Porter v. Nikita Lodging, Inc.

• Decision Date: 02 May 2022
• Docket Number: 1159 WDA 2021
• Parties: William PORTER, Paul Rhodes, Jr., Kenneth J. Rhodes, Marian Dick, and Barbara Hughes, and Adam R. Henderson v. NIKITA LODGING, INC., Nikita Lodging 2 LLC, Nitin Patel, Harshad S. Patel, Keyur Patel, Himansu H. Patel, Janak M. Patel, and Nayana J. Patel Appellants
• Court: Pennsylvania Superior Court

274 A.3d 1272

William PORTER, Paul Rhodes, Jr., Kenneth J. Rhodes, Marian Dick, and Barbara Hughes, and Adam R. Henderson

v.NIKITA LODGING, INC., Nikita Lodging 2 LLC, Nitin Patel, Harshad S. Patel, Keyur Patel, Himansu H. Patel, Janak M. Patel, and Nayana J. Patel Appellants

No. 1159 WDA 2021

Superior Court of Pennsylvania.

Filed: May 2, 2022

Thomas A. Steele, Waynesburg, for appellants.

David C. Hook, Waynesburg, for Marian Dick, Barbara Hughes, William Porter, Kenneth J. Rhodes, and Paul Rhodes, Jr., appellees.

Andrew G. Jenkins, for Adam Henderson, appellee.

BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J.^*

OPINION BY MURRAY, J.:

Nikita Lodging, Inc., Nikita Lodging 2 LLC, Nitin Patel, Harshad S. Patel, Keyur Patel, Himansu H. Patel, Janak M. Patel, and Nayana J. Patel, (collectively, Appellants), appeal from both "the Order entered in this matter on the 2nd day of September, 2021, ... along with the November 6, 2019 Order that is referenced and attached to the September 2, 2021 Order." Notice of Appeal, 9/30/21. After careful consideration, we quash.

A detailed recitation of the procedural history is relevant to our analysis and disposition.

Procedural History

This action arose because Appellants, in the process of excavating land to build a hotel, adversely impacted a private family cemetery (Rhodes Cemetery).

Appellees William Porter, Paul Rhodes, Jr., Kenneth J. Rhodes, Marian Dick, Barbara Hughes and Adam R. Henderson (collectively, Plaintiffs), are the descendants of individuals interred at Rhodes Cemetery. Plaintiffs have an undisputed right of access to visit and maintain the cemetery. They allege that as a result of Appellants’ excavation, Rhodes Cemetery "sits at the top of an unstable butte," and is "inaccessible to Plaintiffs." Plaintiffs’ Third Amended Complaint, 5/29/18, at 4. On April 5, 2018, Plaintiffs filed their first complaint against Appellants. Plaintiffs’ claims include trespass, nuisance, intentional infliction of emotional distress, ejectment, and defiant trespass. Id. at 5-9 (unnumbered) (seeking mandatory injunction and monetary damages).

On August 9, 2018, the parties entered into a settlement agreement and litigation was stayed by court order on August 23, 2018. However, Appellants failed to comply with the settlement agreement. On November 5, 2019, Plaintiffs presented a Motion for Mandatory Preliminary Injunction, stating that Appellants, from "August of 2018, to the time of filing of this Motion," completed "absolutely no work on the Rhodes Cemetery that has increased the stabilization of the Cemetery." Motion, 11/5/19, at 2. Plaintiffs alleged the cemetery was "in imminent danger of collapse."¹ Id.

On November 6, 2019, the trial court convened a hearing, after which it entered a five-page order. The court determined "an injunction is warranted , [although] the matter has been resolved largely by agreement." Order, 11/6/19, at 1-2. The court stated, "as this is a preliminary injunction and the [c]ourt has great concerns about the stability of the cemetery, which is now elevated at twenty (20) feet above grade, the focus of this Order and the concern of the Plaintiffs is primarily to achieve completion of the wall around that cemetery as described by this Order." Id. at 4 (emphasis added). The order included numerous directives. The court ordered Appellants to "take action" within 72 hours to stabilize and waterproof the excavated area, and provide photographic proof to Plaintiffs’ counsel within 5 days of completion. Id. at 2. The court further ordered that Appellants would be "subject to a $1,000.00 assessment per day for failure to achieve this first step of the preliminary injunction." Id. Also, as Appellants’ counsel, Brandon K. Meyer, Esquire, had requested permission to withdraw from representation, the court stated it would grant the request in 50 days, "in the event Mr. Meyer continues to seek to withdraw[.]" Id. at 4.²

Less than two weeks later, Plaintiffs filed a motion for sanctions. In response, the court entered an order stating:

AND NOW, this 18^th day of November, 2019, the Plaintiffs have appeared this date seeking relief as a result of the [c]ourt's Order of November 6, 2019. The Plaintiffs appear by their attorneys[. Appellants] are present along with their attorney, Mr. Meyer. The parties have agreed that by its Order of November 6th, the [c]ourt indicated that in the event that the footer was not completed, an assessment of $1,000.00 would begin on November 21, 2019. The parties have agreed to extend that deadline until Wednesday, November 27, 2019. The effect of this Order is that [Appellants are] now GRANTED until November 27, 2019 to complete the footer and provide evidence of that completion to Plaintiffs’ counsel. Failure to complete by that date shall immediately result in penalties of $1,000.00 per day beginning Thursday, November 28, 2019. This is consistent with the Order, and the remaining deadlines previously set for completion of the wall remain.

