MDG Downingtown, L.P. v. Kanapesky, M. ( 2022 )

J-A23037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MDG DOWNINGTOWN, L.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW KANAPESKY :
:
Appellant : No. 44 MDA 2022
Appeal from the Order Entered October 28, 2021
In the Court of Common Pleas of Berks County Civil Division at No(s):
19-13767
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: DECEMBER 1, 2022
Appellant, Matthew Kanapesky, appeals from the October 28, 2021,
Order entered in the Court of Common Pleas of Berks County that denied his
request for a Pa.R.Civ.P. 1531(f) hearing on the court’s December 5, 2019,
preliminary injunction enjoining him from making false allegations against
Appellee MDG Downingtown (“MDG”). Because the order from which he
appeals addressed merely one aspect of his larger Motion to Dissolve the
December 5, 2019, preliminary injunction and, thus, did not address and
resolve all claims raised in the motion, it was not a final and appealable order.
Accordingly, we quash.
Given our disposition of the present appeal, an abridged recitation of
relevant facts and procedural history is appropriate. This appeal represents
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* Former Justice specially assigned to the Superior Court.
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the latest litigation in Kanapesky’s seven-year legal dispute with contractor
MDG concerning a public water main project that runs an underground water
pipeline across Kanapesky’s residential property to an adjacent future
residential housing development. This project was made possible by a 2010
Easement Agreement, by which Kanapesky received remuneration in
exchange for granting MDG the right to maintain, repair, replace, and service
the water pipeline in the easement area.
By 2015, however, Kanapesky had begun physically blocking MDG from
completing work on the pipeline and demanding an additional $182,000 for
the easement or, in the alternative, nearly $1,000,000 for the purchase of his
property, if interested parties wished the work to continue. Consequently, on
May 11, 2017, MDG sought to obtain its third-party beneficiary rights under
the Easement Agreement by filing with the trial court an emergency petition
requesting, inter alia, a preliminary injunction to stop Kanapesky’s obstructive
tactics. On May 26, 2017, the trial court granted what would become the first
of two preliminary injunctions.1
On June 23, 2017, Kanapesky filed an interlocutory appeal. Observing
that he had failed to comply with numerous appellate rules, we filed our
October 24, 2019 memorandum decision deeming his issues waived and
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1 As a result of the preliminary injunction, MDG completed installation of the
pipeline and related work, and fully restored Kanapesky’s property by July 13,
2017. Nevertheless, Kanapesky prevented MDG from completing all work
under the Easement Agreement by denying MDG access necessary to install,
inter alia, water taps.
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affirming the trial court’s May 26, 2017 order granting the first preliminary
injunction. See MDG Downingtown, L.P. v. Kanapesky, 221 A.3d 1254,
**1-2 (Pa. Super. 2019) (unpublished memorandum decision). Moreover,
because we found Kanapesky’s appeal frivolous, one patently devoid of merit
and “taken for the purpose of causing delay and increasing [] expenses[,]” we
ordered him to pay MDG’s appellate counsel fees. Id.2
The current matter involves both the concomitant disparaging public
statements that Kanapesky continued to make about MDG throughout the
relevant timeline up to and including 2019 and the trial court’s responsive
order of December 5, 2019, imposing a second preliminary injunction upon
Kanapesky to enjoin him from making such false or threatening public
statements.
Specifically, Kanapesky verbally harassed MDG workers on the worksite,
posted damning accusations about MDG and its subcontractors on social
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2 Subsequently, on March 11, 2020, the trial court entered an order
transforming the 2017 preliminary injunction into a final, permanent
injunction. Over 20 months later, Kanapesky, filed his motion to reconsider
the final order, which the trial court denied. On appeal, observing that the
March 11, 2020 order was a final order under Pa.R.A.P. 341, we quashed
pursuant to Pa.R.A.P. 903 (imposing 30-day appeal period in civil actions).
We noted additionally, however, that Kanapesky’s motion to reconsider failed
to extend the filing time for his notice of appeal, not only because the motion
was patently belated—even after considering all pertinent delays caused by
the ongoing Covid-19 pandemic—but also because it failed to raise any new
or viable claims that had not already been raised in prior proceedings before
the trial court. MDG Downingtown, L.P. v. Kanapesky, No. 451 EDA 2022,
2022 WL 5325986 (unpublished memorandum filed on Oct. 7, 2022).
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media, and filed accusatory reports to the Pennsylvania Department of
Environmental Protection (“DEP”) alleging that MDG’s work violated governing
rules and regulations, reports which DEP would subsequently dismiss as
baseless. Years after the construction phase on his property had been
completed, Kanapesky continued to make what the trial court described as
“disruptive presentations at the East Brandywine Township Board of
Supervisors’ meetings, where Appellant falsely accused MDG of [having
committed] regulatory violations during the construction on his property.”
