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HomeMy WebLinkAbout1998-5744 KEITH A. ILGENFRITZ : IN THE COURT OF COMMON PLEAS OF and KAREN L. : CUMBERLAND COUNTY, PENNSYLVANIA ILGENFRITZ, his wife, : ROBERT L. BAILEY, JR., : CIVIL ACTION--EQUITY and ANNETTE M. : BAILEY, his wife, KEVIN : E. CORNMAN and : TAMMY L. CORNMAN, : his wife, ELWOOD A. : THUMMA and SARA K. : THUMMA, his wife, : WILLIAM A. FRAKER : and FLORA FRAKER, his : wife, JAMES L. BAILEY, : ROBERT L. BAILEY and : MIRIAM A. BAILEY, his : wife, HARRY R. BAILEY,: JR. and KIMBERLY J. : BAILEY, his wife, : ROBERT D. DIEHL and : BARBARA A. DIEHL, his: wife, CHESTER L. SMITH: and PAULINE SMITH, his: wife, DARRELL W. : DeWALT and DONNA R. : DeWALT, his wife, : EUGENE CHESTNUT : and CINDY CHESTNUT, : his wife, ROBERT L. : ALLEN, SR., MICHAEL : G. HOSLER a/k/a : MICHAEL L. HOSLER, : and JULIE R. HOSLER : a/k/a JULIE R. HANSHUE,: his wife, : Plaintiffs : : v. : : STEVEN SHUGHART, : Defendant : NO. 98-5744 EQUITY TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., December 20, 2010. In this equity case in which Defendant’s neighbors have been forced repeatedly 1 over the years to resort to the court to enforce their right to access their properties over a right-of-way which runs across Defendant’s land, Defendant was adjudicated in contempt for the fourth time on October 13, 2010. The sanction imposed by the court for this most recent violation was as follows: The sanction of the Court is that the Defendant undergo a period of imprisonment of 5 months in the Cumberland County Prison, and within 60 days of today’s date pay a fine to the use of the County in the amount of $250, pay attorney’s fees to Plaintiffs’ counsel in the amount of $2,437.50, and file a bond with a corporate surety satisfactory to the Court, or a lien upon Defendant’s property in favor of Plaintiffs, in the amount of $5,000 to secure Defendant’s future compliance with the Order of Court. The condition of purge with respect to the prison sentence imposed herein is that 2 the Defendant hereafter comply in all respects with the said Order of Court. From this adjudication of contempt, Defendant has filed an appeal to the 3 Pennsylvania Superior Court. The bases of the appeal have been expressed in Defendant’s statement of errors complained of on appeal as follows: 1. The court erred in finding defendant was in contempt of the court order, where there was insufficient evidence to sustain a finding of criminal or civil contempt, particularly where there was no evidence that defendant blocked or otherwise misused the right of way. 2. To the extent that the specific facts could possibly sustain a finding of contempt, the court’s finding is against the weight of the evidence is insufficient in totality insomuch as a log appeared to have been moved onto the roadway but there’s no evidence as to how the small log got there, the small log did not block ingress or egress in any way, and as for the snow on a separate incident or date, there was credible evidence that defendant was in the process of plowing when his plow broke and he had to go to retrieve parts to fix the plow. The neighbors were able to make ingress and egress with 1 See, e.g., Plaintiffs’ Complaint, filed October 6, 1998; Plaintiffs’ Petition for Enforcement of Agreement by the Parties, filed January 24, 2000; Plaintiffs’ Petition for Contempt, filed August 11, 2000; Plaintiffs’ Petition for Contempt, filed May 8, 2002; Plaintiffs’ Petition for Contempt and Sanctions, filed May 19, 2004; Plaintiffs’ Petition for Contempt and Sanctions, filed January 12, 2007; Plaintiffs’ Petition for Contempt and Sanctions, filed May 25, 2010. 2 Order of Court, October 13, 2010. Since the condition of purge could be met by Defendant’s refraining from future violations, he was not confined. 3 Defendant’s Notice of Appeal, filed November 8, 2010. 1 their own snow plows as they were in the process of plowing out the area as well, Further, there was unrebutted testimony that this was an unusual large amount of snow and in fact was a snow emergency for the area. For all the foregoing reasons the court 4 erred in finding defendant in contempt. This opinion in support of the adjudication is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Defendant is the owner of property that fronts on Pine Knob Road in the Newville 5 area of Cumberland County, Pennsylvania. Plaintiffs are owners of properties accessed 6 by a private right-of-way that runs from the road across Defendant’s property. Plaintiffs have been engaged for years in a running battle with Defendant to stop him from blocking their access to their residences by way of the right-of-way. In 1998 Plaintiffs filed a complaint against Defendant, alleging that they were owners of properties, the sole