Argued: April 6, 2017
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E.
PATRICIA A. MCCULLOUGH, JUDGE
S. Nied, Paul J. Nied, and Foxley Farm, LLC (Defendants)
appeal the March 8, 2016 order of the Court of Common Pleas
of Westmoreland County (trial court), which ordered
Defendants to pay counsel fees in the amount of $53, 563.53,
pursuant to its August 7, 2015 order finding Defendants in
contempt for violating a consent order (Consent Order)
executed by counsel for Defendants, Ligonier Township
(Township), Christopher and Carolyn Turner, Donald and
Carolyn Korb, and David and Sally Ann Barnhart
and Procedural History
and Paul Nied (Nieds) are the owners of an approximately 59
acre tract of realty located at 118 Foxley Farm Lane,
Ligonier Township, Pennsylvania (Property), which contains a
single family residence and various outbuildings. The
Property is located in the Township's R-2 Residential
District. Defendants regularly engaged in commercial
activities at the Property that are generally prohibited in
the zoning district, such as: overnight accommodation of
guests; large group activities and gatherings; political
fundraising and corporate events; graduation parties and
miscellaneous celebrations; and weddings. The Nieds conducted
these commercial activities through Foxley Farm, LLC.
September 6, 2012, a Township Zoning Officer issued
Defendants a notice of violation based on their commercial
use of the Property. Specifically, the notice provided that
Defendants' violation was "[c]ommercial use of
property and buildings without proper approvals and permits,
failure to obtain Conditional Use Permit, Occupancy Permit,
violation of Agricultural Requirements, Conducting activities
not permitted as Accessory Farm businesses." (Certified
Record (C.R.) at No. 1, Exhibit 3.)
subsequently applied for zoning occupancy permits, seeking
authorization to use the Property for: 1) residential and
agricultural use; and 2) accessory farm business, i.e.,
"agritourism and includes such activities as
gardening/farming demonstrations and educational programs,
farm-to-table events; farm stays, family reunions and
weddings." (C.R. at No. 1, Exhibit 4.) The Zoning
Officer issued a permit authorizing the Property's use
for residential and agricultural purposes. However,
Defendants' application to conduct certain commercial
activities at the Property was denied.
appealed the Zoning Officer's decision to the Township
Zoning Hearing Board (Board), alleging that the proposed
commercial uses were permitted as accessory farm business.
The Board conducted a hearing and, on February 26, 2013,
issued a decision sustaining the Zoning Officer's denial
of Defendants' application to conduct commercial
activities at the Property.
March 14, 2013, the Township filed a complaint in the trial
court, alleging that Defendants continued to engage in
unauthorized and unpermitted commercial activities at the
Property. The Township requested that the trial court order
Defendants to immediately cease and desist from conducting
commercial business activities at the Property and enjoin
Defendants from performing further commercial activities at
the Property until the necessary permits are issued.
(Reproduced Record (R.R.) at 1a-9a.)
hearing on the Township's request for injunction was
scheduled for April 12, 2013. However, that day the parties
engaged in negotiations and the trial court entered the
Consent Order, which was executed by counsel for the
Township, Defendants, and Intervenors, and provided that:
1. [The Township's] request for injunction is granted to
prohibit overnight accommodations and non-approved commercial
activities unless, or until, a certificate of occupancy is
issued to permit said activities, other than those activities
specifically set forth below.
2. Pursuant to this order, [Defendants] are permitted to
conduct not more than eleven (11) events at the property,
none of which may exceed two hundred (200) attendees, and
nine (9) of which may not exceed one hundred fifty (150)
attendees. For the purposes of this order, an event is
defined as having ten (10) unrelated attendees. A schedule of
said events will be provided to counsel for all parties no
later than end of business on Monday April 15, 2013.
3. With respect to all events, there will be a third party
security officer employed by Laidlaw Co. on site at all times
to confirm compliance with this order and to manage traffic
and parking. Said officer will be at the expense of the
Defendants and shall be available to communicate with
4. All activities related to events will cease no later than
5. All parking shall take place along the paved lanes and
within the horse ring area.
6. No music or audio equipment shall be permitted outside of
the structure where the event is being held.
7. Defendants shall seek approval for on-lot sewage disposal
and comply with all Township ordinances and [Department of
Environmental Protection] regulations relating to sanitary
sewage, to the satisfaction of the sewage enforcement
officer, prior to the commencement of any event.
8. Defendants shall immediately cease any and all marketing
or advertising of weddings, or wedding related events at the
[P]roperty unless or until the issuance of a certificate of
occupancy specifically permitting weddings.
9. Defendants shall immediately cease any and all marketing
or advertising of overnight accommodations of guests at the
[P]roperty unless, or until, the issuance of a certificate of
occupancy specifically permitting overnight accommodations.
10. The Defendants shall withdraw the pending zoning appeal,
Civil Action No. 1335 of 2013, with prejudice, and agree not
to seek approval for weddings or wedding related events at
the site unless a zoning amendment or legislation is enacted
to specifically allow weddings at the site.
11. Starting today, there will be no bookings of overnight
accommodations or non-approved commercial activities,
including weddings or wedding-related events unless or until
a certificate of occupancy is issued specifically allowing
such activities or weddings.
12. Should any enforcement action be brought pursuant to this
order the prevailing party will be entitled to reasonable
attorney's fees of other parties.
(R.R. at 23a-25a.)
September 20, 2013, Intervenors, joined by the Township,
filed a Petition for Rule to Show Cause Why Defendants Should
Not Be Held in Contempt of the Consent Order, alleging that
Defendants knowingly violated the same because, inter
alia, they conducted unpermitted events at the Property.
(R.R. at 27a-33a.)
filed an answer denying they violated the Consent Order,
raising affirmative defenses, and alleging that Intervenors
were barred from bringing the action pursuant to the doctrine
of unclean hands because Intervenors had contacted
individuals who contracted with Defendants and attempted to
induce them to cancel their agreements. Additionally,
Defendants averred that the events were permitted accessory
events under applicable zoning laws and, similarly,
Intervenors were estopped from pursuing the action because
Defendants relied on the Township's actions and
statements when conducting activities at the Property. (R.R.
April 14, 2014, the trial court conducted a hearing on the
issue of alleged contempt, wherein Ms. Nied and ...