Miller, A. v. Mahan, J.

J-S31032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALLEN MILLER AND JANET H. MILLER : IN THE SUPERIOR COURT OF
FAMILY TRUST AND EDWARD T. OTT : PENNSYLVANIA
AND NANCY O. OTT, HIS WIFE :
DAVID L. OTT AND LISA R. OTT, HIS :
WIFE ROBERT G. OTT PAUL R. OTT :
AND LORI J. OTT, HIS WIFE AND :
GREGORY D. CONKLIN :
:
: No. 1158 EDA 2022
v. :
:
:
JAMES A. MAHAN :
:
Appellant :
Appeal from the Order Entered March 25, 2022
In the Court of Common Pleas of Northampton County Civil Division at
No(s): C-48-CV-2019-09512
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 13, 2022
Appellant, James A. Mahan, appeals from the March 25, 2022, order1
entered in the Court of Common Pleas of Northampton County finding him in
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* Former Justice specially assigned to the Superior Court.
1 Appellant filed his notice of appeal from the trial court’s April 14, 2022, order,
which denied his motion for reconsideration. However, the appeal properly
lies from the trial court’s March 25, 2022, contempt order, which was a final
and appealable order. See Lachat v. Hinchcliffe, 769 A.2d 481, 488
(Pa.Super. 2001) (holding where sanctions are imposed by the trial court an
order declaring a party to be in contempt is appealable). See also Foulk v.
Foulk, 789 A.2d 254, 258 (Pa.Super. 2011) (en banc) (holding where a
contempt order imposes sanctions, as well as contains a purging condition,
the order is still final so long as no further court order be required before the
sanctions take effect). We have changed the caption accordingly.
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contempt and directing him, inter alia, to pay a fine of $10,000.00 to Appellees
Miller, $10,000.00 to Appellees Ott, and $10,000.00 to Appellee Conklin,2 as
well as attorney’s fees to Appellees in the amount of $3,717.00. After a careful
review, we affirm.
The relevant facts and procedural history are as follows: Appellees own
parcels of land on Kovar Lane in Upper Mount Bethel Township, Pennsylvania.
Trial Court Opinion, filed 2/10/21, at 1-3. Their properties are landlocked
without direct access to a public road. Id. at 3. They all use a private road,
Kovar Lane, to access their individual properties. Appellant also owns a parcel
of land on Kovar Lane, which he purchased at a sheriff’s sale in 2010. Id.
On October 10, 2019, Appellees filed a civil complaint against Appellant
averring that, on or about August 10, 2019, Appellant began significant
construction on a portion of Kovar Lane, thereby blocking the road with
construction vehicles for extended periods of time. Appellees indicated
Appellant claimed he was the sole owner of Kovar Lane, and Appellant installed
a gate across Kovar Lane, which would prevent Appellees from having ingress
and egress to their properties. Appellees sought ejectment and asked the trial
court to quiet title, as well as sought to enjoin Appellant from impeding their
ability to use the private road known as Kovar Lane.
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2 “Appellees Miller” include Allen Miller and Janet H. Miller Family Trust;
“Appellees Ott” include Edward T. Ott and Nancy O. Ott, his wife, David L. Ott
and Lisa R. Ott, his wife, Robert G. Ott, and Paul R. Ott and Lori J. Ott, his
wife; and “Appellee Conklin” includes Gregory D. Conklin.
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On October 22, 2019, the trial court entered an interim order granting
Appellees’ request for a preliminary injunction. Specifically, the trial court
indicated that, following a hearing, the parties agreed to the entry of a
preliminary injunction whereby Appellant would not erect or close any gate
across Kovar Lane or otherwise place upon Kovar Lane any structures that
would impede Appellees’ access to their properties.
On February 25, 2020, Appellant filed an answer with new matter and a
counterclaim seeking to eject Appellees from and quiet title to Kovar Lane in
his favor. The matter proceeded to a non-jury trial, and by opinion and order
entered on February 10, 2021, the trial court ruled in favor of Appellees on all
counts in their complaint and Appellant’s counterclaim.
Relevantly, in its opinion, the trial court found that Kovar Lane, which
begins at a public road known as River Road, has existed since at least the
1950’s or 1960’s (“Old Kovar Lane”); however, in 2015 or 2016, Appellant
began to unilaterally reroute Kovar Lane (“New Kovar Lane”). Id. at 5.
