place the fascia board on, everything would be straight
and level. As per Keck’s testimony those trusses were eventually
cut back and were not an additional encroachment into the Joshua
property.[FN4]
[FN4 Keck testified that his understanding of the
encroachment area included that existing building and the
concrete pad.]
On the issue of the fence, Keck testified that the fence
placed there by Joshua impeded Keck’s ability to access his
property and maintain the same. The fence, according to Keck[,]
consisted of old wire mesh and was held in place by concrete
blocks and stones. Keck acknowledged that he removed it
because when Joshua replaced it, he did so in a manner that it
was placed “right across the patio or the porch” and blocked his
access to his property. Keck acknowledged that after he removed
it, he rolled it up and placed it in a pile for Joshua.[FN5]
[FN5 Keck also testified he left it in this pile at the property
line, but since Joshua was not moving it, he was having
difficulty mowing his grass. Thus, after a month[, Keck]
disposed of it.]
Trial Court Opinion (T.C.O.), 1/28/21, at 2-5.
On December 14, 2020, the trial court denied Joshua’s contempt
petition. On January 4, 2021, Joshua filed a timely appeal. On January 6,
2021, the trial court directed Joshua to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one
days of its order. The order indicated that “[a]ny issue not properly included
in the Concise Statement shall be deemed waived.” Order, 1/6/21, at 1.
On January 11, 2021, Joshua filed a concise statement that included the
claims that the trial court erred by:
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[1] “… permitting [Keck] to enlarge the ‘existing porch’ to a larger
size, contrary to the plain language of paragraph 3B of the said
stipulation”[;]
[2] “focus[ing] on the wrong section of the said Stipulation”[; and]
[3] “In finding [Keck] ‘not guilty,’ failing to award [Joshua]
attorney fees and costs, and failing to order the new structure to
be removed[.]”
Concise Statement, 1/11/21, at 2-3 (renumbered for review).
Thereafter, on January 25, 2021, Joshua filed a supplemental concise
statement claiming:
[1] [t]the court erred by not finding [Keck] in contempt for
entering upon the lands of [Joshua] and removing a portion of
[Joshua’s] fence posts, despite [Keck] admitting he removed
[Joshua’s] fence and/or fence posts.
…
[2] [t]he court erred by not ordering [Keck] to replace [Joshua’s]
fence and/or fence posts.
Supplemental Concise Statement, 1/25/21, at 1-2 (renumbered for review).1
In his appellate brief, Joshua raises two issues for our review:
A. Did the trial court err by failing to find that [Keck’s] new
construction violated the Stipulation and Order, and by failing
to order its removal, and to award attorney fees?
B. Did the trial court err by failing to find that [Keck’s] actions in
removing and discarding [Joshua’s] fence violated the
Stipulation and Order, and by failing to order [Keck] to replace
the fence, and award attorneys fees?
Joshua’s Brief, at 8.
____________________________________________
1 Both of Joshua’s concise statements also included several numbered
paragraphs setting forth factual background information that did not include
claims of trial court error. We have eliminated those unnecessary paragraphs
for ease of review.
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In reviewing the trial court’s order denying the petition for contempt,
our standard of review is as follows:
[A]n appellate court has the authority to determine whether the
findings of the trial court support its legal conclusions, but may
only interfere with those conclusions if they are unreasonable in
light of the trial court's factual findings. This Court will not reverse
or modify a final decree unless there has been an error of law or
an abuse of discretion, or if the findings are not supported by
the record, or there has been a capricious disbelief of the
credible evidence. Furthermore [e]ach court is the exclusive
judge of contempt against its process, and on appeal its actions
will be reversed only when a plain abuse of discretion occurs.
Sutch v. Roxborough Mem'l Hosp., 142 A.3d 38, 67 (Pa.Super. 2016)
(citation omitted) (emphasis in original).
