Lipesky, M. v. Mahan, J.

J-A27041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL LIPESKY AND LESLIE DELL IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES MAHAN
Appellant No. 706 EDA 2016
Appeal from the Order February 18, 2016
in the Court of Common Pleas of Northampton County Civil Division
at No(s): No. 2014-03210
MICHAEL LIPESKY AND LESLIE DELL IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES MAHAN
Appellant No. 829 EDA 2016
Appeal from the Order February 18, 2016
in the Court of Common Pleas of Northampton County Civil Division
at No(s): No. 2014-03210
BEFORE: PANELLA, LAZARUS, FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 14, 2016
Appellant/Cross-Appellee (“Appellant”), James Mahan, appeals pro se
from the order entered on February 18, 2016, in the Northampton County
Court of Common Pleas denying Appellant’s petition for clarification and
reconsideration of the court’s January 29, 2016 order granting, in part,
*
Former Justice specially assigned to the Superior Court.
J-A27041-16
Appellees/Cross-Appellants’ (“Appellees”), Michael Lipesky and Leslie Dell,
petition for contempt. Appellees filed a cross-appeal from the order entered
on February 18, 2016, which failed to address Appellees’ request for
additional attorney’s fees. We affirm.
We adopt the facts and procedural history set forth by the trial court’s
January 29, 2016 findings of fact and April 25, 2016 Pa.R.A.P. 1925(a)
opinion. See Trial Ct. Op., 4/25/16, at 1-2, 8; Findings of Fact, 1/29/16, at
1-10.
On appeal, Appellant alleges various claims concerning the trial court,
including that the court erred in its January 29, 2016 findings of fact and
contempt order, and that the court erred by granting attorney’s fees to
Appellees.1 See Appellant’s brief at 2-10. On cross-appeal, Appellees argue
they should be awarded additional attorney’s fees incurred while responding
to Appellant’s pro se motion for clarification and reconsideration. Appellee’s
Brief at 9. No relief is due.
“In reviewing a trial court’s finding on a contempt petition, we are
limited to determining whether the trial court committed a clear abuse of
discretion. This Court must place great reliance on the sound discretion of
1
Appellant’s pro se brief fails to conform to the requirements of the
Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2111(a), 2116(a),
2119. Nevertheless, we will address Appellant’s issues as gleaned from the
trial court’s opinion. See Trial Ct. Op. at 2.
-2-
J-A27041-16
the trial judge when reviewing an order of contempt.” Flannery v. Iberti,
763 A.2d 927, 929 (Pa. Super. 2000) (citations omitted).
After careful consideration of the parties’ briefs, the record, and the
decision of the trial court, we affirm on the basis of the court’s opinion. See
Trial Ct. Op. at 2-9 (holding: (Appeal) Appellant’s claims regarding the
court’s factual errors are without merit, as the court’s January 29, 2016
findings of fact are based on competent evidence from the record; the court
did not err by allowing testimony of the August 2015 paving installation
during the October 13, 2015 contempt hearing because a conference was
held on September 14, 2015, at which the parties discussed this paving
installation; following the September 14, 2015 conference, the contempt
hearing was continued until October 13, 2015, to allow the parties to
prepare for argument on Appellees’ contempt petition and whether the
August 2015 paving installation complied with the parties’ March 27, 2015
agreement concerning the easement; Appellant, therefore, cannot claim
prejudice from the testimony regarding the August 2015 paving installation
because, following the conference, Appellant had sufficient notice that the
events subsequent to Appellees’ filing of the contempt petition would be
addressed at the contempt hearing; the court did not misinterpret the
requirements of the March 27, 2015 agreement because Appellant’s counsel
stated immediately thereafter that Appellant would pave “that portion of the
easement,” which referred to the entire disturbed area of the easement;
-3-
J-A27041-16
Appellant has waived his claim regarding the award of attorney’s fees to
Appellees because Appellant did not object to the award before, during, or
after the contempt hearing; the court was permitted to clarify its January
29, 2016 contempt order because it did so within thirty days and before
Appellant filed his appeal; Appellant was aware of the court’s potential to
clarify the contempt order, as he had filed a motion for clarification and
reconsideration, which was granted as to his request for clarification;
(Cross-Appeal) Appellees’ request for additional attorney’s fees was not
properly brought before the court because Appellees did not file a petition
requesting additional attorney’s fees, they did not file a counter-motion for
reconsideration requesting such fees, and the court never entered or filed an
order denying Appellees’ request for additional fees from which Appellees
could have filed their cross-appeal; Appellees improperly requested
additional fees in their “new matter,” which is not a substitute for a petition
requesting such fees; and Appellees were not required to respond to
Appellant’s motion for clarification and reconsideration and incur additional
legal fees). Accordingly, we affirm the court’s February 18, 2016 order.
Order affirmed.
-4-
J-A27041-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2016
-5-
Circulated 10/06/2016 03:52 PM
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MICHAEL LIPESKY and LESLIE DELL, ) .\) \··.,,.
Plaintiffs ) No. C-48-CV-lOtli-3210
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v. )
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JAM ES A. MAHAN, )
Defendant )
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925(a)
STATEMENT
On March 1, 2016, Defendant, acting prose, filed a Notice of Appeal to
the Superior Court from this Court's Order of Court filed on February 18,
2016 ("Clarification Order"), which clarified this Court's Decision and Order
of Court filed on January 29, 2016 ("Contempt Decision/Order"). Plaintiffs
filed a cross-appeal from the Contempt Decision/Order on March 18, 2016.
The Contempt Decision/Order held Defendant in civil contempt for violating
an Order of Court entered, by agreement of the parties, on March 17, 2015,
and filed on March 27, 2015 ("Agreed Order'').1 The Court will first address
Defendant's appeal.