access to which was over an easement known as Pine Lane across Defendant’s property on Pine Knob Road, in Lower Mifflin Township, 7 Cumberland County, Pennsylvania. The complaint further alleged that Defendant persistently and intentionally created conditions that blocked their use of the right-of- 8 way. The case was ultimately resolved with an order dated January 25, 2000, that, inter alia, provided as follows: Defendant Steven Shughart, and his invitees, licensesees, employees, agents or representatives, assigns and successors in interest, shall permanently restrain from interfering with, obstructing or blocking in any way Plaintiffs’ ability to use for purposes of reasonable egress, ingress and regress that existing easement or right of way known as 4 Defendant’s Statement of Matters Complained of on Appeal, filed December 3, 2010. 5 Notes of Testimony, 12, Hearing on Plaintiffs’ Petition for Contempt and Sanctions, October 13, 2010 (hereinafter N.T. __); Plaintiffs’ Exhibit 6, admitted at Hearing on Plaintiffs’ Petition for Contempt and Sanctions, October 13, 2010 (hereinafter Plaintiffs’/Defendant’s Exhibit __). 6 N.T. 5; See Plaintiffs’ Complaint, ¶¶1-38, filed October 6, 1998. 7 Plaintiffs’ Complaint, filed October 6, 1998. 8 Plaintiffs’ Complaint, ¶¶48-52, filed October 6, 1998. 2 Pine Lane which crosses over and upon Defendant’s land located in Upper Mifflin 9 Township, Cumberland County, Pennsylvania. 10 In December of 2000, Defendant was adjudicated in contempt and, inter alia, sanctioned with a period of imprisonment of one month, with a condition of purge that he 11 abide by the terms of the order in the future. Upon a petition for contempt and sanctions 12 in 2002 filed by Plaintiffs alleging that Defendant had barricaded the right-of-way, the court found, following another hearing, that Defendant had failed to comply with the 13 condition of purge and the court was constrained to enforce the aforesaid prison term. 14 Defendant was again adjudicated in contempt following a hearing in 2004, and sanctioned, inter alia, with a period of imprisonment of two months, subject to a 1516 condition of purge which he was able to meet. Upon a petition for contempt and sanctions in 2007 filed by Plaintiffs alleging that 17 Defendant had installed and closed two gates along the right-of-way, Defendant agreed to an order adjudicating him in contempt again and imposing a sanction of, inter alia, imprisonment of five months, with a condition of purge that he pay Plaintiffs’ counsel 18 fees and thenceforth comply with the order of court. Plaintiffs’ latest petition for contempt against Defendant alleged that “[o]n or about January 22, 2010, Defendant dragged cut logs across Pine Lane obstructing and interfering with Plaintiffs’ ability to access their properties by way of the right-of-way 9 Order of Court, ¶1, January 25, 2000. 10 Order of Court, October 3, 2000. 11 Order of Court, December 8, 2000. 12 Plaintiffs’ Petition for Contempt and Sanctions, ¶11, filed May 8, 2002. 13 Order of Court, July 17, 2002. 14 Order of Court July 29, 2004. 15 Order of Court, September 30, 2004. 16 See Order of Court, September 30, 2004. 17 Plaintiffs’ Petition for Contempt and Sanctions, ¶14, filed January 17, 2007. 18 Order of Court, April 5, 2007. 3 19 known as Pine Lane” and that “[o]n or about February 11, 2010, Defendant plowed approximately four (4) feet of snow from his yard onto Pine Lane, thereby obstructing and interfering with Plaintiffs’ ability to access their properties by way of the right-of- 20 way known as Pine Lane.” The petition noted that the court’s order dated January 25, 2000, enjoined Defendant “from interfering with, obstructing or blocking in any way Plaintiffs’ ability to use for purposes of reasonable egress, ingress and regress that 21 existing easement known as Pine Lane,” and alleged that Defendant’s actions were 22 “knowing and intentional violations” of the order. At a hearing on the petition, Plaintiffs presented the testimony of two of their number, Keith A. Ilgenfritz and Michael G. Hosler, as well as that of their counsel (regarding attorney’s fees), and six exhibits. Defendant presented the testimony of himself and his spouse, as well as two exhibits. The testimony of Keith A. Ilgenfritz as to Defendant’s alleged violations may be summarized as follows. At 5:30 a.m. on Friday, January 22, 2010, as a result of a contact from a neighbor, Plaintiff Ilgenfritz found three logs, having diameters of five to seven 23 inches, obstructing the right-of-way on Defendant’s property. One or more of these obstructions showed clear evidence of having been sawed, as opposed to having been 2425 broken, off their trees. Defendant was accustomed to cutting timber on his property. Plaintiff Ilgenfritz physically cleared the obstructions from the right-of-way, so that he 26 could proceed to work. 19 Plaintiffs’ Petition for Contempt and Sanctions, ¶15, filed May 25, 2010. 