Trial Court Opinion, 3/13/22, at 3.
By 2019, MDG believed Kanapesky’s accusations were unfairly
jeopardizing a good working relationship between itself and the township that
it deemed critical to both the completion of the township project and its pursuit
of future business opportunities in the region. Therefore, in August of 2019,
it filed a civil complaint in breach of contract, defamation, commercial
disparagement, abuse of process, and tortious interference with contractual
relationships. Contemporaneously, it also filed for a second preliminary
injunction, one that would enjoin Kanapesky from communicating or having
contact with MDG and its business associates, and from communicating or
publishing false or threatening information about MDG.
MDG sought the additional preliminary injunction not only for the above-
cited reasons but also on evidence that Kanapesky had sent video clips to the
township’s manager accusing the manager and a senior civil engineer with
DEP of corruption for not taking legal action against MDG on the basis of his
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allegations. Kanapesky further contacted the DEP engineer, threatened that
he knew the engineer’s residential address, and attempted unsuccessfully to
serve a subpoena on him at his home.
At the preliminary injunction hearing of December 4, 2019, MDG
presented the above-described evidence along with testimony from its general
counsel regarding the consequences of Kanapesky’s actions:
I personally had to spend significant hours and resources to
combat threatening text messages, postings on public social
media, contacts to outside agencies, the DEP, Chester County
Conservation District, the township, the authority, the FBI. We
are constantly being bombarded. We contacted our insurance
agent.
He [, Kanapesky,] threats [sic] any name that he obtains that
relate [sic] to [MDG]. They will hear from him in a threatening
manner and he make[s] derogatory comments about [MDG]
everywhere such as, we are damaging lakes. We are not doing
what we have to do. We are criminals.
N.T., 12/4/19, at 61-62.
Appellant acted pro se at the hearing and presented no evidence. He
wished to testify, but he refused to take an oath swearing or affirming that he
would tell the truth. The trial court, therefore, determined that MDG’s
evidence was uncontroverted.
On December 5, 2019, the trial court entered its second preliminary
injunction order preliminarily enjoining and restraining Kanapesky from
contact with, and communication and publication of false accusations about,
MDG, and from causing any other person to engage in conduct in violation of
this order during the pendency of the litigation. Kanapesky neither appealed
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from the December 5, 2019, order nor demanded a hearing pursuant to
Pa.R.Civ.P. 1531(f).3
For reasons of Covid-19 and related scheduling difficulties and delays,
the damages hearing pertaining to the civil suit was not held until September
2, 2021. Testimony was not completed on that date, and the subsequent
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3 Rule 1531(f) provides an enjoined party with, “the free choice of a prompt
final hearing” upon demand after a preliminary injunction involving freedom
of expression is issued. Pa.R.Civ.P. 1531(f), Explanatory Comments
(emphasis added). The Comments continue:
[The enjoined] always has the option to decline this special
procedure and to proceed in due course by preliminary objection
or by filing an answer or by discovery or by any other procedural
techniques available in the ordinary equity action. It is the
[enjoined] who may choose whether to suffer under the
preliminary or special injunction for an extended period of
his own choice, or to use the new guarantees of prompt and
final disposition of the matter.
Id. (emphasis added).
As described supra, the lower court entered its second preliminary injunction
against Kanapesky on December 5, 2019, enjoining him from making further
false allegations against MDG and others. Rather than file a prompt demand
for a Rule 1531(f), Kanapesky chose instead, in the words of the explanatory
comments above, “to suffer under the preliminary injunction for an extended
period of his own choice[.]”
Specifically, Kanapesky allowed two years to pass from the date on which the
lower court entered its preliminary injunction against him before he elected to
make his demand for a final hearing under Rule 1531(f). The explanatory
comments clearly set forth, however, that time is of the essence in matters
involving Rule 1531(f), and a claimant must choose either to live under the
preliminary injunction or demand a prompt final disposition. Kanapesky failed
to heed this directive. Given our determination that quashal applies to the
present appeal, we need not address how his dilatory response to the second
preliminary injunction order bears on the issues he raises herein.
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court date of October 28, 2021, comprised only counsels’ motions and
arguments. Testimony thus was slated for December 1, 2021.