Although Defendant's pro se Notice of Appeal only mentions the Clarification Order,
his concise statement of errors complained of on appeal, which is discussed infra,
demonstrates that Defendant intended to appeal both the Contempt Decision/Order and the
Clarification Order.
1
Defendant's Appeal
On March 3, 2016, this Court filed an Order of Court directing
Defendant to file and serve the Court with a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b)(1). On March 8, 2016, Defendant filed a "Statement of
Errors" ("Defendant's Statement"), asserting that the Court erred in
numerous ways. On March 14, 2016, Defendant filed a "Statement of Errors
Amendment 1," which the Court will consider as a supplement to
Defendant's Statement. The Court incorporates herein by reference the
findings of fact contained in its Contempt Decision/Order filed on January 29,
2016, and specifies that the place in the record where the reasons in support
of the orders appealed from can be found is the Contempt Decision/Order,
as supplemented herein.
Regarding the Contempt Decision/Order, Defendant's asserted errors
can be categorized as follows: 1) alleged factual errors; 2) an alleged
procedural error in allowing an implied amendment to Plaintiffs' Petition for
Contempt; 3) an alleged misinterpretation of the Agreed Order, Defendant's
violation of which placed him in contempt; and 4) an alleged erroneous
award of attorney's fees in favor of Plaintiffs.
Regarding the alleged factual errors, the Court notes that the findings
of fact contained in its Contempt Decision/Order are based on competent
evidence of record, as noted in the citations to the record following each
2
finding of fact. See L.B. Foster Co. v. Charles Caracciolo Steel & Metal Yerd,
Inc., 777 A.2d 1090, 1092 (Pa. Super. 2001). Thus, Defendant's allegations
of factual error are without merit.
Regarding the "implied amendment" to Plaintiffs' Petition for
Contempt, the Court notes that, despite its reference to the same as such
for identification purposes in the Contempt Decision/Order, Plaintiffs' Petition
for Contempt was never formally amended. (See N.T., 10/13/2015, at
43: 19-20.) Nevertheless, it was not error for the Court to allow testimony
regarding the August 2015 paving installation, because the challenged
subject matter constituted a permissible variance between the averments in
Plaintiffs' Petition for Contempt and the evidence submitted at the contempt
hearing. See Commonwealth v. Mutzabaugh, 699 A.2d 1289, 1291 (Pa.
Super. 1997) (variance permissible in contempt proceedings when defendant
given sufficient notice and there is no surprise or prejudice to defendant);
Reynolds v, Thomas Jefferson Univ. Hosp., 676 A.2d 1205, 1210 (Pa. Super.
1996) ("Pennsylvania courts have held that a variance is not material if the
alleged discrepancy causes no prejudice to the adverse party.").
The contempt hearing was originally scheduled for September 14,
2015. On that date, the parties appeared for the hearing. However, rather
than proceeding with the hearing, a conference was held during which
numerous events that took place subsequent to the filing of Plaintiffs'
Petition for Contempt, most notably the August 2015 paving installation,
3
were discussed. In light of the information discussed at the conference, the
Court continued the hearing and specially scheduled it for October 13, 2015,
which is not reflected on the docket sheet. This was done so that the parties
could prepare for a hearing that would cover both the issues raised in
Plaintiffs' Petition for Contempt as well as those issues discussed at the
conference, again, most notably whether the August 2015 paving installation
complied with the Agreed Order.2 Therefore, Defendant was fully apprised
that the events that took place after the filing of Pia intiffs' Petition for
Contempt would be addressed at the contempt hearing. As the hearing took
place nearly one month after the conference, Defendant had sufficient notice
and cannot claim any prejudice or surprise as a result of the Court
permitting the introduction of such evidence at the contempt hearing.
Defendant also asserts that the Court erred when it interpreted the
Agreed Order to require Defendant to repave the entire area of pavement
that he had excavated in November 2013 ("Disturbed Area"). Specifically,
Defendant takes issue with the Court's use of the word "entire" several times
in the Contempt Decision/Order. Defendant argues that the Court's
statement in the Agreed Order that Defendant was "going to repave a
portion of the disturbed area" indicates that Defendant did not agree to pave
the entire Disturbed Area. (See N.T., 3/17/2015, at 6:5-6 (emphasis
As it was clear to the Court and the parties that Plaintiffs would likely file a
supplemental petition for contempt if the hearing did not address whether the August 2015
paving installation complied with the Agreed Order, the parties agreed, for the sake of
judicial economy, to continue the hearing so that the parties could prepare to address this
issue.
4
added).) This is belied, however, by Defendant's counsel's statement
immediately thereafter that Defendant "will pave ... the disturbed area of
asphalt or macadam." (Id. at 6:7-9.) Defendant's counsel also stated in the
Agreed Order that Defendant agreed "to pave that portion of the easement,"
referring to the entire Disturbed Area. (Id. at 6:17-18 (emphases added).)
This added context makes dear that the entire Disturbed Area was the
portion of the easement that Defendant's counsel was referring to, given
that the easement in question constitutes an area far larger than merely the
Disturbed Area excavated by Defendant in November 2013. Defendant's
counsel later stated that Defendant agreed "to pave that portion," meaning
the entire Disturbed Area, which, again, is a portion of the entire easement.
(Id. at 7:3-4 (emphasis added).) For these reasons, the Court's
interpretation of the requirements imposed upon Defendant by the Agreed
Order was not in error.
