IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tinicum Township :
:
v. : No. 2114 C.D. 2014
:
Allan J. Nowicki, River Road :
Quarry, LLC, Pennswood Hauling, :
LLC, and RRQ, LLC, :
:
Appellants :
:
Tinicum Township :
:
v. : No. 734 C.D. 2015
:
Allan J. Nowicki, River Road : Argued: February 8, 2016
Quarry, LLC, Pennswood Hauling, :
LLC, and RRQ, LLC, :
:
Appeal of: Allan J. Nowicki :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: March 31, 2016
Allan J. Nowicki, River Road Quarry, LLC (River Road), Pennswood
Hauling, LLC (Pennswood), and RRQ, LLC (RRQ) (together, Appellants) appeal
from three orders of the Court of Common Pleas of Bucks County (trial court).
The first Order, issued on October 15, 2014, preliminarily enjoins Appellants from,
inter alia, conducting any further mulch operations on a 56-acre parcel owned by
RRQ located in the Township (the Property) on the basis that the operation violates
the Township’s Zoning Ordinance (Ordinance). The second Order, also filed on
October 15, 2014, finds Mr. Nowicki and River Road in contempt for violating a
January 14, 2013 Injunction Order (2013 Injunction) related to the mulch operation
operated on an adjacent property (the 3-Acre Parcel). The third Order, filed on
March 31, 2015, orders Mr. Nowicki and River Road to pay sanctions in the
amount of $14,685.70 as a result of the trial court’s October 15, 2014 contempt
Order. On appeal, Appellants argue that the trial court erred by issuing the
October 15, 2014 preliminary injunction. Appellants contend that the mulching
operation on the Property does not violate the Ordinance because it qualifies as an
agricultural operation or forestry activity protected by Sections 107, 603(f), and
603(h) of the Pennsylvania Municipalities Planning Code (MPC)1 and Section 2 of
the Act commonly known as the Right to Farm Act.2 Appellants also argue that
the trial court erred by holding Mr. Nowicki and River Road in contempt because
they did not willfully violate the trial court’s 2013 Injunction. We affirm.
I. BACKGROUND
A. Prior Litigation on the 3-Acre Parcel
In order to address the issues involved in this appeal, we first review our
September 9, 2014 en banc decision in Tinicum Township v. Nowicki, 99 A.3d
586 (Pa. Cmwlth. 2014), which involves essentially the same parties, similar legal
1
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10107, 10603(f), (h).
2
Act of June 10, 1982, P.L. 454, as amended, 3 P.S. § 952.
2
issues, and the 3-Acre Parcel. We set forth the factual background in that case as
follows:
The Property is a three-acre former quarry located in the
Township’s E (Extraction) Zoning District. Pennswood hauls raw
materials, including tree stumps, yard waste, and logs to the Property;
some similar materials are brought to the Property by landscapers.
River Road processes these materials into mulch using a tub grinder.
Pennswood then hauls the finished mulch off the Property to buyers.
(Trial Ct. Op. at 1–2; [Tinicum Township Zoning Hearing] Board
[(Board)] Decision, Findings of Fact (FOF) ¶¶ 11, 18.)
On June 26, 2009, the Township Zoning Officer sent an
enforcement notice to River Road stating that its mulching operation
was in violation of the [Township’s Zoning] Ordinance. In response,
River Road ceased production and sale of the mulch. River Road
resumed mulching operations in the Spring of 2011. The Township
Zoning Officer issued a second Enforcement Notice (Notice) on
October 13, 2011. This Notice stated that [River Road and
Pennswood] were in violation of Sections 601.2 and 1302 of the
Ordinance for operating non-permitted mill, warehouse, and
wholesale uses on the Property in the E (Extraction) Zoning District.
(Trial Ct. Op. at 2; Notice at 2, October 13, 2011.)
[River Road and Pennswood] appealed the October 13, 2011
Notice and a hearing was held before the Board. The Township
presented the testimony of its Zoning Officer and Herbert Cook, the
owner of the parcel from which the Property had been subdivided.
[River Road and Pennswood] presented the testimony of Allan
Nowicki, owner of River Road and co-owner of Pennswood, and
Jonathan Nowicki, co-owner of Pennswood. Following the hearing,
the Board issued its Decision upholding the October 13, 2011 Notice
and concluding that the mulching operation was not a permitted use
on the Property. In reaching this conclusion, the Board held that the
mulching operation did not qualify as an A–1 crop farming/nursery
use or an A–6 forestry use under the Ordinance. (Board Decision,
Conclusions of Law (COL) ¶ 2.) It was important to the Board’s
holding that none of the raw materials from the mulching operation
were derived from the Property itself. (COL ¶¶ 2–3.) The Board
analogized the situation to the raising of sheep:
3
If a farmer raises sheep and shears the wool and then
sells the wool to a factory which knits that wool into
sweaters, the processing of the wool into sweaters at the
factory is not an agricultural use but is a manufacturing
use. The hauling of wood produced elsewhere onto the
site for further processing is not an agricultural use or a
forestry use.
(COL ¶ 4.) [River Road and Pennswood] appealed the Board’s
Decision to the trial court. Without taking new evidence regarding the
appeal, the trial court affirmed the Board’s Decision and concluded
that the mulching operation was not an agricultural or forestry use.
Tinicum Township, 99 A.3d at 588-89 (footnotes omitted).
On appeal to this Court, River Road and Pennswood argued that the trial
court erred in holding that the mulching operation does not qualify as an
agricultural or forestry operation protected by the MPC and the Right to Farm Act.