The trial court determined Old Kovar Lane originally “led east through
[Appellant’s] property to a corner where it took a [] left turn and continued
north, running approximately parallel to the Delaware River.” Id. The road
was originally a one-lane road that was partially pavement and partially
gravel. Id. While there was no formal, recorded description of the metes and
bounds of Old Kovar Lane, Appellant’s deed and chain of title, as well as
Appellees’ deeds and chains of title, referenced Kovar Lane. Id. at 5-6. The
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trial court noted Appellees’ properties “have express easements through
[Appellant’s] property over Old Kovar Lane to access their properties.” Id. at
6.
In 2015 or 2016, Appellant began to make changes to the original Kovar
Lane, thus unilaterally rerouting Kovar Lane so that it “turns off from the east-
west portion of Old Kovar Lane approximately halfway between River Road
and the [] left turn.” Id. “New Kovar Lane then arches in front of [Appellant’s]
home and rejoins Old Kovar Lane at the northern edge of [Appellant’s]
property.” Id. When Appellant rerouted Kovar Lane, he made the north-
south portion of Old Kovar Lane impassible by digging a large trench through
it, and the trench is located south of where Old Kovar Lane crosses what is
now Appellant’s yard. Id.
The trial court found Appellees’ properties are located to the north of
Appellant’s property, and Appellees did not consent to the relocation of Kovar
Lane. Id. Moreover, the trial court found that, in 2019, Appellant built a new
bridge to Kovar Lane from River Road, and, thus, the entrance to New Kovar
Lane is now approximately ten to twenty feet away from the road’s original
location. Id. at 7. Appellees did not consent to the construction of the new
bridge or entrance, and during the construction of the bridge, Appellees’ ability
to ingress and egress was restricted “on and off” for two months. Id. at 8.
In 2019, Appellant installed a gate on the east-west section of Old Kovar
Lane just before the left turn onto New Kovar Lane. Id. This gate is on
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Appellant’s property, and it could potentially be used to close off full access to
Kovar Lane, thus restricting Appellees’ access to their properties. Id.
Based on its findings, the trial court ruled the property of each Appellee
has an express easement for the use of Old Kovar Lane in order to access his
or her landlocked property, with all of the rights and responsibilities that such
entails. Id. at 12-13. Accordingly, the trial court held Appellant may not
impede Appellees’ use of their easements for Old Kovar Lane. Id. at 13.
Moreover, the trial court held Appellant, as owner of the servient estate,
“had no right to unilaterally move the footprint of the easements.” Id. “Use
of New Kovar Lane, the new bridge, and the new entrance is not what
[Appellees’] easements entitle them to.” Id. Thus, the trial court determined
Appellant frustrated Appellees’ use of their easements by “making the original
Kovar Lane and its entrance impassible.” Id. at 14.
The trial court ruled Appellant must restore the original entrance to, as
well as the north-south portion of, Old Kovar Lane so that Appellees may use
the easements expressly granted to them in their chains of title. Id. The trial
court held “[Appellant] will be enjoined from altering or blocking the
easements.”3 Id.
In its February 10, 2021, order, the trial court specifically held:
1. [Appellees] have express easements, by virtue of their chains
of title, to use the roadway known as Kovar Lane, as described
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3 As to Appellant’s counterclaim, the trial court held he could not prevail on
his ejectment action or claim to quiet title to Kovar Lane. Id. at 14-15.
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as Old Kovar Lane in the [trial] court’s [opinion], to access their
properties;
2. [Appellant] is enjoined from blocking, impeding, or in any way
obstructing [Appellees’] use of Kovar Lane to access their
properties;
3. [Appellant] shall restore the north-south portion of Kovar Lane
to its prior condition, passable by vehicle, within ninety (90)
days and at his own expense. Until then, [Appellees] may
continue to use the altered footpath of Kovar Lane, described
as New Kovar Lane in the [trial] court’s [opinion], to access
their properties;
4. [Appellant] shall restore the entrance of Kovar Lane at River
Road to its prior condition within ninety (90) days at his own
expense. Until then, [Appellees] may continue to use the
altered entrance to Kovar Lane;
5. [Appellant] is not required to remove the gate on his property
but may not close it or otherwise obstruct [Appellees’] access
to Kovar Lane; and
6. [Appellees] are entitled to court costs.
Trial Court Order, filed 2/10/21, at 2.
On February 19, 2021, Appellant filed a post-trial motion, to which
Appellees filed an answer.