Defendant also asserts that the Court erroneously awarded attorney's
fees to Plaintiffs. Defendant raised no argument against or objection to an
award of attorney's fees before the hearing, during the hearing, or in his
Brief submitted following the hearing. On February 4, 2016, Defendant filed
a "Petition in Support of Clarification and Reconsideration" of the
undersigned's Contempt Decision/Order ("Motion for Reconsideration"), in
which he first objected to the award of attorney's fees. Issues first raised in
a motion for reconsideration are beyond the jurisdiction of an appellate court
5
and are not subject to appellate review. See Rabatin v. Allied Glove Corp.,
24 A.3d 388, 391 (Pa. Super. 2011). Accordingly, Defendant has waived
this issue.
Regarding the Clarification Order, Defendant asserts that the Court
erroneously clarified its Contempt Decision/Order in violation of his right to
due process of law under the Fourteenth Amendment to the United States
Constitution. On February 8, 2016, and at Defendant's request, the
Honorable Emil A. Giordano, sitting in Motions Court and unbeknownst to the
undersigned, entered an Order of Court granting reconsideration of the
undersigned's Contempt Decision/Order. On February 12, 2016, Plaintiffs
filed an Answer and New Matter in response to Defendant's Motion for
Reconsideration. The factual assertions pleaded in Plaintiffs' New Matter
caused the Court to recognize that the requirements imposed upon
Defendant by the Contempt Decision/Order did not, perhaps, completely and
clearly reflect the Court's intent. Therefore, on February 18, 2016, the Court
filed the Clarification Order, clarifying that the requirement imposed upon
Defendant in the Contempt Decision/Order to "repave that portion of the
pavement excavated in November 2013 in the same location that the
pavement existed as of November 2013" included a requirement that
Defendant "excavate any portion of the pavement installed on August 27,
2015, that is located on Plaintiffs' property, if any.'' (Order of Ct. Jan. 29,
2016; Order of Ct., Feb. 18, 2016.) "Except as otherwise provided or
6
prescribed by law, a court upon notice to the parties may modify or rescind
any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been
taken or allowed." 42 Pa.C.S.A. § 5505. The Court did not modify its
Contempt Decision/Order, but merely clarified one aspect of it. However,
even if the Court's clarification is deemed to have modified the Contempt
Decision/Order, it did so within thirty days of the entry of the Contempt
Decision/Order and prior to Defendant's filing of the instant appeal. Further,
as Defendant sought and was granted reconsideration of the Contempt
Decision/Order, he was necessarily on notice that the Contempt
Decision/Order was subject to clarification and/or modification. Lastly,
although Defendant's Motion for Reconsideration was initially granted, giving
the Court the opportunity to reconsider its Contempt Decision/Order,
ultimately, the Clarification Order constituted a denial of the relief requested
in the Motion for Reconsideration. To the extent Defendant alleges that this
was in error, the Court notes that an appellate court has no jurisdiction over
a trial court's denial of a motion for reconsideration. See T. W. v. D.A., 127
A.3d 826, 826 n.1 (Pa. Super. 2015); Prince George Ctr., Inc. v, U.S.
Gypsum Co., 704 A. 2d 141, 145 (Pa. Super. 1997). For these reasons,
Defendant's claim that the Court erroneously clarified the Contempt
Decision/Order is without merit and is not subject to appellate review.
7
For all of the above reasons, the Court submits that Defendant is not
entitled to appellate relief.
Plaintiffs' Cross-Appeal
On March 22, 2016, this Court filed an Order of Court directing
Plaintiffs to file and serve the Court with a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 192 S(b )( 1). On April 11, 2016, Plaintiffs filed a "Concise
Statement of Errors Complained of on Appeal" ("Plaintiffs' Statement"),
asserting that the Court erred by failing to award them additional attorney's
fees in entering the Clarification Order, which disposed of Defendant's
Motion for Reconsideration.
Initially, the Court notes that the Court never entered or filed an order
denying Plaintiffs' request for additional attorney's fees, as the request was
never properly before the Court. Thus, there is no order on the docket for
Plaintiffs to appeal from, and Plaintiffs' cross-appeal is, therefore, not
properly before the Superior Court and should be quashed. See Pa.R.A.P.
301(a)(1). In this regard, the Court notes that Plaintiffs did not file a
petition requesting such additional attorney's fees. Further, Plaintiffs did not
file a counter-motion for reconsideration, requesting such fees, for the Court
to dispose of. Rather, Plaintiffs simply requested additional attorney's fees
as part of the facts pleaded in "new matter" filed in response to Defendant's
Motion for Reconsideration. In their new matter, Plaintiffs averred that
8
because they were required to defend against Defendant's Motion for
Reconsideration, they should be awarded attorney's fees incurred as a result
of such a defense. (New Matter 11 K.)
A party is not required to file a response, let alone new matter, to a
motion. Pa.R.C.P. No. 208.3(a) note; Northampton Cnty. Rule of Civil
Procedure 208.3(a). Moreover, "new matter" is only properly pleaded to
raise affirmative defenses to a complaint or to raise "material facts which are
not merely denials of the averments of the preceding pleading." Pa.R.C.P.
No. 1030(a) (emphasis added). A motion for reconsideration is not a
pleading. See Pa.R.C.P. No. 1017(a). Consequently, Plaintiffs were not
required to file a response to Defendant's Motion for Reconsideration and,
therefore, were not required to incur additional legal fees as averred in their
new matter. More importantly, Plaintiffs could not use "new matter" as a
substitute for a petition to request additional attorney's fees or a counter-
motion for reconsideration requesting such fees, and the Court cannot grant
affirmative relief based upon the pleading of new matter.
For all of the above reasons, Plaintiffs' request for additional attorney's
fees was never properly before this Court for disposition, no order was
entered by this Court disposing of the request, and Plaintiffs' cross-appeal is
not properly before the Superior Court and should be quashed.3
3
Even if Plaintiffs had properly raised their request for additional attorney's fees in
this Court, it would have been denied. In this case, the Court ordered Defendant to pay
attorney's fees to Plaintiffs as a sanction for Defendant's contempt of court in violating the
Agreed Order. The Court would not penalize Defendant, by awarding additional attorney's
9
BY THE COURT:
ANTHONY S. BELTRAMI, J.