Upon review, we first analyzed Sections 603(f) and 603(h) of the MPC and
concluded that “if the mulching operation qualifies as a forestry activity or an
agricultural operation, then pursuant to Section 603, the Ordinance may not operate
to prevent it on the Property.” Tinicum Township, 99 A.3d at 590. To determine
whether the mulching operation qualified as either a forestry activity or an
agricultural operation under the MPC, we looked to the definitions of the terms in
Section 107 of the MPC, as well as our interpretation of those terms in Stoltzfus v.
Zoning Hearing Board of Eden Township, Lancaster County, 937 A.2d 548, 549-
50 (Pa. Cmwlth. 2007) and Clout, Inc. v. Clinton County Zoning Hearing Board,
657 A.2d 111, 114 (Pa. Cmwlth. 1995). We reasoned that the protections of the
MPC are “not necessary where the use in question has no connection to the land
and could be conducted on any piece of property.” Tinicum Township, 99 A.3d at
591. Accordingly, we held that:
4
in order to qualify as either an agricultural operation or a forestry
activity as defined by Section 107 of the MPC and protected by
Section 603(f) and 603(h), the use in question must have some
connection to or utilization of the land itself for production of trees,
livestock or agricultural, agronomic, horticultural, silvicultural, or
aquacultural crops or commodities. We conclude that, under the
circumstances of this case, the mulching operation at issue does not
qualify as an agricultural operation or forestry activity under the
MPC.
Id. Similarly, we concluded that mulching operations fall under the protections of
the Right to Farm Act if the mulching operation has “some connection between the
use at issue and the employment of the property in question for the production of
an agricultural, agronomic, horticultural, silvicultural, or aquacultural crop or
commodity.” Id. at 593. Applying the above principles to the facts in the case, we
held that “[b]ecause none of the raw materials from the mulching operation are
produced on the [3-Acre Parcel] and none of the resulting mulch is used for the
production of livestock, crops, or agricultural commodities on the [3-Acre Parcel],
the mulching operation is not a ‘normal agricultural operation’ as defined by
Section 2 of the Right to Farm Act.” Id. (quoting 3 P.S. § 952).
While Tinicum Township was under review by this Court, the trial court
issued an Agreed Upon Interim Order on June 8, 2012. That Order temporarily
enjoined Mr. Nowicki and River Road from storing mulch-related material west of
a line drawn on the 3-Acre Parcel, operating the business outside of the hours of 7
a.m. and 5 p.m. Monday through Saturday, and from leaving dust on the driveway.
(Township’s Petition for Preliminary Injunction and Contempt (Petition), Ex. B,
5
Hr’g Tr. at 2-10, June 8, 2012, R.R. at 71a-80a.)3 On January 14, 2013, the trial
court entered an order finding Mr. Nowicki and River Road in contempt of the
June 8, 2012 Order and preliminarily enjoining Mr. Nowicki and River Road to
comply with the following terms and conditions:
A. No further materials for the processing of mulch and firewood may
be brought onto the [3-Acre Parcel].
B. [Mr. Nowicki and River Road] may continue to process the
materials already onsite into mulch material until March 15, 2013
when all such processing activities must stop.
C. [Mr. Nowicki and River Road] may sell the mulch which they
process on the Property until May 15, 2013 at which time all mulch
related activities, including the sale of mulch, shall cease. Any mulch
and firewood remaining on the [3-Acre Parcel] on May 15, 2013 shall
remain on the Property.
D. The hours of operation of the processing of mulch and truck traffic
to and from the [3-Acre Parcel] shall continue to be 7:00 A.M. to 5:00
P.M., Monday through Saturday, with no activities related to the
mulch operation on Sundays.
E. No wood materials, whether they be raw materials, chips or mulch
piles, may be stored west of the easterly line drawn on T - 17.
(2013 Injunction, January 14, 2013, R.R. at 8a-9a.)
B. Instant Litigation on the 56-Acre Parcel
On April 24, 2013, four months after the trial court enjoined Mr. Nowicki
and River Road, Mr. Nowicki’s wife formed RRQ. (Trial Ct. Op., October 15,
2014 (October 2014 Op.), at 6.) RRQ purchased the Property on May 7, 2013.
3
The June 8, 2012 Agreed Upon Interim Order does not appear in the certified record.
6
(October 2014 Op. at 6.) The Property is a 56-acre active quarry that surrounds the
3-Acre Parcel at issue in Tinicum Township and the 2013 Injunction on three
sides. (October 2014 Op. at 5.) Like the 3-Acre Parcel, the Property is located in
the Township’s E (Extraction) Zoning District. (October 2014 Op. at 5.)
Following the purchase of the Property, the mulch operation operated by
Pennswood on the 3-Acre Parcel was moved to the Property. (October 2014 Op. at
6.) On August 20, 2013, the Township issued an Enforcement Notice to RRQ, Mr.
Nowicki, and Pennswood, stating that, by “allowing for the establishment of wood
processing activities” on the Property, they were in violation of various provisions
of the Ordinance. (Enforcement Notice at 1, R.R. at 27a.) The Enforcement
Notice lists the specific violations and states that RRQ, Mr. Nowicki, and
Pennswood “are to commence corrections of these violations within five (5) days
of this notice and correct all violations within thirty (30) days of notice.”
(Enforcement Notice at 2, R.R. at 28a.) The Enforcement Notice further states that
“[f]ailure to comply with this notice within the time specified, . . . constitutes a
violation, and is subject to a fine of up to $500.00 per day . . . .” (Enforcement
Notice at 2, R.R. at 28a.) Appellants attempted to appeal the Enforcement Notice
two times. The first attempt was denied because Appellants’ appeal “did not
contain an application fee or a proposed plan.” (October 2014 Op. at 7.) The
second attempt was rejected as untimely. (October 2014 Op. at 7.)
