Lipesky, M. v. Mahan, J.

• Court: Superior Court of Pennsylvania
• Decided: October 14, 2016
• Docket: 706 EDA 2016
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

':J IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PENNSYLVANIA CIVIL ACTION .. I

ff ;2;:1? : <, Pl ·o ~---··· MICHAEL LIPESKY and LESLIE DELL, ) .\) \··.,,.

Plaintiffs ) No. C-48-CV-lOtli-3210 ) v. ) ) 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 Circulated 10/07/2016 10:57 AM

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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

>,.) I • ·::) ) .. ,_: .'<_~. C) - .... ; 1) :·;· ~~ ~-"·;

IN THE COURT OF COMMON PLEAS OF ·,i ..,. _ 'TJ i. ('\) NORTHAMPTON COUNTY, PENNSYLVANIA ({.)

CIVIL ACTION (,) ::r) ~::.J MICHAEL LIPESKY and LESLIE DELL, ) Plaintiffs ) No. C-48-CV-2014~j2~Q 1~~: ;> rr: (1:> ) v. ) ) 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.