This Court has explained that “[t]he purpose of a civil contempt
proceeding is remedial. Judicial sanctions are employed to coerce the
defendant into compliance with the court's order, and in some instances, to
compensate the complainant for the losses sustained.” Stahl v. Redcay, 897
A.2d 478, 486 (Pa.Super. 2006). Moreover,
[t]o be punished for contempt, a party must not only have
violated a clear 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. Because the order forming the basis for civil
contempt must be strictly construed, any ambiguities or
omissions in the order must be construed in favor of the
defendant. In such cases, a contradictory order or an order
whose specific terms have not been violated will not serve
as the basis for a finding of contempt. To sustain a finding
of civil contempt, the complainant must prove certain
distinct elements: (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) that the contemnor acted
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with wrongful intent. 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.
[Stahl v. Redcay, 897 A.2d 478, 489 (Pa.Super. 2006)]
(emphasis in original) (citation omitted). In other words, the
alleged contemnor must know of the prohibited conduct, with any
ambiguities, omissions, or uncertainties in the order construed in
favor of the alleged contemnor, the act constituting the violation
must be deliberate, and the act of the alleged contemnor must
have been done with improper intent. Id. See also In re
Contempt of Cullen, 849 A.2d 1207, 1210 (Pa.Super. 2004),
appeal denied, 582 Pa. 676, 868 A.2d 1201 (2005).
“In proceedings for civil contempt of court, the general rule is that
the burden of proof rests with the complaining party to
demonstrate that the defendant is in noncompliance with a court
order.” MacDougall v. MacDougall, 49 A.3d 890, 892
(Pa.Super.2012), appeal denied, 621 Pa. 679, 75 A.3d 1282(2013). “However, a mere showing of noncompliance with a court
order, or even misconduct, is never sufficient alone to prove civil
contempt.” Habjan v. Habjan, 73 A.3d 630, 637
(Pa.Super.2013). See also In re Contempt of Cullen, supra.“[U]nless the evidence establishes an intentional disobedience or
an intentional [disregard] of the lawful process of the court, no
contempt has been proven.” Ricci v. Geary, 447 Pa.Super. 609,
670 A.2d 190, 192 (1996).
Sutch, 142 A.3d at 67–68.
As an initial matter, we note that Joshua suggests that the trial court
was not required to make a finding of contempt but merely could have found
Keck to have breached the parties’ stipulation that was incorporated into the
trial court’s order. However, our review of the record revealed that Joshua’s
petition only included a general request for the trial court to find Keck in
contempt and did not specifically request that Keck be found liable for a breach
of the parties’ stipulation (or settlement agreement). Thus, this issue was not
properly preserved before the trial court. See Pa.R.A.P. 302(a) (“[i]ssues not
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raised in the lower court are waived and cannot not be raised for the first time
on appeal”). As such, the trial court correctly limited its review to determine
whether Keck should be held in contempt for his alleged noncompliance with
the trial court’s order.
Joshua first asserts that the trial court should have found Keck to be in
contempt as Keck’s new construction on his concrete pad violated the trial
court’s order that prohibited further “encroachment of any kind.” While
Joshua acknowledges that order indicated that Keck’s “existing porch, which
encroaches upon [Joshua’s] property, … may remain,” Joshua claims the trial
court erred in finding the “existing porch” constituted Keck’s concrete pad.
Instead, Joshua argues that the “existing porch” referred to a different location
at Keck’s outcrop building which he used for storage.
However, this specific argument was not raised in Joshua’s concise
statement filed pursuant to Rule 1925(b). Instead, Joshua claimed, to the
contrary, that the trial court erred in “permitting [Keck] to enlarge the
‘existing porch[.]’” Concise Statement, 1/11/21, at 2 (emphasis added). This
language in Joshua’s concise statement indicates that he conceded that the
trial court correctly determined that the “existing porch” was the location
where Keck was building his new construction, i.e., the concrete pad.
As such, Joshua’s claim that the trial court erred in determining the
location of the “existing porch” is waived due to his failure to raise it in his
concise statement. Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Lord, 553
Pa. 415, 420, 719 A.2d 306, 309 (1998) (“[F]rom this date forward ...
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[a]ppellants must comply whenever the trial court orders them to file a
Statement of [Errors] Complained of on Appeal pursuant to Rule 1925. Any
issues not raised in a 1925(b) statement will be deemed waived”); Greater
Erie Industrial Development Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 224 (Pa. Super. 2014) (en banc) (“it is no longer within this Court's
discretion to ignore the internal deficiencies of Rule 1925(b) statements”).