7
On October 3, 2013, the Township filed a Complaint in equity and the
instant Petition.4 In the Petition, the Township alleges that Appellants: (1)
continue to manufacture and sell mulch on the Property in violation of the
Ordinance, “causing noise, dust and excessive truck traffic,” which “constitutes a
nuisance to the neighboring properties”; (2) continue to store materials associated
with the manufacture and sale of mulch from the Property in the floodway of the
Delaware River, presenting a danger to the public health in the event of flooding
and violating “the [Ordinance] and [the Federal Emergency Management Agency’s
(FEMA)] Floodplain Regulations”; and (3) “permitted a landscaper to dump piles
of soil and stone in the floodway of the Delaware River . . .” on the 3-Acre Parcel.
(Petition ¶¶ 4-6, R.R. at 37a.) The Petition further alleges that Mr. Nowicki, River
Road, and Pennswood are in contempt of the 2013 Injunction regarding the 3-Acre
Parcel by failing to comply with the conditions set forth therein. (Petition ¶¶ 11-
14, R.R. at 40a-41a.)
Appellants filed an Answer to the Petition denying all the material
allegations therein. The trial court held four hearings on the matter.5 Upon review
of the evidence, the trial court issued two orders on October 15, 2014: the first
granting the Petition with regard to the request for a preliminary injunction and
4
The Petition is entitled: “Petition for Preliminary Injunction to Enjoin the Processing,
Manufacturing and Sale of Mulch on the RRQ, LLC Property and to Order the Defendants to
Remove all the Material They Have Placed in the Floodway of the Delaware River and to Find
the Defendants, Allan J. Nowicki, River Road Quarry, LLC and Pennswood Hauling, LLC, in
Contempt of this Court’s Order of January 14, 2013 With Regard to the River Road Quarry
Property.” (Petition, R.R. at 35a.)
5
The hearings were held on October 22, 2013, February 28, 2014, April 30, 2014, and
May 15, 2014.
8
consolidating the instant matter with the litigation on the 3-Acre Parcel, and the
second holding Mr. Nowicki and River Road in contempt for violating the 2013
Injunction. On March 31, 2015, the trial court imposed sanctions upon Mr.
Nowicki and River Road in the amount of $14,685.70.
The trial court explained its reasoning in three memoranda opinions. The
trial court’s first opinion was issued on October 15, 2014 and accompanied the two
Orders issued on that date. The trial court issued a second opinion on June 4, 2015
in response to Appellants’ first Concise Statement of Errors Complained of on
Appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure
(Concise Statement).6 The trial court then filed a Supplemental Opinion on
September 1, 2015 in response to a second Concise Statement filed by Appellants.
The trial court’s October 2014 opinion, which accompanied its Orders of that date,
states in relevant part:
We find that [Appellants’] mulch operation on the [Property]
violates the Ordinance. On that basis, we issue a preliminary
injunction prohibiting [Appellants] from conducting any further
mulch operation on the [Property], and requiring [Appellants] to
remove all mulching materials from the 3-Acre Parcel and [the
Property].
6
Pa. R.A.P. 1925(b). Rule 1925(b) provides in relevant part:
If the judge entering the order giving rise to the notice of appeal (“judge”) desires
clarification of the errors complained of on appeal, the judge may enter an order
directing the appellant to file of record in the trial court and serve on the judge a
concise statement of the errors complained of on appeal (“Statement”).
Id.
9
Under Section 617 of the [MPC], a township may obtain
injunctive relief by showing that there has been a violation of the
zoning ordinance. See 53 P.S. § 10617; Gateway Motels v.
Municipality Monroeville, 525 A.2d 478, 482-483 (Pa. Cmwlth.
1987). A township is not required to establish irreparable harm.
Gateway Motels, 525 A.2d at 483. [Appellants’] mulch operation on
the [Property] (like their prior mulch operation on the 3-Acre Parcel)
is not a permitted use in the E (Extraction) Zoning District of the
Ordinance.
....
The Commonwealth Court’s reasoning [in Tinicum Township]
compels the conclusion that, like the mulch operation on the 3-Acre
Parcel, the mulch operation on the [Property] is not a protected
forestry or agricultural use. As we have described above, we find that
the mulch operation on [the Property] is nearly identical to the
previous mulch operation on the 3-Acre Parcel. [Appellants] simply
moved their mulch operation to the [Property] following our January
14, 2013 Order enjoining them from continuing the mulch operation
on the 3-Acre Parcel. Because the Commonwealth Court concluded
that the mulch on the 3-Acre Parcel violated the Ordinance and was
not a forestry or agricultural use, we find that the mulch operation on
the [Property] also violates the Ordinance and is not a forestry or
agricultural use.
(October 2014 Op. at 9-10.)
The trial court found Appellants’ argument that the mulch operation on the
Property does not violate the Ordinance because the mulch operation on the
Property is materially different than the mulch operation on the 3-Acre Parcel
unpersuasive. According to the trial court:
The only two potential material differences between the mulch
operation on the 3-Acre Parcel compared to the [Property] that
[Appellants] note are: (1) they use some “wood fibers” from the
[Property] to make mulch, whereas none of the mulch made on the 3-
Acre Parcel came from raw materials found on the property; and (2)
[Appellants] intend to use trees from the [Property] to make mulch
10
and utilize some of the finished mulch product on the [Property].
([Def, Br. at 14-15].) Neither is a compelling reason to decline to
apply the Commonwealth Court’s opinion to the mulch operation on
the [Property].
First, the amount of “wood fibers” from the [Property] that
[Appellants] have used in the mulch process is insignificant compared
to the raw materials that [Appellants] use from offsite sources.