While Appellant’s post-trial motions were pending, on May 6, 2021,
Appellees filed a petition for contempt against Appellant. Specifically,
Appellees averred that, although Appellant took some steps to restore Old
Kovar Lane, Appellant did not restore the “soft” curve to Kovar Lane where
Appellees make a left-hand turn after entering Kovar Lane from River Road.
They also averred Appellant failed to pave or gravel portions of Old Kovar Lane
to restore it to its original condition.
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Appellees noted Appellant placed a gate across a portion of New Kovar
Lane such that Appellees have been unable to use New Kovar Lane while
Appellant makes the necessary renovations to Old Kovar Lane. Appellees
contended Appellant’s actions do not comply with the trial court’s February
10, 2021, order, and thus, they sought an order of contempt.
On May 25, 2021, Appellant filed a reply to Appellees’ petition for
contempt wherein he denied Appellees’ averments. He further argued
Appellees’ petition for contempt was premature since his post-trial motions
were, at that time, still pending such that he had no obligation to restore Old
Kovar Lane to its original condition.
By order entered on July 19, 2021, the trial court denied Appellant’s
post-trial motion, and on August 2, 2021, Appellant filed an appeal to this
Court. Additionally, on this same date, Appellant filed in the trial court a
petition for supersedeas pending appeal.
On August 5, 2021, the trial court entered an order indicating it was
holding Appellees’ contempt petition in abeyance pending disposition of
Appellant’s appeal, and after the appeal was decided, Appellees could place
the case on a non-jury trial list for disposition of the contempt petition.
Further, the trial court specifically provided that until Appellant’s appeal
concluded:
1. [Appellant] shall not block, impede, or in any way obstruct
[Appellees’] use of New Kovar Lane, as that lane is defined in
the [trial] court’s [Opinion] filed on February 10, 2021; and
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2. [Appellant] shall not block, impede, or in any way obstruct
[Appellees’] use of the altered entrance to Kovar Lane, as
defined in the [trial] court’s [Opinion] filed on February 10,
2021.
Trial Court Order, filed 8/5/21, at 2.
On August 18, 2021, Appellant voluntarily discontinued his August 2,
2021, appeal, which he had filed in this Court. Accordingly, Appellees
requested that their contempt petition be placed on the trial court’s non-jury
trial list for a hearing.
On August 31, 2021, Appellant filed a “Motion for the Enlargement of
Time as to the Court Verdict and Order of February 10, 2021.” Therein,
Appellant indicated that, as a practical matter, he had been unable to comply
fully with the trial court’s February 10, 2021, order as it related to restoring
the original location and condition of Old Kovar Lane. He noted that Appellees
filed their contempt petition while Appellant’s post-trial motions were pending.
He also noted the trial court’s August 2, 2021, order operated as a stay
regarding Appellant’s obligation to restore Old Kovar Lane. Appellant averred
that, although he had been unable to fully comply with the trial court’s
February 10, 2021, order as it related to restoring the original location and
condition of Old Kovar Lane, he fully intended to do so.
Thus, Appellant sought an extension of time to comply with the trial
court’s February 10, 2021, mandate that he “restore the entrance of Kovar
Lane at River Road to its prior condition within ninety (90) days,” and “restore
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the north-south portion of Kovar Lane to its prior condition…within ninety (90)
days[.]” Appellant’s Motion for Enlargement of Time, filed 8/31/21, at 3.
By order entered on September 29, 2021, the trial court granted
Appellant’s request for an enlargement of time indicating:
1. [Appellant] shall restore the entrance of Kovar Lane at River
Road to its prior condition within 180 days at his own expense.
Until then, [Appellees] may continue to use the altered
entrance to Kovar Lane;
2. [Appellant] shall restore the north-south portion of Kovar Lane
to its prior condition, passable by vehicle, within 180 days and
at his own expense. Until then, [Appellees] may continue to
use the altered footpath of Kovar Lane, described as New Kovar
Lane in the [trial] court’s [opinion] filed on February 10, 2021,
to access their properties; and
3. Pending further order of court, [Appellant] may not close the
gate on his property or otherwise obstruct [Appellees’] access
to Kovar Lane and/or New Kovar Lane.
Trial Court Order, filed 9/29/21, at 2. The trial court’s order indicated the
hearing on Appellees’ contempt petition was scheduled for October 15, 2021.
At the October 15, 2021, contempt hearing, Appellee Allen Miller (“Mr.
