J-A02034-23

2023 PA Super 29

MIA PRENSKY

v.

TALEB M. TALAAT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 636 WDA 2022

Appeal from the Order Entered May 3, 2022

In the Court of Common Pleas of Butler County

Civil Division at No. 21-10286

BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*

OPINION BY MURRAY, J.: FILED: FEBRUARY 27, 2023

Taleb M. Talaat (Appellant) appeals from the order addressing his

dispute with his neighbor, Appellee Mia Prensky (Ms. Prensky). After careful 

consideration, we quash.

BACKGROUND

The parties reside on adjoining land in Butler County. On April 23, 2021,

Ms. Prensky initiated the underlying action by filing a complaint and motion 

for preliminary injunction. Ms. Prensky raised claims of “private nuisance and 

trespass and s[ought] ejectment and an injunction against [Appellant’s] 

continual interference with [Ms. Prensky’s] use and enjoyment of her 

property.” Motion for Preliminary Injunction, 4/23/21, at 2.

The parties’ respective properties are in a “Rural Residential Zone,”

which “permits agricultural activities by right and agricultural activities are 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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defined by the zoning ordinance to permit the raising of poultry and livestock.” 

Id. Ms. Prensky “frequently adopts farm animals and poultry which were 

rescued from neglectful or abusive homes and provides them with a 

comfortable place to live at [her p]roperty.” Id. The animals are contained 

“by a fence enclosure surrounding the barn and barnyard.” Id. at 3. In 

addition, Ms. Prensky “has established a working, non-profit poultry farm.” 

Id.

Ms. Prensky averred that Appellant “repeatedly expressed disdain” for 

Ms. Prensky’s animals, permitted his dog to enter Ms. Prensky’s property, and 

installed a “bird repeller” to “emit both sonic and ultrasonic sounds and strobe 

lights to startle birds and repel them from the area.” Id. at 3-4. Ms. Prensky

averred that Appellant placed the device at the edge of her property and aimed 

it “directly into her fenced in pasture.” Id. at 4. As a result, the animals 

began displaying “signs of increased agitation and aggressive behavior.” Id. 

A pig refused to leave the barn when the device was on. Id. at 5. Ms. Prensky 

also experienced distress, including an inability to sleep at night when the 

device was “at its maximum volume with the strobe light activated.” Id. Prior 

to filing suit, Ms. Prensky consulted with her veterinarian and took measures

to counteract the effect of the device without success. Id. Ms. Prensky

averred that she and her animals suffered harm and lost the use and 

enjoyment of her property. Id. at 6. She requested the trial court restore 

the status quo and enter an order enjoining Appellant from interfering with 

her possession, use and quiet enjoyment of her property. Id. at 7.
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The trial court conducted a “partial hearing” on May 11, 2021, and 

thereafter ordered that Appellant was “permanently enjoined from using an 

electric bird repelling device on his property ... if such device is either A) placed 

within 30 feet of the property line [Appellant] shares with [Ms. Prensky] or B) 

facing in a westward direction.” Order, 5/19/21.

Two days later, on May 21, 2021, Appellant filed a new matter and 

counterclaims. Ms. Prensky filed a reply. The trial court explained:

[Appellant] averred, inter alia, that [Ms. Prensky’s] birds trespass 

on his property, and runoff is entering onto his property from [Ms. 

Prensky’s] property, including therein animal urine and 

excrement.

On or about September 14, 2021, [Appellant] filed a Petition

for Preliminary Injunction, seeking a preliminary injunction 

against [Ms. Prensky], “in order to require Prensky to abate the 

constant intrusion and trespass of noise, smells, feces, and 

animals upon [Appellant’s] property.” (Petition for Preliminary 

Injunction, introductory paragraph). On December 28, 2021, 

at the time set for the hearing on the preliminary 

injunction, and prior to any testimony, the parties entered 

into the basic terms of an agreement, and entered an 

outline of these terms into the record. (TRO, December 28, 

2021 (docketed January 27, 2022)). In pertinent part, [Ms. 