Jonathan Nowicki described the “wood fibers” that were collected
from the [Property] for processing into mulch as “saplings and brush”
as well “trees that were fallen down and blown over that I cleaned
up.” (Id. at 11). This is insignificant relative to the scale of the mulch
operation, where the vast majority the raw wood material that is used
in the mulch operation on the [Property] is from offsite trees.
Landowner characterized the mulch operation as using raw wood
material brought onto the property from offsite sources. (N.T.,
4/30/14 p. 160). He estimated that in a typical year between ten (10)
and twenty (20) percent of the raw wood material would come from
property he has an interest in, while the remainder would come from
other sources - “wood fibers” from the [Property] were not included in
the estimation. (Id. at 176). Landowner detailed that he obtains raw
wood material from a variety offsite sources including other
properties he owns, third parties dumping it at the site, and purchasing
it on the marketplace. (Id. at 164-165). He discussed over twenty
properties he owns from which he collects raw wood material and
deposits onto the [Property]. (ld. at 169-174). He also testified that
he obtains wood from third party landscapers in exchange for finished
mulch. (Id. at 256). Based on this testimony, we find that an
insignificant amount of “wood fibers” from the [Property] are used in
the mulch operation.
Nor is the mulch made on the [Property] used on the Property.
[Mr. Nowicki] admitted that he has not used any of the finished mulch
on the 56-Acre Parcel. (ld. at 180). Likewise, at the time of the May
13, 2014 hearing, Jonathan Nowicki testified that two (2) to six (6)
trailer loads of mulch leave the site per day and are delivered to third
parties. (N.T., 5/13/14 p. 22.) Therefore, because the vast majority of
raw materials for the mulch operation on the [Property] are brought
onto the [P]roperty from offsite sources, and all of the resulting mulch
product is then delivered offsite rather than used on the [P]roperty, we
find that [Appellants’] mulch operation has no connection to the
[Property], and could be conducted on any piece of property. See
Tinicum, [99 A.3d at 591].
11
Second, we find that [Appellants’] purported intent to use trees
from the [Property] and to use the finished mulch on the [Property] is
not credible. It has been over a year since they purchased the
[Property], but [Appellants] have yet to actually use any trees from the
[Property] in the mulch operation, nor have they used any mulch on
the [Property]. [Appellants’] course of conduct in this action displays
their attempts to find any legal loophole possible to shoehorn the
mulch operation into compliance with the Ordinance or protection
under the MPC or Right to Farm Act, and evade Orders of Court. We
find that [Appellants’] claims of intent are the latest such attempt in a
long line of tactics, and those claims are not credible.
(October 2014 Op. at 11-13.)
With regard to its Order finding Mr. Nowicki and River Road in contempt,
the trial court explained that the Township met its burden to prove by a
preponderance of the evidence that Appellants violated four of the five conditions
set forth in the 2013 Injunction. (October 2014 Op. at 14-20.) The trial court also
concluded that those activities that did not violate the 2013 Injunction and,
therefore, could not form the basis of the contempt Order, “clearly violate[] the
spirit of the [2013 Injunction]” by exhibiting a “course of conduct [that] shows
[Appellants’] determination to evade Orders of Court.” (October 2014 Op. at 15.)
This appeal followed.
II. DISCUSSION
Before this Court, Appellants argue that there are critical distinctions
between the instant matter and Tinicum Township that justify a different result.
Appellants also contend that the trial court erred and abused its discretion when it
found Mr. Nowicki and River Road in contempt and ordered sanctions. In addition
to providing argument rebutting Appellants’ arguments, the Township asserts that
12
Appellants failed to preserve any issues for appellate review as none of Appellants’
arguments raised in their Brief to this Court were listed in Appellants’ Concise
Statement. We shall address each issue seriatim, starting with the Township’s
waiver argument.
A. Waiver
As a preliminary matter, the Township argues that Appellants failed to
preserve any issues for appellate review because Appellants did not include the
issues raised here in either their First or Second Concise Statements. According to
the Township, Appellants’ First Concise Statement is “simply a recitation of
selected quotes from [the trial court]’s Order and Memorandum Opinion of
October 15, 2014. Nowhere in that recitation of quotes do the Appellants identify
the errors that they contend were committed by the trial court . . . .” (Township’s
Br. at 17.)
In response, Appellants first argue that the quotations listed in their First
Concise Statement sufficiently raise all the relevant issues in this appeal. Second,
Appellants argue that the Concise Statements were filed by Mr. Nowicki acting pro
se, and that this Court should review the Concise Statements under the relaxed
standard used when analyzing filings by pro se litigants. Third, Appellants
contend that precluding review of the issues raised on appeal due to the inadequacy
of Appellants’ pro se filing “would be the epitome of elevating form over
substance and would ignore the principle that the law favors deciding cases on
their merits.” (Appellants’ Reply Br. at 14.) Finally, Appellants argue that the
bright-line waiver rule established in Commonwealth v. Lord, 719 A.2d 306, 309
13
(Pa. 1998) should not apply here because Lord and its progeny involve instances
where a concise statement was not filed at all, not where the statement was less
than clear.
While Appellants were technically represented by counsel at the time they
filed their Notice of Appeal and First Concise Statement,7 it is clear that the
relationship between Appellants and their counsel was strained, leading Mr.
Nowicki to file the appeal and two Concise Statements pro se.8 Appellants’ first
Concise Statement is a list of quotations from the trial court’s October 15, 2014
Opinion that Appellants found objectionable. (First Concise Statement, C.R. at
Item 33.) Upon review of Appellants’ First Concise Statement, the trial court
issued an opinion on June 4, 2015, stating in relevant part:
A plain reading of Appellants’ “Statement of Matters” reveals that it
is simply a repetitive recitation of selected statements extracted from
this Court’s Order and Memorandum Opinion of October 15, 2014.