Miller”) testified he resides in a house on Kovar Lane, and he is a plaintiff in
the underlying civil suit against Appellant. Mr. Miller testified that, before
Appellant created New Kovar Lane, he accessed his property on Old Kovar
Lane, which he described as follows:
[It was] a macadam road that came off of River Road and
was an L-shape, whereas we came off of River Road we drove east
toward the river. Before we got to the river, there was a soft
curve that took us in a northerly direction in front of six houses
that were there, and Kovar Lane had ended at our property.
N.T., 10/15/21, at 8.
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Mr. Miller noted that Old Kovar Lane had macadam on the road after the
soft curve up to the property of Appellee Gregory D. Conklin (“Mr. Conklin”),
and from that point to Mr. Miller’s house, the road was gravel. Id. at 11.
Mr. Miller testified that Appellant unilaterally “relocated” the soft curve,
which was on Old Kovar Lane. Id. at 9-10. He noted Appellant also made
portions of Old Kovar Lane impassable by putting deep trenches across the
road. Id. These actions led to Appellees filing the October 10, 2019,
complaint in the underlying civil matter. Id. at 10.
Mr. Miller testified the trial court, as part of its February 10, 2021, order,
directed Appellant to restore Old Kovar Lane back to its original condition, and
thereafter, Appellant began to restore Old Kovar Lane. Id. at 11. In April of
2021, Appellant advised Mr. Miller he was finished restoring Old Kovar Lane
to its original condition, and he closed the gate to New Kovar Lane, thus
preventing Appellees from using New Kovar Lane. Id. at 11, 30-31.
Mr. Miller specifically testified:
From early April [of 2021], when [Appellant] claimed that he had
restored Old Kovar Lane, he had that gate [across New Kovar
Lane] closed for the better part of almost six months. There was
a short period of approximately a week when it was open and we
were able to use it, and then we’ve been able to use it the last
two weeks. Other than that, that gate [across New Kovar Lane
has] been closed.
Id. at 31.
Mr. Miller testified that, although Appellant indicated in April of 2021
that he was finished restoring Old Kovar Lane, the road “was not put in the
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original place, and it did not have a soft curve and it did not have macadam.”
Id.
Mr. Miller testified that, after Appellant claimed to be finished restoring
Old Kovar Lane, the road had large potholes, some of which were four to six
inches deep and made cars “bottom out.” Id. at 12. He testified Old Kovar
Lane was “absolutely not” in the same condition as it had been prior to
Appellant unilaterally creating New Kovar Lane. Id. He noted Appellant failed
to restore the macadam and gravel to Old Kovar Lane resulting in extensive
mud, which created “wear and tear on the cars[.]” Id. at 13-14. He also
testified Appellant placed a large pile of gravel in the path of where Old Kovar
Lane originally existed. Id. at 14, 29.
Mr. Miller testified that, in August of 2021, Appellant placed large rocks
along the side of the renovated Old Kovar Lane in the area of the disputed
curve, thus narrowing the curve, as well as in the path of where Old Kovar
Lane should have been located in front of Mr. Conklin’s property. He noted the
rocks were large enough that Appellant used a front-end loader to place the
rocks. Id. at 21. Mr. Miller indicated that, since the large rocks were placed
by Appellant in August of 2021, it was evident that Appellant was not intending
to relocate Kovar Lane to its original location in response to the trial court’s
February 10, 2021, order. Id. at 20-21, 28.
Mr. Miller noted the rocks placed in front of Mr. Conklin’s property forced
Mr. Miller to gain access to his property by driving to the left of the stones and
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onto Mr. Conklin’s property, which is not where Old Kovar Lane had been
located. Id. at 22. He specifically testified the “rocks prohibited [him] from
accessing [his] property in the manner in which [he] did from when [he]
bought the property[.]” Id. at 24. He noted the rocks caused a “problem”
with him safely coming to and going from his property. Id. at 26.
Mr. Miller testified a portion of the renovations made to Old Kovar Lane,
which Appellant completed after the trial court’s February 10, 2021, order,
placed the road close to a utility pole and guy wire. Id. at 35. “[T]o [now]
make [the] turn, which is a right angle, [the driver] come[s] within a foot or
two of that guy wire and utility pole. [The driver has] to be very careful.” Id.
He noted this portion of the road, when it was the original Old Kovar Lane,
had a “soft curve” about six to eight feet away from the utility pole and wire;
however, Appellant’s renovations made in response to the court’s order made
the road into a “right angle” coming within a foot or two of the pole and wire.
