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 |
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.
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.
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 18th 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.
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:
Thomas A. Steele, Esquire, entered his appearance on behalf of Appellants on December 14, 2020. By order dated December 22, 2020, the court stated:
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:
To continue reading
Request your trial