Order, 11/18/19, at 1-2.

Approximately two months later, Plaintiffs filed a second motion for sanctions. In response, the court entered an order dated January 27, 2020, in which it found Appellants "failed to comply with the [ ] Order dated November 6, 2019," granted Plaintiffs’ motion for sanctions, and ordered that Appellants,

pay into the Court the sum of One Thousand United States Dollars ($1,000) per day, beginning on December 26, 2019, as a sanction for its failure to comply with the Court's Order dated November 6, 2019 directing [Appellants] to construct a stabilizing wall around the Rhodes Cemetery, until [Appellants] are found to be in compliance with that Order. The disposition of any funds so received shall be determined by further Order of Court — total amount due now is $30,000.00. Money to be paid to Prothonotary.

Order, 1/27/20, at 2.

Approximately 10 months later, Plaintiffs filed a third motion for sanctions, alleging Appellants failed to comply with the November 6, 2019 order requiring the completion of a stabilizing wall. On November 19, 2020, the court entered an order observing that Appellants lacked legal representation, and stating:

We do recognize that it is appropriate to move forward in this case and we are concerned with the inactions of [Appellants]. The parties are now on notice by separate Court Order, the matter shall be set for a hearing with regard to the requested sanctions. ...

The [c]ourt notes that certain [Appellants] are corporations, and the rules of procedure require that those corporations be represented by counsel. The individual [Appellants] and corporate [Appellants] are now advised that they must seek counsel for the next scheduled hearing[.]

Order, 11/19/20, at 1-2.

Thomas A. Steele, Esquire, entered his appearance on behalf of Appellants on December 14, 2020. By order dated December 22, 2020, the court stated:

[T]his is the time that has been set aside by the [c]ourt to address the Plaintiffs’ motions with regard to sanctions.

... [Appellants] have not met their obligation with regard to certain construction surrounding the Rhodes Cemetery[.] ...

The [c]ourt wishes to memorialize that Attorney Thomas Steele has now entered his appearance for [Appellants]. [Appellants] were without counsel for a significant period of time. ...

In anticipation of the motion for sanctions, the [c]ourt takes the following actions:

The parties are now on notice that on Wednesday, January 27, 2021, all parties and the [c]ourt will meet at 4:00 P.M. for a view of the property that is the subject of the lawsuit.

The sanctions hearing that is scheduled for this date is CONTINUED with the matter to be heard on Tuesday, February 2, 2021[.]

Order, 12/22/20, at 1-2.

In a four-page order dated February 2, 2021, the trial court granted a request from Appellants to continue the sanctions hearing, "which is now scheduled for this date ... for approximately ninety (90) days." Order, 2/2/21, at 2. The court stated it had viewed the property and "progress has been made and a stone wall has now been erected around the Rhodes Cemetery[.]" Id. The court further observed that Appellants had not paid $30,000 as ordered on January 27, 2020, and stayed the deposit "pending further order of this [c]ourt." Id. at 2-3. The court also ordered Appellants to pay Plaintiffs’ respective counsel fees of $4,500 and $6,250 within 60 days. Id. at 3. The court denied Appellants’ request to stay the accrual of daily sanctions , but stated it was "not adverse to considering a reduction or discharging [Appellants] from the payment of certain sanctions as it has been the intention of the [c]ourt for the sanctions to prompt [Appellants] into action or to have sufficient monetary funds deposited as a source of funding to have the work performed." Id. On February 10, 2021, the court ordered that the sanctions hearing occur on May 10, 2021.

On May 10, 2021, Plaintiffs filed a Motion for Release of Funds held by the Greene County Prothonotary, and the parties and trial court convened for a hearing as ordered by the court on February 2, 2021. By order dated May 10, 2021, the court stated that Plaintiffs’ request for sanctions was "properly before the [c]ourt" and it "would take the matter under advisement ... and make a determination of appropriate sanctions by separate court order." Order, 5/10/21, at 2.

On September 2, 2021, the trial court issued the order from which precipitated Appellants’ notice of appeal. Within the seven-page order, the court stated:

In [the] November 6, 2019 Order, the [c]ourt focused on stabilizing the grounds around a historic cemetery that had been excavated by [Appellants]. Numerous directives were imposed on [Appellants] , most importantly, [Appellants] were granted forty (40) days from the date of the Order to place large cement blocks upon a footer and the wall to be substantially completed. The [c]ourt had directed that a sanction of $1,000.00 per day be imposed for any day in which [Appellants] did not achieve

...