Date: April 25, 2016
fees, for exercising his lawful right to request that the Court reconsider its Contempt
Decision/Order finding him in contempt.
10
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Plaintiffs ) No. C-48-CV-2014-3210
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JAM ES A. MAHAN, )
Defendant )
DECISION
This matter is before the Court on Plaintiffs' Petition for Contempt,
filed on June 17, 2015. Defendant filed an Answer to the Petition on July 1,
2015. A hearing on the Petition was held on October 13, 2015. The parties
have submitted briefs, and the matter is ready for disposition.1
FINDINGS OF FACT
1. Plaintiffs are the owners of real property with an address of 2269
Kovar Lane, Mt. Bethel, Northampton County, Pennsylvania ("Plaintiffs'
Property"). (Campi. ~ 1; Answer f 1.)
At the time of the hearing, Defendant was represented by Matthew J. Goodrich,
Esquire. On October 26, 2015, Attorney Goodrich was granted leave to withdraw his
appearance for Defendant. On the same date, Attorney Goodrich withdrew his appearance
for Defendant. On October 29, 2015, Defendant filed a brief acting prose.
1
2. Defendant is the owner of real property with an address of 2277
Kovar Lane, Mt. Bethel, Northampton County, Pennsylvania, where
Defendant has resided since January 2010 ("Defendant's Property").
(Compl. 11 2; Answer 11 2; N.T., 10/13/2015, at 100:7-17.)
3. Specifically, Plaintiffs' Property is "fully described as
Northampton County Tax Parcel Identifier No. E12-7-3, containing
approximately 0.249 acres of land, and more fully described in a deed
recorded in the [Northampton County Recorder of Deeds' Office], in Deed
Book 2000-1, Page 107182." (Compl. 11 3, Ex. A; Answer 11 3.)
4. Specifically, Defendant's Property is "fully described as
Northampton County Tax Parcel Identifier E12-7-2D, containing 5.5 acres
and more fully described in a deed recorded in the [Northampton County
Recorder of Deeds' Office], in Deed Book 2010-1, Page 22763.11 (Campi. 11
5, Ex. C; Answer 11 5.)
5. Defendant's Property was created by a conveyance from
Plaintiffs' predecessors in title in which Plaintiffs' predecessors reserved a
right of way ("Easement") over Defendant's Property consisting of a '''twelve
foot lane, or road, from the main road, running along the western lines of
[Plaintiffs' Property], and continuing through said [Plaintiffs' Property] to the
Delaware River, for the use of" Plaintiffs' predecessors and, by subsequent
conveyances, Plaintiffs. (Compl. 1111 9-10, Exs. A, B, D, E; Answer ,rn 9-10.)
2
6. The "rnaln road" is River Road, a public road that runs, in
relevant part, north to south, parallel to, in relevant part, the Delaware
River. (See Ex. R-3.)
7. The Easement makes up a portion of what is known as Kovar
Lane. (See id,)
8. The Easement is the only way to reach Plaintiffs' property from
River Road. (N.T., 10/13/2015, at 87:7-11.)
9. In 2012, Defendant created an access road, distinct from the
Easement, which turns off from the Easement in a north-easterly direction
and provides Defendant access to his property, which is located to the north
of Plaintiffs' property. (Id. at 101: 23-102: 13, 104: 14-23, 107: 4-6.)
10. On approximately November 21, 2013, Defendant placed
barriers across a portion of the Easement that runs south to north in front of
Plaintiffs' property. (Campi. ,i 13; see N.T., 3/27/2015, at 7:8-11; N.T.,
10/13/2015, at 11:1-5.)
11. At approximately the same time, Defendant excavated a portion
of the Easement in front of Plaintiffs' Property starting from the northern
boundary of Plaintiffs' property line, extending south, and ending at or near
the point where the Easement straightens toward River Road ("Disturbed
Area"). (Compl. ,i 15; N.T., 10/13/2015, at 23:3-13, 60:2-61:2, 121:3-
133:3; Exs. P-5, P-7, P-8, P-9, P-10, R-3.)
3
12. Prior to these events, the Easement, as it was being used, was
paved, including what the parties have referred to as a "soft curve"
constituting the turn from the Easement's west-east section to its south-
north section. (N.T., 10/13/2015, at 12: 25-14: 24, 51: 15-52: 7; Exs. P-2, P-
3.)
13. The Disturbed Area, included, at least in part, the soft curve and
continued, at least in part, westward toward River Road. (N.T., 10/13/2015,
at 131:7-132:23.)
14. On April 10, 2014, Plaintiffs filed a Complaint, asserting claims
for ejectment and trespass against Defendant.
15. On March 17, 2015, the parties reached a settlement agreement,
which was adopted as an Order of Court ("Agreed Order") that was filed on
March 27, 2015.
16. The relevant portions of the Agreed Order were entered into the
record as fol lows:
MR. GOODRICH: In this matter, [Defendant] will contract
with Mr. Scott Policelli ["PolicelW'] for purposes of obtaining a
metes and bounds description which will represent the legal
description of what we have been referring to as the soft curve,
which would be on the inside of the curve of [Defendant's]
property.
That metes and bounds description will be committed to
deed by way of likely a corrective deed filed here with the
Recorder of Deeds['] office in Northampton County,
Pennsylvania, to account for a new legal description representing
the [E]asement[,] which we are now confirming from River Road
4
making the soft curve and going to the edge of [Plaintiffs']
property line.
MR. LAYMAN: The northern edge.
MR. GOODRICH: Yes, the northern edge.