7
Appellants were represented by counsel during the proceedings in the trial court.
However, a week before Appellants filed their Notice of Appeal on November 20, 2014,
Appellants’ counsel petitioned the trial court to withdraw on the basis of Appellants’ lack of
cooperation and failure to pay for legal services. (Petition to Withdraw, C.R. at Item 28.) Upon
receiving Appellants’ Notice of Appeal, the trial court issued an order on November 24, 2014
pursuant to Section 1925(b) of the Rules of Appellate Procedure directing Appellants to file a
concise statement. (Docket at 2, R.R. at 2a.) Appellants filed the First Concise Statement on
December 15, 2014, a week prior to the trial court granting counsel permission to withdraw on
December 22, 2014. (Docket at 3, R.R. at 3a.) Upon receiving notice that Appellants appealed
the trial court’s March 31, 2015 Order, the trial court ordered Appellants to file a second Concise
Statement on May 4, 2015. (Docket at 3, R.R. at 3a.) Appellants filed their Second Concise
Statement, also pro se, on May 19, 2015.
8
The trial court directed Mr. Nowicki to obtain counsel for his LLC businesses. (Trial
Ct. Supp. Op., September 1, 2015, at 3.) At a December 16, 2014 hearing on Appellants’
counsel’s Petition to Withdraw, the trial court advised Mr. Nowicki that his failure to obtain
counsel would not slow the proceedings. (Trial Ct. Supp. Op., September 1, 2015, at 3.)
14
Appellants have failed to identify any issue alleging Court error, and
as a consequence, this Court is unable to prepare a responsive legal
analysis. Appellants have therefore failed to preserve any issue for
appeal in this instance, and we respectfully suggest that Appellants’
appeal be dismissed.
(Trial Ct. Op., June 4, 2015, at 6.)
Appellants’ Second Concise Statement addressed the trial court’s March 31,
2015 Order imposing sanctions and alleged: (1) the trial court lacked jurisdiction
to assess a penalty based on the October 15, 2014 Order because that Order was
appealed to this Court; (2) the Township did not prove its case; (3) the amount of
sanctions were arbitrary and capricious; and (4) Mr. Nowicki is not the owner of
record of the Property. (Second Concise Statement, C.R. at Item 45.) In its
September 1, 2015 Supplemental Opinion, the trial court addressed the issues
raised in Appellants’ Second Concise Statement. However, none of the issues
included in the Second Concise Statement were raised in Appellants’ Brief to this
Court, which does not contain any argument related to the trial court’s March 31,
2015 Order.
Unfortunately, we are constrained to agree with the trial court that
Appellants failed to preserve any issues for review. In Lord, the Supreme Court of
Pennsylvania held that “Appellants must comply whenever the trial court orders
them to file a Statement of Matters Complained of on Appeal pursuant to Rule
1925. Any issues not raised in a 1925(b) statement will be deemed waived.”
Lord, 719 A.2d at 309 (emphasis added). Lord established “a bright-line rule” that
allows appellate courts to determine “which issues were presented to the trial court,
15
and thus preserved for appeal.” Commonwealth v. Schofield, 888 A.2d 771, 774
(Pa. 2005).
Appellants are correct that most cases following Lord address situations
where an appellant has not filed a concise statement at all. Nevertheless, the rule
established in Lord is also applicable to concise statements that are unclear or
vague.
[O]ur courts acknowledge a concise statement that is too vague to
allow the court to identify the issues raised on appeal is the functional
equivalent of no statement at all. Commonwealth v. Seibert, 799 A.2d
54 (Pa. Super.2002). When a trial court has to “guess” what issues an
appellant is appealing, that is not enough for meaningful review.
Commonwealth v. Dowling, 778 A.2d 683 (Pa. Super.2001).
Moreover, when an appellant fails to address the issues pursued on
appeal in a concise manner, the trial court is clearly impeded in its
preparation of legal analysis. In re Estate of Daubert, 757 A.2d 962
(Pa. Super.2000).
Caln Nether Company, L.P. v. Board of Supervisors of Thornbury Township, 840
A.2d 484, 490 (Pa. Cmwlth. 2004). Because the First Concise Statement,
addressing the trial court’s Orders of October 15, 2014, is too vague to allow the
trial court to identify the issues raised on appeal, we conclude that Appellants have
failed to preserve any issues for appeal related to the October 15, 2014 Orders.
Furthermore, while the Second Concise Statement, addressing the trial court’s
March 31, 2015 Order, sufficiently identifies the issues Appellants wish to appeal,
none of the issues raised in the Second Concise Statement are raised by Appellants
in their Brief to this Court. See Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa.
2014) (holding that “[w]here an appellate brief fails . . . to develop the issue in any
16
other meaningful fashion capable of review, that claim is waived.” (internal
citations omitted)).
Even if the issues raised in Appellants’ Brief to this Court had not been
waived, we would affirm the trial court’s Orders.
B. Preliminary Injunction
Our review of a trial court’s grant of a preliminary injunction is highly
deferential. Township of Middle Smithfield v. Kessler, 882 A.2d 17, 21 (Pa.
Cmwlth. 2005). The Pennsylvania Supreme Court explained the applicable
standard of review as follows:
on an appeal from the grant or denial of a preliminary injunction, we
do not inquire into the merits of the controversy, but only examine
the record to determine if there were any apparently reasonable
grounds for the action of the court below. Only if it is plain that no
grounds exist to support the decree or that the rule of law relied upon
was palpably erroneous or misapplied will we interfere with the
decision of the [trial court].
Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995,
1000 (Pa. 2003) (emphasis added) (quoting Roberts v. Board of Directors of
School District, 341 A.2d 475, 478 (Pa. 1975)).
The proponent of the injunction bears the burden of showing that the
prerequisites for a preliminary injunction are met. In the context of a municipality
seeking to enjoin a violation of an ordinance, “a municipality need only prove a
violation of its ordinance to establish its entitlement to an injunction. Irreparable
harm need not be demonstrated.” Paupack Township, Wayne County ex rel. Board
17
of Supervisors v. Lake Moc-A-Tek, Inc., 863 A.2d 615, 618 (Pa. Cmwlth. 2004).
Thus, our review of the trial court’s decision to preliminarily enjoin Appellants is
limited to whether the trial court had any reasonable ground to conclude that
Appellants violated the Ordinance or palpably misapplied the law.
The fact that the Property is in the same E (Extraction) Zoning District as the
3-Acre Parcel is not in dispute. (October 2014 Op. at 9.) Shawn McGlynn, the
Township’s Zoning Officer, testified that upon learning that the Property was
purchased by Appellants, he made periodic visits to the Property between May and
early fall of 2013. (Hr’g Tr. at 15-16, October 22, 2013, C.R. at Item 22.) Mr.
McGlynn testified that he observed every aspect of the mulching operation on the
Property and concluded that it was “[v]ery much almost identical to what was
taking place on the [3-Acre Parcel].” (Hr’g Tr. at 16, October 22, 2013.) Because
the Property is in the same zoning district as the 3-Acre Parcel, Mr. McGlynn’s
testimony that the two mulching operations are identical provides the trial court
with reasonable grounds to conclude that Appellants were violating the Ordinance.
Furthermore, the trial court’s conclusion that the differences between the
mulching operations on the two parcels were of no consequence is not a palpable
misapplication of our decision in Tinicum Township. Appellants argue that the
trial court misunderstood this Court’s holding in Tinicum Township and that a
proper application of that case to the facts here compels a conclusion that the
mulching operation on the Property is a protected agricultural or forestry operation
under the MPC and the Right to Farm Act. Appellants understand our decision in
Tinicum Township as standing for the proposition that the protections of Sections
18
603(f) and 603(h) of the MPC, and the Right to Farm Act, apply to mulching
operations that have “‘some connection to or utilization of the land itself.’”
(Appellants’ Br. at 14 (quoting Tinicum Township, 99 A.3d at 591).) Appellants
assert that although the mulching operation on the 3-Acre Parcel at issue in
Tinicum Township lacked a connection to the land, the mulching operation on the
Property is sufficiently connected. Appellants argue that the mulching operations
on the two parcels are materially different because unlike the 3-Acre Parcel, “wood
fibers from the [Property] are part of the raw materials that are utilized in making
mulch on the [Property].” (Appellants’ Br. at 15-16.) According to Appellants,
because “wood fibers” extracted from the Property are used in the mulching
operation, the mulching operation has some connection to the land. Appellants
stress that Tinicum Township required that there be “some connection” to the land
and argue that the trial court engrafted an improper additional requirement upon
Appellants by requiring that the operation be significantly connected.
The evidence shows that the vast majority of materials used in the mulching
operation are brought to the property from properties owned by the Nowicki
family, job sites of landscapers and tree surgeons, yards throughout Southeastern
Pennsylvania, and are purchased from the marketplace. (Hr’g Tr. at 164-65, April
30, 2014, C.R. at Item 19.) Once the raw materials are processed into mulch,
Appellants move the mulch into a pile which, as of May 15, 2014, stood at fifty
yards long, twenty-five yards wide, and twelve feet high. (October 2014 Op. at 6-
7.) According to Jonathan Nowicki, Appellants sell six trailer loads of mulch on
heavy days and two trailer loads on slow days. (Hr’g Tr. at 8, May 13, 2014, C.R.
at Item 18.)
19
Mr. Nowicki testified that he is in the process of conducting timber stand
improvement on the Property and clearing brush, and that the materials collected
from this process are used in the mulch operation. (Hr’g Tr. at 165-66, April 30,
2014.) When asked about the wood materials taken from the Property for use in
the mulching operation, Jonathan Nowicki, Mr. Nowicki’s son and owner of
Pennswood, testified as follows.
On the peninsula, there was some brush up against a bunch of trailers .
. . So I cleaned up all that brush along that – saplings and brush.
There was a big pile of wood down the peninsula that – there was like
sapling trees that the beaver ate. I picked up that stuff, it was a day’s
worth of cleanup, and carried that to the wood pile. And then over by
the garden that we have, we cut down some trees there and cleaned up
some brush. And then over towards I guess it would be the northeast
corner, there was a bunch of trees that were fallen down and blown
over that I cleaned up.
(Hr’g Tr. at 11-12, May 13, 2014.) Based on this evidence, the trial court
concluded that the materials used in the mulch operation that derive from the
Property are “insignificant compared to the raw materials that [Appellants] use
from offsite sources” and concluded that the mulching operation was not
sufficiently connected to the land to fall under the protections of the MPC.
(October 2014 Op. at 11.)
The trial court also did not credit testimony showing that Appellants planned
to use trees from the Property in the mulch operation and to use the finished mulch
on the Property itself. A trial court, sitting without a jury, is the exclusive arbiter
of witness credibility. In re Sullivan, 37 A.3d 1250, 1256 (Pa. Cmwlth. 2012). We
20
are prohibited from making contrary credibility determinations to reach a contrary
result. Id.