Thus, we only review Joshua’s contention that the trial court should have
held Keck in contempt for placing new construction on the “existing porch” or
concrete pad, as he asserts that the new construction constitutes additional
encroachment onto his property. Joshua claims this new construction violates
the order and stipulation which prohibits “encroachment of any kind, but for
[Keck’s] existing porch, which encroaches upon [Joshua’s] property, which
may remain.”
To support its decision to deny Joshua’s contempt petition, the trial court
set forth the following analysis:
Pursuant to Black’s Law Dictionary (11th Ed. 2019)[,]
encroachment is defined as: 1) an infringement of another’s right;
2) an interference with or intrusion onto another’s property.
Clearly, the existing porch referenced throughout was an
encroachment onto [Joshua’s] property. [Joshua] argues that the
building by [Keck] of the enclosed structure, through on the
existing and encroaching porch, is a “further” encroachment. We
disagree.
What [Keck] has done here is “build up, not out.” In other
words, [Keck] has not enlarged the footprint of the encroachment.
Building up and not expanding the size of the encroachment into
[Joshua’s] property does not infringe upon [Joshua’s] property
any more than the parties agreed [Keck] could do by virtue of the
stipulation. Had the parties intended to prevent a particular use
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of the encroachment, that should have been made part of the
stipulation. Here [Keck] is “using” the existing porch which
encroaches into [Joshua’s] property and can do so without
restriction provided it otherwise complies with the law.
T.C.O., at 14-15.
Based on these facts, we agree with the trial court’s assessment that in
building his new construction, Keck’s conduct was “consistent with the intent
of the stipulation.” T.C.O., at 15. The trial court’s finding is supported by
the record as the language of the trial court’s order, which was based on the
parties’ own stipulation, deemed the “existing porch” area to be a permissible
encroachment onto Joshua’s property and did not include any further
restriction on Keck’s use of the property provided that it complies with local
ordinances. Joshua never established a dimensional description of the
concrete pad area and does not challenge the trial court’s finding that Keck’s
new construction does not extend onto Joshua’s land further than the
permitted encroachment.
Further, we note that Joshua did not allege at any point in the lower
court or on appeal that Keck acted with improper intent. Our review of the
record simply presents a situation in which two parties disagree on how to
interpret the trial court’s order which was based on a stipulation that the
parties themselves authored and agreed on. As a result, we find the trial court
did not abuse its discretion in refusing to find Keck in civil contempt for his
construction on the “existing porch” area.
In his second issue on appeal, Joshua asserts “the trial court erred in
not finding Keck in contempt concerning the fence and by failing to order
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[Keck] to replace the fence and/or posts.” Joshua’s Brief, at 35. As noted
above, the trial court’s order, based on the parties’ stipulation, allowed Joshua
to place a fence on his property to define the property boundary but expressly
indicated that “the fence shall not be erected over the existing covered and
open porches, it shall be erected along the sides of the porches, leaving
sufficient space for [Keck] to access for maintenance purposes.”
However, the trial court found that Keck to be credible in testifying that
while he did remove Joshua’s fence, he intended to relocate the fence away
from his home in order to allow Keck to maintain his property, which included
the porch area. The trial court also found Keck testified credibly when he
claimed that Joshua had replaced the mesh wire fence at a location which
itself violated the stipulation and order and impeded Keck’s access to his
property. As such, the trial court found that Keck did not act with improper
intent in taking down the fence, but that his intent was consistent with
compliance with the stipulation.
We agree with the trial court’s determination that, as Joshua did not
show that Keck’s act of taking down the fence was willful misconduct, finding
Keck in contempt was not warranted. Further, as the trial court did not find
removal of the fence to be contemptuous conduct, it also declined to order
Keck to replace Joshua’s fence after he subsequently disposed of it as Joshua
had not sought relief beyond civil contempt against Keck.
As the trial court’s factual findings and credibility determinations are
supported by the record and its legal conclusions are reasonable, we find the
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trial court properly exercised its discretion to deny Joshua’s petition for
contempt against Keck.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2021
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