THE COURT: And that will replace the existing
easement of record?
MR. GOODRICH: That's correct, judge.
MR. GOODRICH: Jim Potter, who is the fire chief in
Portland as well as a supervisor at the Pennsylvania Department
of Transportation, will provide advice and counsel as to an
appropriate turning radius to enable the fire truck to access that
road around that soft curve.
For purposes of deliveries in the form of propane or mail,
UPS, what have you, FedEx, those individuals will be permitted
to make a small K turn, which would go onto [Defendant's]
property potentially but would not be part of the [E]asement, so
that they may turn around at that point by virtue of a three
point, or K turn, and proceed back out the [E]asement onto
River Road.
[Defendant] will pave the soft curve as well as the
disturbed area of asphalt or macadam. I have a quote from Mr.
Larry Hallett ... indicating that he would be able to perform that
service for 1,500 square feet of material and perform that job on
or before August 31st of 2015, in the amount of $2,550.
I would escrow $2,550 in my office to ensure that that
takes place and is paved by [Defendant], who agrees to pave
that portion of the [E]asement.
5
All blockages would be removed from the [E]asement.
THE COURT: All right. Mr. Mahan, did you also hear
the aqreernent as outlined?
[Defendant:] Yes.
THE COURT: Do you have any questions about it?
[Defendant:] No.
THE COURT: And you agree to it?
[Defendant: J Yes.
THE COURT: All right. Then I adopt the agreement as
an enforceable Order of this court.
(N.T., 3/17/2015, at 2:20-3:19, 3:23-24:4, 4:15-23, 6:8-19, 7:10-11, 9:3-
10.)
17. In January of 2015, Plaintiffs moved from Plaintiffs' Property to
New Jersey. (N.T., 10/13/2015, at 36:7-18.)
18. Plaintiffs now lease Plaintiffs' Property to Jason Abbott
("Abbott"). (Id. at 36:19-24, 59:13-60:4.)
19. In approximately April 2015, several weeks after the Agreed
Order, Defendant removed the barriers he had placed on the Easement but
in their place dug a trench/ditch several feet in depth and length. (Id. at
11 :6-12: 17; Exs. P-1, P-5.)
6
20. In approximately May 2015, while Abbott was away from the
property for two hours, Defendant excavated approximately eighty additional
feet of the existing pavement on the west-east portion of the Easement.
(N.T., 10/13/2015, at 19: 25-20: 16, 21: 14-24: 10, 61: 17-66-23, 132: 25-
133: 8; Exs. P-6, P-7.)
21. When Abbott returned to the property, Defendant was sitting on
a backhoe, which he owns and commonly uses, near the newly excavated
portion of the Easement. (N.T., 10/13/2015, at 64:10-65:25.)
22. On June 17, 2015, Plaintiffs filed the instant Petition for
Contempt, alleging that Defendant violated the Agreed Order by creating the
ditch and excavating the additional portion of the existing pavement on the
Easement.
23. The barriers and ditch have been removed from the Easement
and are no longer present. (Id. at 46: 18-25.)
24. On June 18, 2015, Policelli prepared a metes and bounds
description representing his depiction of the soft curve portion of the
Easement from previously recorded documents rather than a metes and
bounds description of the existing paved Easement and Disturbed Area that
were being used by the parties at the time the Agreed Order was entered
into. (Id. at 145:20-147:3; see Ex. R-1.)
7
25. On June 29, 2015, Policelli prepared a survey depicting the
dimensions of the Easement, the proposed location of the K turn, and the
portion of the Easement that Defendant would repave. (See Ex. R-3.)
26. Plaintiffs received the metes and bounds description on
September 14, 2015. (N.T., 10/13/2015, at 42:4-8.)
27. Plaintiffs were not provided with the survey until October 8,
2015. (Id. at 42:4-11.)
28. On August 27, 2015, Defendant installed new pavement in front
of Plaintiffs' property, on a portion of the south-north segment of the
Easement. (Id. at 24:11-33:13, 52:15-25, 67:6-18, 70:3-72:8; Exs. P-8, P-
9, P-10, P-11, P-12.)
29. At the time the new pavement was installed on August 27, 2015,
Defendant yelled at Abbott, called the police to the property, and asked a
worker who was present whether Defendant "should go in his house and get
some firearms." (N.T., 10/13/2015, at 67: 19-68: 16, 69:8-24.)
30. Defendant testified that he assumed that the metes and bounds
description matched the section of the survey marked "area to be paved,"
since both were created by Policelli pursuant to the Agreed Order. (Id. at
111:2-10.)
31. Policelli's metes and bounds description includes only the "soft
curve" of the Easement, not the entire Easement or the entirety of the
Disturbed Area. (Id. at 145: 20-147 :3, 150: 1-18.)
8
32. The curved portion of the area marked "to be paved" on the
survey aligns with the metes and bound description of the soft curve;
however, the entire area marked ''to be paved" does not encompass the
Disturbed Area that was to be repaved pursuant to the Agreed Order. (Id.
at 147:4-152:2.)
33. Defendant instructed Policelli to include the south-north portion
of the area marked "to be paved" in the survey. (Id. at 154:23-155:7.)
34. Policelli prepared the survey after conducting a site visit at the
properties in approximately early June of 2015. (Id, at 150: 19-25, 160:2-
7.)
35. At the time of Policelli's site visit, the Easement, starting from
River Road, was only paved up to Defendant's access road, with the
remainder of the Easement being gravel. (Id. at 161: 10-21.)
36. The new pavement installed on August 27, 2015, followed the
area marked "to be paved" on the survey and constituted 1, 183 square feet.
(Id, at 113: 1-13, 123:4-8, 148: 16-22.)
