J-A24027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEFFREY LYNN CRESSWELL                                 IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellant

                          v.

SHEILA KAYE CRESSWELL, N/K/A SHEILA
KAYE CRESSWELL ECKERT, JULIE MARIE
ECKERT, MARTIN MEADE KOBSIK AND
MARTIN PHILLIP KOBSIK

                            Appellees                       No. 565 WDA 2017


                    Appeal from the Order Entered March 13, 2017
                    In the Court of Common Pleas of Mercer County
                        Civil Division at No(s): 2600-2015, C.A.

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                        FILED NOVEMBER 14, 2017

        Appellant Jeffrey Lynn Cresswell appeals from the order entered on

March 13, 2017, denying his motions to hold Appellees Martin Meade Kobsik

and Martin Phillip Kobsik in contempt and requesting an award of counsel

fees.1 We affirm.

        On August 31, 2015, Cresswell commenced this action by filing a

complaint against his former wife Sheila Kaye Cresswell, Julie Marie Eckert,

and the Kobsiks. Compl., 8/31/15, at ¶¶ 2-6. Cresswell “alleged that [the

Kobsiks] unlawfully entered onto [Cresswell’s] real property and unlawfully

removed items of personalty.” Trial Ct. Op. at 2; see also Compl., 8/31/15,

at ¶¶ 12-21. The complaint attached a list of the property at issue, and one

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1
    The other captioned defendants are not parties to this appeal.
J-A24027-17


item on that list was an “International diesel farm tractor with attachments.”

Ex. B to Compl.    The complaint stated claims against each defendant for

conversion, trespass to chattels, trespass to land, civil conspiracy, replevin,

and punitive damages.     Compl., 8/31/15, at ¶¶ 22-59.       Cresswell “sought

return of the items or damages for their value,” which he approximated as

totaling $47,105. Trial Ct. Op. at 2; see also Ex. B. to Compl.

      Prior to the start of trial, Cresswell and the Kobsiks agreed to resolve

their dispute. Trial Ct. Op. at 2. The agreement was read into the record

and memorialized as a court order dated January 17, 2017:

      AND NOW, this 17th day of January 2017, Defendants
      Martin Meade Kobsik and Martin Phillip Kobsik have reached a
      settlement. IT IS HEREBY ORDERED that said Defendants shall
      pay the sum of $2500.00 to the Plaintiff this date, and said
      Plaintiff shall be permitted to retrieve the International tractor
      and attachments in Defendants’ possession at his earliest
      convenience.      The parties shall work with each other to
      effectuate said pick up.

      The Plaintiff shall file the appropriate Praecipe to Discontinue.

Order, 1/17/17 (read into the record at N.T., 1/17/17, at 6).

      On February 10, 2017, Cresswell petitioned for an adjudication that

the Kobsiks were in contempt because they had not returned all of the

“attachments” contemplated under the January 17, 2017 order.              At an

evidentiary hearing held on the petition on March 13, 2017, Cresswell

testified that in the fall of 2016 he went to the Kobsiks’ residence to inspect

the property that was to be returned to him and observed attachments for a

Kioti tractor — a different tractor from the International tractor that had

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been taken from Cresswell’s property. Cresswell contended that the Kobsiks

were obligated to give those attachments to him as part of the settlement.

Martin Meade Kobsik testified that the Kioti attachments were for a tractor

that they Kobsiks were in the process of purchasing and were never part of

their settlement with Cresswell. Trial Ct. Op. at 2-3, 6 (citing N.T., 3/13/17,

at 16-17).2

       The trial court denied Cresswell’s motion.      It found the settlement

required return of the “International tractor and attachments” and that it

therefore did not refer to the Kioti tractor attachments. Trial Ct. Op. at 3.

Cresswell then filed this timely appeal, in which he presents the following

issues for our review:

       I.    Did the trial court commit reversible error by denying
       [Cresswell’s] Petition for Adjudication of Indirect Civil Contempt
       as the [trial c]ourt determined that the settlement between the
       Appellant     and    Appellees,   Martin    Meade    Kobsik    and
       Martin Phillip Kobsik, only included attachments within the
       [Kobsiks’] possession purchased for the International tractor
       when the parties agreed that the attachments within the
       [Kobsiks’] possession were to be included as stated in the Order
       of Court dated January 17, 2017?