Because the amount of wood fibers extracted from the Property is so small
in comparison to the entire operation and the trial court discredited testimony
regarding other connections between the Property and the mulch operation
conducted thereon, we cannot say that the trial court’s reasoning is a palpable
misapplication of our decision in Tinicum Township that warrants our intervention
at this stage.
In sum, because the trial court had reasonable grounds to conclude that the
mulch operation on the Property violated the Ordinance and because the trial
court’s conclusion that the mulch operation does not fall under the protections of
the MPC is not a palpable misapplication of our decision in Tinicum Township, we
would not have disturbed the preliminary injunction, even if the argument was
preserved for appeal.
C. Contempt
Appellants argue that the trial court erred by holding Mr. Nowicki and River
Road in contempt because they abided by the 2013 Injunction and, if they violated
the 2013 Injunction, Mr. Nowicki and River Road violated it without wrongful
intent. In this regard, Appellants first argue that contempt orders must include
specific terms and that Paragraph C of the 2013 Injunction restricts Appellants
from removing “[a]ny mulch and firewood remaining on the [3-Acre Parcel] on
May 15, 2013.” (2013 Injunction ¶ C, R.R. at 8a-9a.) According to Appellants,
21
they removed “wood fibers” from the 3-Acre Parcel, not mulch or firewood, and
the trial court incorrectly used this conduct as proof that Appellants willfully
violated the 2013 Injunction.9 Appellants assert that if the trial court wished to
enjoin Appellants from removing raw wood materials, such as wood fibers, the
trial court could have done so. Appellants also argue that insofar as the trial
court’s 2013 Injunction was violated, the violation was not willful as the allegedly
contemptuous actions were an attempt to avoid a catastrophic fire and the result of
equipment breakdowns and vandalism.
For its part, the Township argues that Mr. Nowicki and River Road violated
Paragraph C of the 2013 Injunction by not ceasing all mulch-related activities as
ordered in that paragraph. (2013 Injunction ¶ C, R.R. at 8a-9a.) The Township
further argues that, even if Mr. Nowicki and River Road did not violate the portion
of Paragraph C of the 2013 Injunction, addressing removal of mulch and firewood,
the trial court correctly concluded that Mr. Nowicki and River Road violated at
9
Appellants also argue that the trial court erred by holding them in contempt based on
activity on the Property when the 2013 Injunction only addressed the 3-Acre Parcel. Appellants
note that the trial court found that Mr. Nowicki and River Road’s activity on the Property
“violates the spirit” of the 2013 Injunction and actions which violate the spirit of court orders do
not constitute contempt. Appellants are correct that violating the spirit of an order is not grounds
for contempt. See Marian Shop, Inc. v. Baird, 670 A.2d 671, 673 (Pa. Super. 1996) (stating that
“an order whose specific terms have not been violated will not serve as the basis for a finding of
contempt.”) However, Appellants misread the trial court’s October 15, 2014 opinion. The
opinion states: “While we ultimately conclude that we cannot hold [Appellants] in contempt for
processing [mulch] on the [Property], this activity clearly violates the spirit of the [2013
Injunction].” (October 2014 Op. at 15.) Further, in its Supplemental Opinion issued on
September 1, 2015, the trial court stated that “Appellants could not [] be held in contempt for
their activities related to the [Property] prior to October 15, 2014.” (Trial Ct. Supp. Op.,
September 1, 2015 at 5, R.R. at 137a.) Because the above quotes show that the trial court’s
decision to hold Appellants in contempt did not rest on Appellants processing activities on the
Property, we shall not address this issue any further.
22
least three other portions of the 2013 Injunction (Paragraphs A, D, and E) and that
Appellants do not address these violations in their appeal.
We note that, like our review of a grant of a preliminary injunction discussed
above, our review of contempt orders is highly deferential. “When considering an
appeal from a contempt order,” we place “great reliance . . . upon the discretion of
the trial judge.” Department of Environmental Resources v. Gentile, 683 A.2d
711, 712 (Pa. Cmwlth. 1996). An order of contempt will not be reversed absent a
plain abuse of that discretion. In re Contempt of Cullen, 849 A.2d 1207, 1211 (Pa.
Super. 2004). The Pennsylvania Supreme Court described the abuse of discretion
standard in the civil contempt context as follows:
The term “discretion” imports the exercise of judgment, wisdom and
skill so as to reach a dispassionate conclusion, and discretionary
power can only exist within the framework of the law, and is not
exercised for the purpose of giving effect to the will of the judges.
Discretion must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary action.
Discretion is abused when the course pursued represents not merely
an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. Bowden, 838 A.2d 740, 761-62 (Pa. 2003) (internal citation
omitted).
In a civil contempt proceeding, the burden is on the complaining party to
prove noncompliance with a court order by a preponderance of the evidence. Cecil
Township v. Klements, 821 A.2d 670, 675 (Pa. Cmwlth. 2003). Civil contempt is
only appropriate if the complainant proves the following elements:
23
(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.
Cullen, 849 A.2d at 1210-11. Failing to abide by vague orders is not a basis for
civil contempt. Id. Nor is failing to abide by a court order when the alleged
contemnor is unable to perform and has attempted to perform in good faith. Cecil
Township, 821 A.2d at 675. The “[i]nability to comply is an affirmative defense
which must be proved by the alleged contemnor.” Id.
We find no abuse of discretion in the trial court’s conclusion that the
Township met its burden to prove, by a preponderance of the evidence, that Mr.
Nowicki and River Road violated the 2013 Injunction, and did so volitionally.
Paragraph A of the 2013 Injunction states that “[n]o further materials for the
processing of mulch and firewood may be brought onto the [3-Acre Parcel].”
