Lipesky, M. v. Mahan, J.
706 EDA 2016
| Pa. Super. Ct. | Oct 14, 2016Background
- Plaintiffs Michael Lipesky and Leslie Dell own a parcel reached only by a 12-foot easement (Kovar Lane) across defendant James Mahan’s property; Mahan excavated and blocked portions of that easement in 2013 and again in 2015.
- Parties negotiated a March 17, 2015 settlement adopted as an Agreed Order: among other things Mahan agreed to (a) obtain a metes-and-bounds description of the easement (including the “soft curve”), (b) repave the disturbed area and soft curve, (c) remove barriers, and (d) permit certain turning maneuvers for deliveries/emergencies.
- Plaintiffs filed a contempt petition (June 17, 2015) after further excavation and a ditch; a conference on Sept. 14, 2015 placed subsequent events (including August 27, 2015 paving by Mahan) at issue for the October 13 contempt hearing.
- Trial court found Mahan in civil contempt for failing to repave the entire disturbed area and failing to create a proper soft curve; imposed a $5,000 fine and awarded plaintiffs $1,777.50 in attorney’s fees; Mahan was given 120 days to comply to purge contempt.
- Mahan (pro se) appealed the contempt order and award of fees; plaintiffs cross‑appealed seeking additional fees for responding to Mahan’s reconsideration motion. The Superior Court affirmed; it also held plaintiffs’ request for additional fees was not properly before the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court’s factual findings supporting contempt were erroneous | Plaintiffs argued Mahan violated the Agreed Order by not repaving the disturbed area/soft curve and by later paving that still left gaps | Mahan contended the Agreed Order required paving only the limited area marked on the survey, and he denied contempt | Trial court’s factual findings were supported by competent evidence and were not erroneous; Superior Court affirmed |
| Admissibility/notice of post‑petition paving evidence at contempt hearing | Plaintiffs relied on evidence of August 2015 paving presented after the petition | Mahan argued introducing post‑petition paving at the hearing was an improper variance and prejudicial | Court found parties discussed the post‑petition paving at the Sept. 14 conference and were given notice; admission was proper (no prejudice) |
| Interpretation of the Agreed Order — scope of repaving obligation | Plaintiffs interpreted the agreement to require repaving the entire disturbed area and soft curve | Mahan argued agreement limited paving to a portion or the survey area, not the entire disturbed area | Agreement (on record) and surrounding statements showed Mahan agreed to repave the disturbed area and soft curve; court’s interpretation stands |
| Award of attorney’s fees and plaintiffs’ cross‑appeal for additional fees | Plaintiffs sought additional fees for responding to Mahan’s reconsideration motion/new matter | Mahan argued fees were improper or excessive and objected on appeal | Mahan waived challenge to fee award by failing to object before/during/after hearing; plaintiffs’ attempt to seek additional fees via "new matter" was improper and no appealable order disposing of such a request existed — cross‑appeal fails |
Key Cases Cited
- Flannery v. Iberti, 763 A.2d 927 (Pa. Super. 2000) (appellate review of contempt order is for abuse of discretion)
- Commonwealth v. Mutzabaugh, 699 A.2d 1289 (Pa. Super. 1997) (permissible variance between pleading and evidence in contempt proceedings when no prejudice)
- Reynolds v. Thomas Jefferson Univ. Hosp., 676 A.2d 1205 (Pa. Super. 1996) (variance not material if it causes no prejudice)
- L.B. Foster Co. v. Charles Caracciolo Steel & Metal Yard, Inc., 777 A.2d 1090 (Pa. Super. 2001) (findings of fact must be based on competent record evidence)
- Dep’t of Envtl. Prot. v. Cromwell Twp., 32 A.3d 639 (Pa. 2011) (courts’ inherent contempt power and broad remedial discretion)
- Epstein v. Saul Ewing, LLP, 7 A.3d 303 (Pa. Super. 2010) (elements required to prove civil contempt: notice, volitional act, wrongful intent)
- Lachat v. Hinchcliffe, 769 A.2d 481 (Pa. Super. 2001) (ambiguities in an order are construed in favor of alleged contemnor)