20 Plaintiffs’ Petition for Contempt and Sanctions, ¶16, filed May 25, 2010. 21 Plaintiffs’ Petition for Contempt and Sanctions, ¶17, filed May 25, 2010. 22 Plaintiffs’ Petition for Contempt and Sanctions, ¶18, filed May 25, 2010. 23 N.T. 7-9, 13, 24; Plaintiffs’ Exhibits 2(-A, -B, -C, -D) (photographs), 6 (aerial view). 24 N.T. 8; Plaintiffs’ Exhibits 2(-A, -B, -C, -D) (photographs). 25 N.T. 13-14. 26 N.T. 9. 4 At 1:30 p.m. on Thursday, February 11, 2010, Plaintiff Ilgenfritz found that the right-of-way across Defendant’s property had been blocked with snow plowed from 27 another area of Defendant’s property. Plaintiff Ilgenfritz used his own truck to plow the 28 right-of-way open. The testimony of Plaintiff Michael G. Hosler as to Defendant’s alleged violations may be summarized as follows. With regard to the January log incident, Plaintiff Hosler observed the logs on the day of the occurrence after Plaintiff Ilgenfritz had moved them 29 off the right-of-way. With regard to the snow incident, he observed that the obstructive 30 snow had been transferred from another area of Defendant’s property, that it had been 31 piled across the entire width of the right-of-way to a height of five or six feet, and that 32 his own equipment had proven inadequate to the task of clearing the obstruction. In Defendant’s testimony, he admitted with respect to the snow incident that he 33 had piled the snow onto the right-of-way. He claimed, however, that his work was 34 interrupted by an hydraulic hose malfunction. With respect to the log incident, 35 Defendant testified that he had had nothing to do with it, that he did not think that any 3637 of the logs in question had been sawed, and that the logs might have “blow[n] down.” 27 N.T. 14-19; Plaintiffs’ Exhibits 3, (A, -B, -C, -D) (photographs), 6 (aerial view). 28 N.T. 15, 31. 29 N.T. 35-36. 30 N.T. 37. 31 N.T. 37. 32 N.T. 40, 44. As noted in the text, Plaintiffs’ counsel testified as to her clients’ attorney’s fees. N.T. 58- 61. 33 N.T. 55-56. 34 N.T. 47-52. Defendant produced a receipt for a replacement hose. Defendant’s Exhibit 2. 35 N.T. 53. 36 N.T. 53. 37 N.T. 55. 5 Defendant’s spouse testified, with respect to the snow incident, that Defendant had 38 plowed the snow “straight across” the right-of-way. She claimed, however, that he had 39 been unable to finish the work because of a breakdown of his equipment. Based upon the evidence presented, the court, in its capacity as trier-of-fact, was persuaded that Defendant, on January 22, 2010, and February 11, 2010, had intentionally, voluntarily and willfully obstructed the right-of-way at issue in this case in violation of the court’s order dated January 25, 2000. It did not find credible Defendant’s testimony that he had had nothing to do with the log incident, nor did it believe the implication of his testimony as to the snow incident that his intention had been to ultimately clear the right-of-way of the obstruction he had created. Accordingly, the order of court dated October 13, 2010, from which Defendant has appealed, was entered. DISCUSSION In equity proceedings, it is the “duty of the chancellor to pass upon the credibility of witnesses, determine the weight to be given to their testimony, and make ultimate findings.” Deeb v. Ferris, 127 Pa. Super. 489, 493, 193 A. 75, 77 (1937). A chancellor is not “bound to accept the testimony of witnesses as true, even though it is uncontradicted.” Yeakel v. Driscoll, 321 Pa. Super. 238, 242, 467 A.2d 1342, 1344 (1983). As with other fact-finders, a court in equity “is free to believe all, part or none of the evidence that is presented.” See Matakitis v. Woodmansee, 446 Pa. Super. 433, 444, 667 A.2d 228, 233 (1995). “In proceedings for civil contempt of court, the general rule is that the burden of proof rests with the complaining party to demonstrate, by [a] preponderance of the evidence, that the defendant is in noncompliance with a court order.” Lachat v. Hinchcliffe, 2001 PA Super __, ¶12, 769 A.2d 481, 488. “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 38 N.T. 47. 39 N.T. 47-48. 6 the act constituting the contemnor’s violation was volitional; and (3) that the contemnor acted with wrongful intent.” Id. at ¶13, 769 A.2d at 489. In the present case, the court resolved the credibility issues with respect to Defendant’s alleged actions and mental states on January 22 and February 10, 2010, against him. BY THE COURT, _________________ J. Wesley Oler, Jr., J. Susann B. Morrison, Esq. 354 Alexander Spring Road Suite 1 Carlisle, PA 17015 Attorney for Plaintiffs Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendant 7