Prensky] stipulated that her poultry had trespassed on 

[Appellant’s] property, that she has installed a poultry fence along 

the boundary of the parties’ property to prevent further 

trespasses, and that she will maintain said fencing. [Ms. Prensky] 

agreed to continuously video monitor the property line, and upon 

learning of any of her birds trespassing onto [Appellant’s]

property, to immediately notify her counsel, who will, in turn, 

notify opposing counsel. [Ms. Prensky] agreed to save and review 

the video to determine how the birds escaped, and to provide 

same for [Appellant’s] or his counsel’s review; [Ms. Prensky]

would then take action to prevent further, similar escapes. [She]

also stipulated that runoff from her property is entering onto 

[Appellant’s] property, and that the runoff contains manure. [Ms. 
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Prensky’s] counsel confirmed that [Ms. Prensky] hired a certified

manure management consultant, who developed a manure 

management plan for [Ms. Prensky] to implement in order to 

address the runoff issue. [Ms. Prensky] also agreed to develop a

storm water management plan with the help of the manure 

management consultant, an agricultural construction consultant, 

and the Butler County Conservation District so as to divert the 

runoff away from [Appellant’s] property. [Ms. Prensky’s] counsel 

indicated that some portions of these plans could be implemented 

in the winter of 2021 to 2022; however, some portions could not 

be implemented until the spring of 2022. [Ms. Prensky] agreed 

to record and periodically report to the [trial c]ourt each step 

undertaken to further the above efforts.

Following this discussion, the [c]ourt directed 

counsel for the parties to submit an agreed-upon Order of 

Court reflecting these terms. The parties eventually 

reached an impasse during the drafting of the Order of 

Court. One of the main points of contention concerned [Ms. 

Prensky’s] retrieval of her birds, should one or more escape the 

poultry fencing and trespass onto [Appellant’s] property. 

[Appellant] refused to permit [Ms. Prensky] to retrieve any 

trespassing birds; [Ms. Prensky], on the other hand, wanted to 

ensure the safe return of her birds. Therefore, during an offthe-record telephonic Status Conference, counsel for the 

parties suggested that each party submit to the [c]ourt a 

proposed Order of Court, and, after presenting their 

respective proposed Orders, the [c]ourt would determine 

which Order to utilize as the consented-to Order of Court. 

The [c]ourt agreed, and after submission of the proposed 

Orders, signed the May 3, 2022, Order of Court proposed 

by [Ms. Prensky], which provided that, upon any trespass of her

poultry, “Ms. Prensky will immediately retrieve the animal from 

[Appellant]’s Property.” (May 3, 2022, Order of Court, [at] 8, 9). 

[Appellant], being dissatisfied [with the court’s adoption of Ms. 

Prensky’s proposed order], filed a Notice of Appeal on or about

May 26, 2022.

Trial Court Opinion, 7/20/22, at 2-3 (bold and underline emphasis added). 

The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise 

statement and Appellant complied. The trial court also canceled the June 22, 
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2022, status conference scheduled in the May 3, 2022, order. Order, 6/3/22, 

at 4.

1

On July 13, 2022, this Court issued a rule to show cause directing 

Appellant to address “why the appeal should not be quashed or dismissed.” 

Order, 7/13/22. We stated it “was unclear whether” the May 3, 2022, order 

was “final or otherwise appealable ... because it was apparently entered by 

agreement of the parties.” Id. (citing McCutcheon v. Philadelphia Elec. 

Co., 788 A.2d 345, 349 (Pa. 2002) (providing appeal properly lies only from 

final order unless otherwise permitted by rule or statute)); Pa.R.A.P. 

341(b)(1) (defining final order as disposing of all claims and parties); 

Pa.R.A.P. 311(a)(4) (permitting appeal as of right and without reference to 

Pa.R.A.P. 341(c) from an order “that grants or denies, modifies or refuses to 

modify, continues or refuses to continue, or dissolves or refuses to dissolve 

an injunction . . .”); Miller v. Miller, 744 A.2d 778, 783 (Pa. Super. 1999) 

(where appellant acquiesced to orders, he cannot seek remediation of those 

orders), and Karkaria v. Karkaria, 592 A.2d 64, 71 (Pa. Super. 1991) (party 

who acquiesced to order or judgment may not later be heard to challenge it).

On July 22, 2022, Appellant filed a response arguing this appeal is 

proper pursuant to Pa.R.A.P. 311(a)(4) (permitting appeal as of right from an 

order granting or denying an injunction). Appellant also claimed he did not 

____________________________________________

1 Appellant filed a motion to stay the May 3, 2022, order pending appeal. The 

trial court denied the motion “upon consideration of” Ms. Prensky’s response 

and argument held on June 21, 2022. Order, 6/21/22.
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agree to several provisions of the May 3, 2022, order. This Court discharged 

the rule but advised “the issue may be revisited ... and the parties should be 

prepared to address, in their briefs or at the time of oral argument, any 

concerns the panel may have concerning this [appealability] issue.” Order, 

8/12/22.