Id. at 35-36. He noted the “soft curve is necessary to get trailers with boats
and whatnot in and out, because you can’t navigate pulling a trailer around
this sharp right angle. You need the soft curve. I mean that’s why it was
there to begin with.” Id. at 37.
Mr. Miller testified that, because Appellant closed the gate on New Kovar
Lane and claimed to be done restoring Old Kovar Lane, Mr. Miller was forced
to gain access to his property through dirt, mud, and potholes, while swerving
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around large rocks. Id. at 31. Mr. Miller noted Appellant’s restoration project
of Old Kovar Lane made access to his property difficult. Id. at 45.
On cross-examination, Mr. Miler indicated that, since the trial court
entered its order on February 10, 2021, any steps Appellant has made to
restore Old Kovar Lane to its original condition has not resulted in a road
“passable by vehicle.” Id. at 61. Specifically, Mr. Miller testified that,
although Appellant told him he was finished restoring Old Kovar Lane, “it’s not
really passable.” Id. at 61-62. In this vein, Mr. Miller indicated that, while
he has been able to drive on what Appellant refers to as the restored Old
Kovar Lane, he has “bottomed out” several times because of the condition of
the road. Id. at 62. In any event, he noted Appellant never relocated Old
Kovar Lane to its precise original location as directed by the trial court’s
February 10, 2021, order. Id.
On re-direct examination, Mr. Miller clarified that, after the February 10,
2021, trial court order, Appellant forced him to use the renovated Old Kovar
Lane, which was not placed in its original condition. Specifically, he noted
that, after Appellant indicated he was done renovating Old Kovar Lane, he
closed the gate so that Mr. Miller no longer had access to New Kovar Lane.
Id. at 74-75. Thus, he had “no choice” but to traverse the “restored” Old
Kovar Lane, which was not in a passable condition. Id.
He noted Appellant did not open the gate, which ran across New Kovar
Lane, until September 29, 2021, when the trial court gave Appellant additional
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time to make various court-ordered renovations to Old Kovar Lane. Id. After
Appellant opened the gate on September 29, 2021, Mr. Miller began to use
New Kovar Lane because the renovated Old Kovar Lane is “a mess, it’s hard
on the cars, and it’s not a real viable road.” Id. at 75.
Mr. Conklin was called as a witness by Appellant. He testified he owns
two parcels of land, which are on opposite sides of Old Kovar Lane. Id. at 78.
He acknowledged that, during the spring and summer of 2021, he allowed
rocks to be placed on his property. Id. He noted the rocks run alongside “the
old side of Kovar Lane” on his property. Id. at 79.
On cross-examination, Mr. Conklin testified Appellant asked him for
permission to place the stones on Mr. Conklin’s property along Kovar Lane.
Id. at 83. Mr. Conklin indicated he gave Appellant permission; however, after
the stones were placed, he asked Appellant to remove them, and Appellant
refused. Id. at 86-87.
Mr. Conklin testified Appellant placed the stones “right square in the
middle of where Old Kovar Lane used to be.” Id. at 92. He admitted the
rocks prevent Mr. Miller from accessing his property the way he used to before
Appellant unilaterally made any changes to Old Kovar Lane. Id. at 93. Mr.
Conklin testified he is unable to remove the stones since they are heavy. Id.
at 88. He noted Appellant used heavy equipment to place the stones. Id.
At the conclusion of the hearing, by order and opinion entered on March
25, 2022, the trial court found Appellant in civil contempt and held that, within
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ninety days, Appellant must pay a fine of $10,000.00 to Appellees Miller,
$10,000.00 to Appellees Ott, and $10,000.00 to Appellee Conklin. The trial
additionally held the following:
[Appellant] may purge himself of the contempt and
sanctions by conveying express easements to [Appellees] from
River Road over the new bridge entrance to Old Kovar Lane, over
Old Kovar Lane to New Kovar Lane, and over New Kovar Lane to
where Old Kovar Lane ends,…to access their properties. Said
easements must contain a metes and bounds description, in
recordable form, at [Appellant’s] expense. Alternatively,
[Appellant] may purge himself of the contempt and sanctions by
hiring, at his own expense, a third-party contractor, chosen by
[Appellees], to bring Old Kovar Lane into compliance with the
[trial] court’s Order of February 10, 2021, within thirty (30) days.