____________________________________________
2
  The record is unclear as to whether the Kobsiks were in possession of the
Kioti tractor when Cresswell visited their residence in the fall of 2016. When
asked when he received the Kioti tractor, Martin Meade Kobsik answered,
“We got it from a friend who is going through a divorce. It remained in his
possession until the sale of his house. We have been making payments on it
for six months. We took possession of it in October or November [2016].”
N.T., 3/13/17, at 16. Cresswell was at the Kobsiks’ residence in October
2016. Id. Kobsik explained that he was in possession of the attachments
for the Kioti tractor prior to taking possession of the Kioti tractor itself, even
though he had already “been making payments” on the Kioti tractor. Id.

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      II.   Did the trial court commit reversible error by ruling that
      the Appellees, Martin Meade Kobsik and Martin Phillip Kobsik,
      were not in contempt of [the trial c]ourt based upon their
      assertion that the additional tractor attachments were acquired
      for use with a Kioti tractor that was purchased subsequent to
      [Cresswell] observing the additional attachments at the
      [Kobsiks’] residence?

      III. Did the trial [c]ourt commit reversible error in deciding
      that the testimony of Appellee Martin Meade Kobsik was credible
      concerning the intent to utilize the additional tractor attachments
      with the Kioti tractor, which was purchased subsequent to
      [Cresswell] observing the attachments at issue while inspecting
      the [Kobsiks’] residence, Appellee [Martin Meade] Kobsik
      testified he did not utilize the tractor and he stated that several
      of the attachments did not require an operational power take-off
      demonstrating that those attachments could have been utilized
      with the International tractor?

      IV.   Did the trial court err in determining that the additional
      tractor attachments sought by [Cresswell] in his Petition for
      Adjudication of Indirect Civil Contempt were purchased for a
      tractor the [Kobsiks] were not in possession of until
      approximately one (1) month after the attachments were
      observed by [Cresswell] on the [Kobsiks’] residence and the
      attachments were compatible with the International tractor?

      V.     Did the trial [c]ourt err in not declaring that the settlement
      reached between [Cresswell] and Appellees, Martin Meade
      Kobsik and Martin Phillip Kobsik, was void based upon an
      apparent mutual mistake as to the terms and conditions of the
      settlement agreement entered on the record and memorialized
      in the [trial c]ourt’s Order dated January 17, 2017 as the
      inclusion of the attachments within the [Kobsiks’] possession
      constituted an essential term of the settlement agreement?

Cresswell’s Brief at 5-6.

      Our standard of review follows:

      When considering an appeal from an order holding a party in
      contempt for failure to comply with a court order, our scope of
      review is narrow: we will reverse only upon a showing the court
      abused its discretion. We also must consider that [e]ach court is
      the exclusive judge of contempts against its process.       The
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     contempt power is essential to the preservation of the court’s
     authority and prevents the administration of justice from falling
     into disrepute. When reviewing an appeal from a contempt
     order, the appellate court must place great reliance upon the
     discretion of the trial judge. The court abuses its discretion if it
     misapplies the law or exercises its discretion in a manner lacking
     reason.

Habjan v. Habjan, 73 A.3d 630, 637 (Pa. Super. 2013) (internal brackets,

citations, and quotation marks omitted; some additional formatting).

     “In proceedings for civil contempt of court, the general rule is that the

burden of proof rests with the complaining party to demonstrate that the

defendant is in noncompliance with a court order.” Sutch v. Roxborough

Mem'l Hosp., 142 A.3d 38, 68 (Pa. Super.), appeal denied, 163 A.3d 399

(Pa. 2016).   Here, that order memorializes a settlement agreement.         We

have held that —

     Settlement and release agreements are construed in the same
     manner as contracts generally. The intention of the parties to a
     written release is paramount.     Therefore, a settlement and
     release normally covers matters that can be fairly said to have
     been contemplated by the parties when the agreement was
     signed.    A settlement and release agreement should be
     interpreted in a manner which ascribes the most reasonable,
     probable and natural conduct of the parties, bearing in mind the
     objects manifestly to be accomplished.

Nationwide Ins. Co. v. Schneider, 906 A.2d 586, 595 (Pa. Super. 2006)

(en banc) (internal brackets, citations, and quotation marks omitted), aff’d,

960 A.2d 442 (Pa. 2008).

     Cresswell first contends:

     The trial court committed reversible error by denying Appellant’s
     Petition for Adjudication of Indirect Civil Contempt as the [trial
     c]ourt determined that the settlement between the Appellant
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       and Appellees, Martin Meade Kobsik and Martin Phillip Kobsik,
       only included attachments within the Appellees’ possession
       purchased for the International tractor when the parties agreed
       that they attachments within the Appellees’ possession were to
       be included as stated in the Order of Court dated January 17,
       2017.
       ...
       The trial court misconstrued the rules of contract interpretation
       and the language contained within the Order of Court dated
       January 17, 2017, in its Opinion dated May 10, 2017. The [trial
       c]ourt inserted its own interpretation of the contract by delving
       into the intentions of the parties and not strictly enforcing the
       settlement agreement as it was stated on the record without
       objection.