However, on October 25, 2021, Kanapesky filed a “Motion to Dissolve
or Modify the Preliminary Injunction Order of December 5, 2019.” He claimed,
specifically, that the injunction enjoined him from exercising his right to free
expression concerning, inter alia, governmental actions. He also demanded a
final hearing within three days after his demand, pursuant to Rule 1531(f).
The trial court noted that Kanapesky had never requested a final, Rule
1531(f) hearing in the two years since the second preliminary injunction was
entered. As for the December 5, 2019, preliminary injunction itself, the trial
court opined that it was narrowly tailored and did not prevent Kanapesky from
seeking relief based on legitimate, truthful grievances.
To that point, the trial court observed Kanapesky once again offered
only false accusations of regulatory violations committed by MDG, accusations
which DEP had investigated and determined to be meritless. Accordingly, the
trial court entered its October 28, 2021, order denying Kanapesky’s request
for a Rule 1531(f) hearing. Notably, the trial court had not yet granted or
denied Appellant’s larger Motion to Dissolve the December 5, 2019,
preliminary injunction, and it reserved doing so until receiving a response from
MDG.
Nevertheless, on November 19, 2021, Kanapesky filed the present
appeal from this order. In response, MDG filed with this Court an “Application
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to Quash Appeal and for Sanctions.” We denied MDG’s Application without
prejudice to its right to raise the issue with this Panel, which it has done.
Initially, we address MDG’s argument in favor of quashing the present
appeal, which it claims is not only Kanapesky’s latest installment in a pattern
of frivolous filings intended solely to cause delay4 but also one taken from the
trial court’s October 28, 2021, order that was neither a final nor an appealable
order. In support of this latter point, MDG argues that the October 28, 2021,
order did not resolve all matters raised by Kanapesky’s Motion to Dissolve the
December 5, 2019, order imposing the second preliminary injunction, because
the order neither granted nor denied Kanapesky’s central request to dissolve
the preliminary injunction.
Instead, MDG maintains, the October 28, 2021, order merely denied
Kanapesky’s request for a Rule 1531(f) final hearing on the December 5, 2019,
preliminary injunction because the request was patently belated under the
terms of the rule itself and because the trial court had already conducted a
full hearing prior to imposing the preliminary injunction. As for the motion’s
main request that the trial court dissolve the preliminary injunction, the trial
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4 As acknowledged supra, MDG posits that Kanapesky’s purpose behind filing
the instant appeal was to postpone the damages hearing on MDG’s civil action
against him. Specifically, MDG maintains, “This appeal is dilatory, obdurate
and vexatious, and it represents Kanapesky’s attempts to misuse the litigation
process in an effort to harass MDG, cause delays, and increase litigation costs.
See, Pa.R.A.P. 2744 (‘an appellate court may award . . . a reasonable counsel
fee . . . if it determines that an appeal is frivolous or taken solely for delay or
that the conduct . . . is dilatory, obdurate or vexatious’).” Appellee’s
Application to Quash Appeal and for Sanctions, filed 1/27/22, at 11.
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court had expressly reserved making a final decision in that regard until it
received MDG’s response to the motion. On November 1, 2021, MDG filed its
response, but before the trial court announced its final ruling, Kanapesky filed
the present appeal.
We, therefore, must determine whether Kanapesky has appealed from
a final order. See Pa.R.A.P. 341(b)(1); see also Gutteridge v. A.P. Green
Servs., Inc., 804 A.2d 643, 650 (Pa. Super. 2002) (finality of order appealed
from is jurisdictional and must be addressed prior to merits review).
Generally, a final order is an order that disposes of all claims and parties.
Pa.R.A.P. 341(b)(1). “Quashal is usually appropriate where the order below
was unappealable, . . . the appeal was untimely, . . . or the Court otherwise
lacked jurisdiction[.]” Sahutsky v. H.H. Knoebel Sons, 782 A.2d 996, 1001
n. 3 (Pa. 2001) (citations omitted).
Here, the record demonstrates that the October 28, 2021, order from
which Kanapesky has appealed was not a final order, as it did not dispose of
the primary claim within Kanapesky’s Motion to Dissolve, namely, that the
December 5, 2019, preliminary injunction should be dissolved. While the
order denied Kanapesky’s request for a Rule 1531(f) hearing, the court had
reserved rendering a final decision on Kanapesky’s motion pending receipt of
MDG’s response. Before the court entered a final decision either granting or
denying Kanapesky’s motion to dissolve, Kanapesky filed the instant appeal.
Therefore, because the order from which Kanapesky has appealed was
not a final order disposing of all claims raised in his Motion to Dissolve, we
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conclude that the order was not appealable. Accordingly, we quash the
present appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/01/2022
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