In any event, [Appellant] shall fully comply with the [trial]
court’s Order of February 10, 2021, and shall:
1. Reinstall the soft curve at the portion of Old Kovar
Lane where [Appellees] are required to make a
left-hand turn from River Road;
2. Restore Old Kovar Lane to its original condition;
3. Permit [Appellees] to use New Kovar Lane until
easements have been conveyed, the restoration
has been completed to [Appellees’] satisfaction, or
pending further order of court;
4. [Appellant] shall pay [Appellees] the sum of
$3,717.00 for attorney’s fees within thirty (30)
days;
5. [Appellant] shall remove the gate he installed on
the east-west section of Old Kovar Lane just before
the left turn onto New Kovar Lane within thirty (30)
days; and
6. Within fourteen (14) days, [Appellant] shall remove
all boulders and rocks placed on or adjacent to Old
Kovar Lane since February 10, 2021.
Trial Court Opinion, filed 3/25/22, at 2-3.
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On April 4, 2022, Appellant filed a motion for reconsideration and to
vacate the contempt order, as well as a motion for supersedeas. By order
entered on April 14, 2022, the trial court granted, in part, and denied, in part,
Appellant’s motion. Specifically, the trial court denied Appellant’s request for
reconsideration or to vacate the contempt order; however, the trial court
granted Appellant’s request for supersedeas, in part, indicating it was
“staying” the March 25, 2022, contempt order pending resolution of a timely
appeal.
However, the trial court held that in the interim:
1. [Appellant] shall permit [Appellees] to use New Kovar Lane
pending further order of court;
2. [Appellant] shall not close the gate he installed on the east-
west section of Old Kovar Lane just before the left turn onto
New Kovar Lane; and
3. Within fourteen (14) days, [Appellant] shall remove all
boulders and rocks placed on or adjacent to Old Kovar Lane
since February 10, 2021.
Trial Court Order, filed 4/14/22, at 2.
Appellant filed a timely appeal to this Court on April 22, 2022. The trial
court directed Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant
timely complied, and the trial court filed a responsive Rule 1925(a) opinion.
On appeal, Appellant sets forth the following issue in his “Statement of
Questions Involved” (verbatim):
A. Whether the trial court Order and Opinion of March 25, 2022,
constitute a fundamental error of law and/or an abuse of
discretion by holding Appellant in contempt?
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Appellant’s Brief at 4 (suggested answer omitted).
On appeal, Appellant contends the trial court’s finding of civil contempt
is not supported by the record.4 Specifically, he contends “any potential
technical deviation” from the trial court’s February 10, 2021, order was neither
volitional nor done with wrongful intent. See Appellant’s Brief at 25. In
essence, Appellant challenges the sufficiency of the evidence adduced at the
hearing to sustain the trial court’s finding of contempt.
“This Court will not reverse or modify a final [order of contempt] 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.” Stahl v. Redcay, 897 A.2d 478, 488 (Pa.Super. 2006)
(citations, quotation, and quotation marks omitted).
[In proceedings for civil contempt,] the general rule is that
the burden of proof rests with the complaining party to
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4 Both parties, as well as the trial court, indicate the trial court’s finding of
contempt in this case was civil contempt as opposed to criminal or indirect
criminal contempt. We agree. See Lachat, supra (holding civil contempt is
remedial in nature and factors pointing to civil contempt include the
complainant is a private person, the contempt petition is filed as a continuation
of the original action, the court’s finding of contempt affords relief to a private
party, the relief requested is primarily for the benefit of the complainant, and
the acts of contempt are primarily civil in character). It is clear from the
record the trial court’s dominant purpose for the contempt order was to coerce
Appellant into compliance with the trial court’s order, which was entered for
the benefit of Appellees in the underlying civil case. Also, Appellant was given
the opportunity to purge himself before imposition of punishment. See In re
Estate of DiSabato, 165 A.3d 987 (Pa.Super. 2017) (holding if contemnor is
given an opportunity to purge himself before imposition of punishment the
contempt order is civil in nature).
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demonstrate, by preponderance of the evidence, that the
defendant is in noncompliance with a court order. However, a
mere showing of noncompliance with a court order, or even
misconduct, is never sufficient alone to prove civil contempt.
To be punished for contempt, a party must not only have
violated a court order, but that order must have been definite,
clear, and specific—leaving no doubt or uncertainty in the mind of
the contemnor of the prohibited conduct.
Lachat, 769 A.2d at 488–89 (citations, quotations, quotation marks, and
emphasis omitted).