Cresswell’s Brief at 18, 20. The trial court rejected this argument, stating:

“The   only   logical   reading   of   the   phrase   ‘International   tractor   and

attachments’ in the settlement order is that it applied solely to attachments

for the International tractor. Those are the attachments [Cresswell] sought

in his complaint.” Trial Ct. Op. at 5. The trial court characterizes Cresswell’s

assertion that the other items were part of the agreement as “at best,

disingenuous.” Id. at 6. We agree with the trial court.

       As the Kobsiks point out, the settlement order “contemplates only the

International tractor and the attachments that correspond with it, all of

which were previously owned by [Cresswell].           Simply put, the agreement

was to return [Cresswell’s] property to him.”             Kobsiks’ Brief at 2-3.

Construing the settlement agreement “in a manner which ascribes the most

reasonable, probable and natural conduct of the parties,” Nationwide Ins.,

906 A.2d at 595, the phrase “International tractor and attachments in

Defendants’ possession” cannot mean anything other than the attachments

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J-A24027-17


for the International tractor that were in the Kobsiks’ possession.            The

settlement agreement says nothing about attachments for other types of

tractors or about other attachments that had not previously been owned by

Cresswell.   Cresswell’s construction of the phrase as including all other

attachments that he never owned is, as the trial court held, disingenuous.

      Cresswell’s second, third, and fourth issues challenge credibility

determinations made by the trial court regarding the Kobsiks’ assertions that

they purchased the Kioti tractor attachments for use with a Kioti tractor they

were in the process of acquiring.        Questions of credibility are for the trial

court, and we will not disturb a trial court’s assessment of the evidence. As

we have explained:

      In a non-jury trial, the factfinder is free to believe all, part, or
      none of the evidence, and the Superior Court will not disturb the
      trial court’s credibility determinations. Assessments of credibility
      and conflicts in evidence are for the trial court to resolve; this
      Court is not permitted to reexamine the weight and credibility
      determinations or substitute our judgments for those of the
      factfinder.    The test is not whether this Court would have
      reached the same result on the evidence presented, but rather,
      after due consideration of the evidence the trial court found
      credible, whether the trial court could have reasonably reached
      its conclusion.

Gutteridge v. J3 Energy Grp., Inc., 165 A.3d 908, 916 (Pa. Super. 2017)

(en banc) (internal citations and quotation marks omitted). The trial court

“found Martin Meade Kobsik’s testimony regarding which tractor the

attachments at issue were purchased for to be credible.” Trial Ct. Op. at 6.

The evidence supports the court’s finding.          Cresswell’s issues regarding

credibility therefore merit no relief.
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J-A24027-17


      Cresswell’s final challenge is:

      The trial [c]ourt committed reversible error in not declaring that
      the settlement reached between the Appellant and Appellees,
      Martin Meade Kobsik and Martin Phillip Kobsik, was void based
      upon an apparent mutual mistake as to the terms and conditions
      of the settlement agreement entered on the record and
      memorialized in the [trial c]ourt’s Order dated January 17, 2017
      as the inclusion of the attachments within the Appellees’
      possession constituted an essential term of the settlement
      agreement.

Cresswell’s Brief at 35.      The trial court found this issue to be waived

“because it was never raised in the petition for contempt.” Trial Ct. Op. at

7. We agree. “Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.” Pa.R.A.P. 302(a).

      Cresswell argues that this issue was preserved because he included it

in his statement of errors under Pa.R.A.P. 1925(b)(4). Appellant’s Brief at

35.   However, inclusion of an issue in a Rule 1925(b) Statement cannot

avoid a holding of waiver if the issue was not raised in the trial court prior to

appeal. Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008),

aff’d, 17 A.3d 332 (Pa. 2011); Commonwealth v. Melendez-Rodriguez,

856 A.2d 1278, 1287 (Pa. Super. 2004) (en banc). Because Cresswell did

not raise this last issue for the trial court’s consideration prior to his appeal,

the issue is not preserved.

      Order affirmed.



Judgment Entered.


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Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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