37. The pavement installed on August 27, 2015, did not cover the
existing soft curve that was being used by Plaintiffs nor the entirety of the
Disturbed Area, both of which, as of that date, were still gravel. (Id. at
121:3-132:23.)
9
38. The portions of the Easement that Defendant excavated in
November of 2013 as well as in May of 2015 are both to the east of the
access road that Defendant created in 2012. (Id. at 133:20-23.)
39. Defendant contends that the pavement called for in the Agreed
Order only related to the area on the survey marked "to be paved." (Id. at
138: 13-23.)
40. Plaintiffs paid Peter Layman, Esquire, $1, 777.50 in attorney's
fees for representing them in connection with the Instant contempt petition.
(Id. at 33:18-34:19; Ex. P-14.)
DISCUSSION
Plaintiffs filed the instant Petition for Contempt on June 17, 2015.
Clearly, the new pavement installed by Defendant on August 27, 2015, had
not yet occurred when the Petition was filed. However, on September 14,
2015, the Court held a conference with the parties, at which time Plaintiffs
presented to the Court the photographs of that pavement that were
introduced as exhibits at trial. At that conference, it was made clear that
the issue of whether the pavement installed on August 27, 2015, complied
with the Agreed Order would be considered at the hearing. Therefore, by
way of an implied amendment to the Petition, said pavement, although
installed later in time than the filing of the Petition, was within the scope of
the contempt hearing.
10
The law is well-established that "'[c]ourts possess an
inherent power to enforce their orders by way of the power of
contempt."' Dep't of Envtl. Prat. v. Cromwell Twp., Huntingdon
Cnty., 613 Pa. 1, 32 A.3d 639, 653 (2011) (Cromwell Township)
(quoting Commonwealth v, Bowden, 576 Pa. 151, 838 A.2d 740,
760 (2003)). "Courts have broad discretion in fashioning and
administering a remedy for civil contempt." Mulligan v.
Piczon, 739 A.2d 605, 611 (Pa. Cmwlth. 1999), aff'd, 566 Pa.
214, 779 A.2d 1143 (2001).
"The purpose of civil contempt is to compel performance
of lawful orders[.]"' Gunther v, Bolus, 853 A.2d 1014, 1018 (Pa.
Super. 2004) (quoting Cecil Twp. v. Klements, 821 A.2d 670,
675 (Pa. Cmwlth. 2003)). [When a] trial court's ... order [i]s
intended to coerce [a party] to comply with [a previous] order[,]
it is a civil contempt order. ''Pennsylvania courts ... have
stated that in civil contempt proceedings, the burden is generally
on the complaining party to prove noncompliance with the court
order by a preponderance of the evidence." Schnabel Assocs.,
Inc. v. Bldg. & Constr. Trades Council of Phi/a. & Vicinity, AFL-
CIO, 338 Pa. Super. 376, 487 A.2d 1327, 1336-37 (1985).
However, mere noncompliance with a court order is insufficient
to prove civil contempt. Bold v. Bold, 207 Pa. Super. 365, 939
A.2d 892 (2007).
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 with wrongful intent.'
Epstein - v. Saul Ewing, LLP, 7 A.3d 303, 318 (Pa. Super.
2010) ( emphasis added) ( quoting Lachat v. Hinchcliffe, 769 A.2d
481, 489 (Pa. Super. 2001)).
West Pittston Borough v. LIW Invs., Inc., 119 A.3d 415, 421 (Pa. Commw.
2015) (footnote omitted).
[I]n order for a trial court to hold a party in
contempt, [ ordinarily] a five-step process must first
11
be completed . . . . That process includes: [(] 1) a
rule to show cause . . .; [(]2) an answer and
hearing; [(]3) a rule absolute; [(]4) a hearing on the
contempt citation; and [(]5) an adjudication of
contempt.
Cleary v. Dep't of Transp., 919 A.2d 368, 372 (Pa. Cmwlth.
2007). "Fulfillment of all five factors is not mandated, however.
'[W]hen the contempt proceedings are predicated on a violation
of a court order that followed a full hearing, due process requires
no more than notice of the violations alleged and an opportunity
for explanation and defense."' Wood v. Geisenhemer-
Shaulis, .327 A.2d 1204, 1208 (Pa. Super. 2003)
(quoting Diamond v. Diamond, 792 A.2d 597, 601 (Pa. Super.
2002))[.J
West Pittston Borough, 119 A.3d at 421 n.10.
"A[n agreed order], although negotiated by the parties, is
a judicial act which is enforceable via the court's contempt
power." Jack Rees Nursing and Rehabilitation Services v.
Hersperger, 410 Pa. Super. 409 600 A.2d 2071 209 (1991). The
1
purpose of civil contempt is to compel performance of lawful
orders, and in some instances, to compensate the complainant
for the loss sustained. Bata v. Central-Penn National Bank of
Philadelphia, 433 Pa. 284, 249 A.2d 767 (1969); C.R. by Dunn v.
The Travelers, 426 Pa. Super. 92, 626 A.2d 588 (1993). When
contempt is civil in nature, as it is in this case, a court must
impose conditions on the sentence so as to permit the
contemnor to purge himself; he must be allowed to carry the
keys to the jail in his pocket. Kramer v. Kelly, 265 Pa. Super.
58, 401 A.2d 799, 802 (1979).
Cecil Twp. v. Klements, 821 A.2d 670, 675 (Pa. Commw. 2003). Finally, an
award of attorney's fees payable to the aggrieved litigant is a proper
sanction in a civil contempt order. Geisenhemer-Shaulis, 827 A.2d at 1208.