“For a person to be found in civil contempt, the moving party must prove
that: (1) the contemnor had notice of the specific order or decree that he
disobeyed; (2) the act constituting the violation was volitional; and[,] (3) the
contemnor acted with wrongful intent.” Gunther v. Bolus, 853 A.2d 1014,
1017 (Pa.Super. 2004). See Lachat, supra.[A] mere showing of noncompliance with a court order, or
even misconduct, is never sufficient alone to prove civil contempt.
If the alleged contemnor is unable to perform and has, in good
faith, attempted to comply with the court order, then contempt is
not proven. The contemnor has the burden to prove the
affirmative defense that he lacks the ability to comply. The
defense of impossibility of performance is available to a party in a
contempt proceeding if the impossibility to perform is not due to
the actions of that party.
Thomas v. Thomas, 194 A.3d 220, 225-26 (Pa.Super. 2018).
Moreover, we defer to the trial court's credibility determinations with
respect to witnesses who have appeared before it because that court has had
the opportunity to observe their demeanor. Habjan v. Habjan, 73 A.3d 630,
644 (Pa.Super. 2013).
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Here, regarding the first prong (i.e., whether Appellant had notice of a
specific order or decree that he disobeyed), the trial court issued an order on
February 10, 2021, which was clear, definite, and specific regarding
Appellant’s obligation to restore the north-south portion of Old Kovar Lane to
its prior condition, passable by vehicle, as well as restore the entrance of Old
Kovar Lane at River Road to its prior condition. See Trial Court Order, filed
2/10/21, at 2; Lachat, supra. Further, the February 10, 2021, order was
clear, definite, and specific regarding Appellant’s obligation to permit
Appellees access to and the use of New Kovar Lane during the renovations to
Old Kovar Lane. See id. Appellant does not dispute he was provided with
notice of the trial court’s order.5
Regarding the second prong, whether Appellant deliberately violated the
trial court’s order, Appellant contends that, while he may not have fully
complied with the trial court’s order to restore Old Kovar Lane to its original
location and condition, such failure does not constitute contempt since he
attempted to do so. He notes the trial court stayed his obligation to fully
renovate Old Kovar Lane pending Appellant’s initial appeal, as well as gave
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5 Moreover, we note that both the trial court’s August 5, 2021, order, which
granted Appellant’s request to stay his obligation to make the renovations to
Old Kovar Lane pending Appellant’s prior appeal, as well as the trial court’s
September 29, 2021, order, which granted Appellant’s request for an
extension of time to make the necessary renovations, specifically provided
that Appellant could not obstruct Appellees’ use of New Kovar Lane while the
renovations to Old Kovar Lane were ongoing. Appellant does not dispute that
he received notice of these orders.
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him an extension of time on September 29, 2021, after he pled that he was
attempting to make the court-ordered renovations but had been unable to
complete them. Accordingly, Appellant avers his noncompliance with the trial
court’s February 10, 2021, order was not volitional.6
However, we conclude Appellant’s argument overlooks the fact the trial
court found Appellant to be in contempt not because he failed to complete the
renovations to Old Kovar Lane but because he prevented Appellees access to
and the use of New Kovar Lane while the renovations to Old Kovar Lane were
ongoing. See Trial Court Opinion, filed 3/25/22, at 7-9. In this vein, the trial
court held Appellant’s blocking of Appellees’ use of New Kovar Lane while
Appellant was making the renovations to Old Kovar Lane was a deliberate and
willful violation of the trial court’s February 10, 2021, order.
Specifically, the trial court held:
[Appellant] has clearly violated paragraphs 3-5 of the [trial]
court’s order by closing the gate on New Kovar Lane while Old
Kovar Lane was not yet restored. As the [trial] court has found
that Old Kovar Lane has not been adequately restored, [Appellant]
has impeded the use of Old Kovar Lane and New Kovar Lane at
the same time, requiring [Appellees] to risk damage to their
vehicles in order to reach their own properties.
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6 To the extent Appellant alternatively argues he made all necessary
renovations to Old Kovar Lane such that he cannot be held in contempt, we
note the trial court found Appellant did not relocate Old Kovar Lane to its
original location as directed by the trial court’s February 10, 2021, order.
Further, the trial court found the condition of the north-south portion of Old
Kovar Lane was not in a passable condition as directed by the trial court’s
order. Mr. Miller’s testimony, which the trial court found credible, clearly
supports the trial court’s findings. N.T., 10/15/21, at 9-31.