(2013 Injunction ¶ A, R.R. at 8a.) Mr. McGlynn testified that he observed “at one
point[,] a great deal of pre-ground material, possibly from landscapers or tree
contractors, was brought on [to the 3-Acre Parcel]” before being “pushed onto the
[Property].” (Hr’g Tr. at 67, October 22, 2013.) Mr. McGlynn described that
Appellants were using the 3-Acre Parcel as a “staging area” for the mulch
operation on the Property. (Hr’g Tr. at 66, October 22, 2013.) Mr. Nowicki and
River Road denied bringing new mulch material onto the 3-Acre Parcel, but
offered no probative evidence rebutting Mr. McGlynn’s testimony. (October 2014
Op. at 15.)
24
Paragraph D of the 2013 Injunction limits the hours of operation of mulch
processing and truck traffic to between 7:00 a.m. and 5:00 p.m., Monday through
Saturday. (2013 Injunction ¶ D, R.R. at 9a.) A neighboring landowner testified
that, as of May 2013, blue Pennswood Hauling trucks began arriving between 5:00
a.m. and 5:30 a.m. Monday through Saturday. (Hr’g Tr. at 142-43, 147, October
22, 2013.) The neighbor could not see either the 3-Acre Parcel or the Property
from her home; she only witnessed the trucks driving down the road to the
properties. (Hr’g Tr. at 146, October 22, 2013.) Yet, because the trial court found
that the 3-Acre Parcel was integral to Appellants’ use of the Property and all truck
traffic to the Property enters the 3-Acre Parcel at roughly the same time, the trial
court found Mr. Nowicki and River Road in contempt of paragraph D of the 2013
Injunction. (October 2014 Op. at 19.) Mr. Nowicki and River Road offered only
conflicting testimony to rebut the neighbor’s testimony, which was found not
credible. (October 2014 Op. at 18-19.)
Paragraph E of the 2013 Injunction states that “[n]o wood materials, whether
they be raw materials, chips or mulch piles, may be stored west of the easterly line
drawn on T-17.” (2013 Injunction ¶ E, R.R. at 9a.) The trial court was presented
with photographs showing that a pile of wood material had been stored west of the
line on T-17 as of July 10, 2013, and Mr. McGlynn testified on April 30, 2014 that
a large pile of wood material remained west of the line the morning he testified and
presented the trial court with a photograph showing the wood pile in relation to the
line drawn on T-17. (Hr’g Tr. at 66-71, April 30, 2014.) Mr. Nowicki and River
Road denied that mulch-related materials were stored west of the line, but offered
no proof to rebut Mr. McGlynn’s credible testimony. (October 2014 Op. at 19.)
25
Because Mr. Nowicki and River Road did not rebut Mr. McGlynn’s and the
neighboring landowner’s credible testimony with regard to Mr. Nowicki and River
Road’s violation of Paragraphs A, D, and E of the 2013 Injunction with probative
evidence, the trial court did not abuse its discretion by concluding that the
Township met its burden.
We also find no abuse of discretion in the trial court’s conclusion that Mr.
Nowicki and River Road acted with wrongful intent. Mr. Nowicki and River Road
offered no justification for violating Paragraphs A, D, and E of the 2013 Injunction
and the trial court did not believe Mr. Nowicki’s justifications for violating
Paragraph C of the 2013 Injunction. Mr. Nowicki testified to the events
surrounding the 2013 Injunction in front of the trial court numerous times, and we
defer to the credibility assessment of the trial court. Garr v. Peters, 773 A.2d 183,
189 (Pa. Super. 2001). Furthermore, our review reveals substantial support for the
trial court’s finding of wrongful intent. Mr. Nowicki and River Road understood
the requirement to abide by court orders as they originally agreed to a temporary
injunction on June 8, 2012, which included provisions similar to Paragraphs D and
E of the 2013 Injunction. The trial court found them in contempt of this injunction
and issued the 2013 Injunction. (2013 Injunction at 2, R.R. at 9a.) Notably,
Appellants do not argue on appeal to this Court that the trial court erred in
concluding that Mr. Nowicki and River Road violated Paragraphs A, D, and E of
the 2013 Injunction. Thus, even if Mr. Nowicki and River Road did not act with
wrongful intent when they violated Paragraph C of the 2013 Injunction, the trial
court could find that Mr. Nowicki and River Road acted with wrongful intent when
26
they simply ignored other portions of the 2013 Injunction. Accordingly, the trial
court’s conclusion that Mr. Nowicki and River Road violated the 2013 Injunction
with wrongful intent is not an abuse of discretion.
III. CONCLUSION
In conclusion, we affirm the trial court because Appellants did not preserve
any issues for appellate review. Additionally, as the foregoing analysis explains,
even if Appellants had preserved the issues raised in their Brief to this Court, we
would affirm the trial court because it had sufficient grounds to grant the
Preliminary Injunction and did not abuse its discretion in finding Mr. Nowicki and
River Road in contempt for violating the 2013 Injunction.
________________________________
RENÉE COHN JUBELIRER, Judge
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tinicum Township :
:
v. : No. 2114 C.D. 2014
:
Allan J. Nowicki, River Road :
Quarry, LLC, Pennswood Hauling, :
LLC, and RRQ, LLC, :
:
Appellants :
:
Tinicum Township :
:
v. : No. 734 C.D. 2015
:
Allan J. Nowicki, River Road : Argued: February 8, 2016
Quarry, LLC, Pennswood Hauling, :
LLC, and RRQ, LLC, :
:
Appeal of: Allan J. Nowicki :
ORDER
NOW, March 31, 2016, the October 15, 2014 and March 31, 2015 Orders of
the Court of Common Pleas of Bucks County in the above-captioned matters are
AFFIRMED.
________________________________
RENÉE COHN JUBELIRER, Judge