The Court begins with the first element-whether Defendant failed to
comply with the Agreed Order. Based upon its plain language, the Agreed
12
Order required Defendant to do the following five things: 1) hire Policelli to
create a metes and bounds description of the entire Easement as the paved
Easement, including the Disturbed Area, existed and was used by the parties
at the time of the Agreed Order, from River Road to the northern boundary
of Plaintiffs' property, with the intention of using that metes and bounds
description as the basis for corrective deeds identifying the new metes and
bounds description as the Easement in the parties' deeds; 2) obtain the
opinion of Fire Chief Jim Potter as to the proper dimensions of the
Easement's "soft curve" in order to allow safe passage of a firetruck and
emergency vehicles through the Easement; 3) allow emergency vehicles,
vehicles delivering propane, utility services, mail, and packages, to traverse
from the Easement's northern boundary back to River Road by performing
"K turns" or three-point turns in a manner that, if necessary, cross the
Easement's northern and/or western boundaries, thereby temporarily
invading, only for purposes of completing such turns, Defendant's property
located beyond the boundaries of the Easement;2 4) repave the Disturbed
Area as well as a soft curve at the Easement's directional intersection; and
5) remove all barriers placed upon the Easement.
Starting with the first requirement, it does not appear that Policelli
committed the entire Easement, as used by the parties at the time of the
2
The Agreed Order also permitted residents fleeing an emergency to use the
Easement.
13
Agreed Order, to a metes and bounds description. Rather, he testified that
the metes and bounds description that he drafted represents only the soft
curve portion of the Easement located at its west-east and south-north
intersection as taken from the deeds of record. In all likelihood, Policelli
limited the metes and bounds description to the soft curve because of the
following language in the Agreed Order: "[Defendant] will contract with
[Policelli] for purposes of obtaining a metes and bounds description which
will represent the legal description of what we have been referring to as the
soft curve." (N. T., 3/27 /2015, at 2: 20-3: 1.) However, the section
immediately following that language states that the purpose of the metes
and bounds description was "to account for a new legal description
representing the [E]asement[,] ... from River Road making the soft curve
and going to the edge of [Plaintiffs'] property line," as well as to "replace the
existing easement of record." (Id. at 3:7-12, 16-19 (emphasis added).)
A plain reading of these provisions of the Agreed Order indicates that
the purpose of creating the new metes and bounds description was to
replace the descriptions of the Easement in the deeds of records which do
not necessarily match Kovar Lane, including the paved portion and the
Disturbed Area as used by the parties, with a legal description of the latter,
which would then be committed to corrective deeds intended to pass with
any future conveyances of the parties' properties. Clearly, this was not
14
done. As a result, Defendant has not complied with the first requirement of
the Agreed Order.
Turning to the second requirement, there was no testimony or
evidence at trial concerning Jim Potter's involvement, or lack thereof, with
Policelli's surveying work and/or Defendant's new pavement installation.
Therefore, Plaintiffs, who have the burden of proof, have not introduced any
evidence proving that Defendant violated the second requirement.
As for the third requirement, regarding the K turn, there was no
evidence that Defendant has disallowed any emergency vehicles or delivery
vehicles from performing a K turn that, if necessary, crosses the boundaries
of the Easement onto Defendant's property. Similarly, there is no evidence
that Defendant has prevented anyone from using the Easement to flee an
emergency. The Court agrees with Defendant's argument that nothing in
the Agreed Order required him to, as Plaintiffs argue, '\\dimension a K turn."'
(Def.'s Br. at 3; see Pis.' Br. at 6-9.) As a result, the third requirement of
the Agreed Order has not been violated based upon the record before the
Court.
Skipping ahead to the fifth requirement, there is no dispute that the
barriers that once existed on the Easement are no longer present.
Therefore, the fifth requirement has been complied with. As for the ditch
seen in Exhibit P-5, nothing in the Agreed Order specifically prohibited
Defendant from creating it. Still, even assuming, arguendo, that the
15
creation of the ditch was an act of contempt, said ditch has been removed.
This being a civil contempt proceeding, no purpose would be served by
holding Defendant in contempt for conduct that has been remedied.
That brings the Court to the fourth requirement of the Agreed Order.
The Court first notes that regardless of whether or not the Disturbed Area
was, at the time of its excavation in November of 2013, part of the
Easement as described in the relevant deeds, Defendant nonetheless agreed
to repave it. The testimony and photographic evidence demonstrate that
the Disturbed Area spanned the entire south-north portion of the Easement
and also, to some extent, wrapped around the soft curve, ending at the
point in Exhibit P- 7 where the dirt road changes color. (See N. T.,
10/13/2015, at 22:14-24:5, 60:2-61:2; Ex. P-7.) Abbott's testimony made
clear that the \\gray" section of dirt depicted in the lower half of Exhibit P-7
had already been excavated prior to May of 2015. (See N.T., 10/13/2015,
at 61:17-64:9.) A review of Exhibits P-8, P-9, P-10, and P-11 reveals that
the pavement installed on August 27, 2015, did not fully cover the Disturbed
Area as it existed as of March 17, 2015.
Furthermore, in the Agreed Order, Defendant agreed that he would
"pave the soft curve as well as the" Disturbed Area. (N.T., 3/17/2015, at
6:7-9 (emphasis added).) Thus, in addition to the Disturbed Area,
Defendant agreed to repave any portion of the turn where the Easement
transitions from its west-east segment to its south-north segment such that
16
a vehicle traversing the Easement is able to make a paved turn. Exhibits P-
10 and P-11 reveal that Defendant unquestionably failed to comply with that
part of the Agreed Order. In view of Exhibits P-2 and P-3, which depict the
state of the soft curve as it existed prior to November 2013, Defendant's
argument that the thin, curved portion of new pavement shown in Exhibits
P-10 and P-11 constitutes a soft curve that complies with the Agreed Order
is, at best, disingenuous. For all of these reasons, because Defendant
agreed to repave the entire Disturbed Area and to pave a soft curve and
failed to do so, the fourth requirement of the Agreed Order was violated.