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***
[I]t is clear that [Appellant] acted volitionally,…[since] he
took the action of blocking [Appellees’] use of New Kovar Lane
despite not restoring Old Kovar Lane to its original condition by
closing the gate, in direct violation of the [trial] court’s Order.
Id. at 8-9.
We conclude the trial court has not abused its discretion, and the record
supports the trial court’s findings. See Stahl, supra. See also Sutch v.
Roxborough Memorial Hospital, 142 A.3d 38, 68 (Pa.Super. 2016) (holding
that, in order to find contempt, the evidence must establish an intentional
disobedience or an intentional disregard of the lawful process of the court).
Specially, Mr. Miller testified during the contempt hearing that Appellant
did not fully complete the renovations to Old Kovar Lane. He testified
Appellant neither restored Old Kovar Lane to its original location nor restored
the macadam and gravel, thus resulting in Old Kovar Lane being extensively
muddy with large potholes. N.T., 10/15/21, at 12. Mr. Miller testified that,
despite the renovations not being made adequately, Appellant told him in April
of 2021 that he was finished renovating Old Kovar Lane. Id. at 11, 30-31.
Mr. Miller testified Appellant then closed the gate so that Appellees could
no longer use New Kovar Lane. Id. Mr. Miller testified the gate was closed
for the better part of the six months leading up to the contempt hearing. Id.
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The trial court found Mr. Miller’s testimony to be credible.7 See Habjan,
supra.We agree with the trial court that Appellees proved by a preponderance
of the evidence that, although Old Kovar Lane was not in a passable, fully
restored condition or in its original location, Appellant forced Appellees to use
Old Kovar Lane while preventing the use of New Kovar Lane, which was in
direct violation of the trial court’s February 10, 2021, order. Appellant’s
closing of the gate to prevent Appellees from using New Kovar Lane while he
was still renovating Old Kovar Lane was a volitional violation of the trial court’s
order. See Roxborough, supra; Gunther, supra.Regarding the third prong, whether Appellant acted with wrongful
intent, Appellant contends he acted in good faith at all times, and he had no
intent to violate the trial court’s February 10, 2021, order.
[A] party’s wrongful intent can often be inferred from
circumstantial evidence. [A] party’s wrongful intent can be
inferred where it is clear from the language of the court order that
the conduct in question violates the court order and the evidence
shows that the contemnor knowingly failed to comply. [W]hen
making a determination regarding whether a [party] acted with
wrongful intent, the court should use common sense and consider
context, and wrongful intent can be imputed to a [party] by virtue
of the substantial certainty that his actions will violate the court
order.
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7 Appellant contends the trial court erred in finding the testimony of Mr. Miller
to be credible. See Appellant’s Brief at 30. However, it is well-settled that
determinations regarding the credibility of the witnesses is within the trial
court’s province. See Habjan, supra.- 22 -
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Jordan v. Pennsylvania State University, 276 A.3d 751, 766-67
(Pa.Super. 2022) (quotation marks and quotations omitted).
Here, the trial court determined Appellees demonstrated by a
preponderance of the evidence that Appellant acted with a wrongful intent
when he closed the gate to prohibit Appellees from using New Kovar Lane
while the renovations to Old Kovar Lane were ongoing. Specifically, the trial
court concluded the language of its order was clear, yet Appellant intentionally
closed the gate to New Kovar Lane while knowing Old Kovar Lane was in
“shoddy” condition. Trial Court Opinion, filed 3/25/22, at 8.
Finding Mr. Miller’s testimony to be credible, the trial court determined
Appellant impeded the safe use of Old Kovar Lane by failing to restore it to a
passable condition while at the same time closing the gate to New Kovar Lane.
Id. Thus, Appellees “risk[ed] damage to their vehicles in order to reach their
own properties” due to Appellant’s actions. Id.We find no abuse of discretion and conclude the trial court’s findings are
supported by the record. See Stahl, supra. Based on the evidence, the trial
court properly inferred Appellant’s wrongful intent from the circumstantial
evidence, and common sense dictates Appellant was aware that preventing
Appellees from using New Kovar Lane while he was still renovating Old Kovar
Lane was “substantially certain” to violate the trial court’s order. See Jordan,
supra.
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For all of the foregoing reasons, we conclude the trial court properly
found Appellant to be in contempt of the trial court’s February 10, 2021, order,
and thus, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2022
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