Further, it is clear that Defendant had notice of the repaving
requirement, which he agreed to on the record. In addition, Defendant had
better notice than anyone of what constituted the Disturbed Area, as he was
the one who created it. It is also clear that Defendant's violation of the
requirement was volitional. 3 The question, then, is whether Defendant's
failure to repave the entire Disturbed Area and to pave a realistic soft curve
was done with wrongful intent. The Court finds that it was. Defendant's
interactions with Jason Abbott, as detailed in credible testimony, his legal
arguments, most of which attempt to usurp the Court's role in determining
what is and what is not the "scope" of the underlying Complaint, the Agreed
3
Volition is "1. The ability to make a choice or determine something. 2. The act of
making a choice or determining something. 3. The choice or determination that someone
makes." BLACK'S LAW DICTIONARY (10th ed. 2014). Even though it was not Defendant himself
who installed the pavement on August 7, 2015, Defendant knew that the paving would not
cover the entire Disturbed Area and a soft curve but chose to allow it to be paved that way
nonetheless.
17
Order, and the instant Petition, (see generally Def.'s Br.), his spiteful
attitude towards his obligation to allow Plaintiffs to access their property
through the Easement, (see, e.g., N.T., 10/13/2015, at 124: 13-126: 17,
130:2-4, 137:6-138: 15), and even his in-courtroom behavior, which was
often confrontational and evasive, (see, e.q., id. at 106:3-11, 121:24-122:3,
122:15-23, 124:20-21, 127:20-25, 129:14-17, 129:23-130:9, 132:3-10,
133: 17-19, 138:5-9, 142:6-10), all make clear that Defendant's intent
throughout these proceedings has been, primarily, to interfere with Plaintiffs'
property rights and to frustrate what the Court and all involved parties
hoped would be an amicably-carried-out settlement agreement. For all of
these reasons, the pavement installed by Defendant on August 27, 2015, is
unacceptable and places him in civil contempt of court.
Finally, Plaintiffs argue that Defendant's excavation of a paved portion
of the west-east section of Kovar Lane in May 2015, as depicted in Exhibits
P-6 and P-7, constitutes a violation of the Agreed Order. More specifically,
Plaintiffs argue that "[a]lthough it is true that the [Agreed] Order does not
explicitly state that Defendant may not rip up new [pavement], the fact that
Defendant agreed to replace the entire [Disturbed Area] certainly
demonstrates that the intent of the settlement agreement and [Agreed]
Order was to recreate the preexisting paved portion of Kovar Lane." (Pis.'
Br. at 3-4.) Plaintiffs go on to argue that "[t]he agreement will be frustrated
if an additional 70 feet of Kovar Lane-serving only [Plaintiffs' Property] is
18
allowed [to be] ripped up by" Defendant. (Id. at 4.) Plaintiffs' argument
itself, while plausible, states why the Court cannot hold Defendant in
contempt for the May 2015 excavation--the Agreed Order "does not
explicitly state that Defendant may not rip up new [pavement]." (Id. at 3.)
It is settled that "in order to punish a person for contempt, a 'plausible
reading' [of the Court's Order] is not enough. Carborundum Company v.
Combustion Engineering, Inc., 263 Pa. Super. 1, 396 A.2d 1346, 1349
(1979). All inferences and ambiguities in the underlying order must be
construed in favor of the alleged contemnor." Lachat v. Hinchcliffe, 769
A.2d 481, 490 (Pa. Super. 2001). Thus, while Defendant's actions are
certainly vindictive, are most likely prohibited by applicable law, see Taylor
v. Heffner, 58 A.2d 450, 454 (Pa. 1948), and certainly may entitle Plaintiffs
to legal relief by way of an amended complaint or a new action, the Court is
without authority to hold Defendant in "contempt of court" for them.
WHEREFORE,
the Court enters the following:
19
C) I
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IN THE COURT OF COMMON PLEAS OF ·,i ..,. _ 'TJ
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NORTHAMPTON COUNTY, PENNSYLVANIA ({.)
CIVIL ACTION
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MICHAEL LIPESKY and LESLIE DELL, )
Plaintiffs ) No. C-48-CV-2014~j2~Q 1~~:
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v. )
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JAM ES A. MAHAN, )
Defendant )
ORDER OF COURT
AND NOW, this 29th day of January, 2016, following a hearing held on
October 13, 2015, Plaintiffs' Petition for Contempt, filed on June 17, 2015, is
hereby GRANTED, in part. Defendant James A. Mahan is hereby held in
civil contempt and is fined in the amount of $5,000.00, payable to Plaintiffs,
as a sanction for the contempt.
Defendant may purge himself of the contempt, and from payment of
the fine, by completing the following two requirements within 120 days:
1. Defendant shall cause Scott Policelli, in consultation with the
parties and/or their counsel, to draft a metes and bounds description of the
paved Kovar Lane, from River Road to the northern end of Plaintiffs'
property, as it existed prior to Defendant's excavation of portions of the
1
pavement in November 2013 and May 2015 Cdisturbed areas"), to include
the disturbed areas and to constitute a new legal description of the
easement granted to Plaintiffs, although not necessarily matching the
location of the easement of record, to be recorded in corrective deeds
intended to replace the existing legal description of the easement in the
parties' deeds, with the intent of this provision being to identify the location
of the easement as used by the parties as of November 2013, not
necessarily the easement of record; and
2. Defendant shall repave that portion of the pavement excavated
in November 2013 in the same location that the pavement existed as of
November 2013.
Defendant shall pay Plaintiffs the sum of $1,777.50 for attorney's fees.
BY THE COURT:
J.
2