Appellant filed his brief on September 16, 2022. He presents three 

questions for review:

1. Did the trial court err or abuse its discretion in entering the 

Court Order “by agreement of the parties to this action, in 

conformance with the agreements reached in Court on December 

28, 2021,” when: (1) the filings and oral argument in court on 

May 3, 2022, made clear that [Appellant] opposed and objected 

to the proposed order of court in the motion of appellee [Ms. 

Prensky]; (2) [Appellant] did not agree on December 28, 2021, or 

any time before or since that [Ms.] Prensky could enter upon 

[Appellant’s] property to retrieve animals; and (3) [Appellant] did 

not agree on December 28, 2021, or any time before or since that 

[Ms.] Prensky could cause urine and excrement contaminated 

water and/or water runoff to flow onto [Appellant’s] property?

2. Did the trial court err or abuse its discretion by entering the 

Court Order, which provided [Ms.] Prensky the right to enter onto 

[Appellant’s] property to retrieve animals as set forth in 

paragraphs 8 and 9 of the Court Order: (1) when that deprives 

[Appellant] of the fundamental property right to exclude others 

from his private property; (2) when that relief was not sought by 

any party in this matter; (3) when that relief was not agreed upon 

by the parties to this action; (4) when that relief functionally 

grants [Ms.] Prensky a license to enter upon [Appellant’s]

property, when such a license was not relief sought by any party 

in this matter and/or agreed upon by the parties to this action; 

and (5) when that relief functionally enjoins [Appellant] from 

enforcing his property rights, when such an injunction was not 

relief sought by any party in this matter and/or agreed upon by 

the parties to this action?
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3. Did the trial court err or abuse its discretion by entering the 

Court Order and authorizing [Ms.] Prensky to concentrate, direct, 

and discharge urine and excrement contaminated water onto 

[Appellant’s] property, as set forth in paragraph 15 of the Court 

Order: (1) when that discharge is contrary to Pennsylvania law on 

surface waters and constitutes tortious and/or actionable 

behavior; (2) when that relief was not sought by any party in this 

matter; and (3) when that relief was not agreed upon by the 

parties to this action?

Appellant’s Brief at 8-9.

APPEALABILITY

We are compelled to consider the appealability of the May 3, 2022,

order. “The question of the appealability of an order goes to the jurisdiction 

of the Court ... review[ing] the order.” Beltran v. Piersody, 748 A.2d 715, 

717 (Pa. Super. 2000). “Jurisdiction is purely a question of law; the appellate 

standard of review is de novo, and the scope of review is

plenary.” Commonwealth v. Merced, 265 A.3d 786, 789 (Pa. Super. 2021).

In general, appellate courts only have jurisdiction over appeals from a

final order. Schmitt v. State Farm Mut. Auto. Ins. Co., 245 A.3d 678, 681 

(Pa. Super. 2021). “A final order is one that disposes of all the parties and all 

the claims; or is entered as a final order pursuant to the trial court’s 

determination under Rule 341(c). Pa.R.A.P. 341(b)(1), (3).” Id. However, 

an appeal may be taken from “an order that is made final or appealable by 

statute or general rule, even though the order does not dispose of all claims 

and of all parties.” Pa.R.A.P. 311(a)(8). The Pennsylvania Supreme Court 

has stated,
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courts avoid piecemeal review not only out of concern for judicial 

economy, but out of concern for judicial accuracy—because, as a 

general rule, an appellate court is more likely to decide a question 

correctly after judgment, where it may consider the claim in the 

context of a complete adjudication and a fully developed record.

Rae v. Pennsylvania Funeral Directors Ass’n, 977 A.2d 1121, 1130 (Pa. 

2009) (italics in original, citations omitted).

Instantly, the trial court “submits that [Appellant’s] appeal of the May 

3, 2022, Order of Court is improper and not subject to review.” Trial Court 

Opinion, 7/20/22, at 6. The trial court “believes [Appellant’s] appeal is an 

improper appeal from a consent Order of Court.” Id. at 4. The trial court 

emphasizes that the parties entered into an agreement “in lieu of a hearing

on [Appellant’s] request for a preliminary injunction.” Id.

Appellant does not address appealability in his brief. In his response to 

this Court’s rule to show cause, Appellant argued the May 3, 2022, order “was 

appealable as of right under Pa.R.A.P. 311(a)(4) because it entered an 

injunction.” Response, 7/22/22, at 1. Appellant asserted “the genesis of the 

Order was [Appellant’s] Petition for Preliminary Injunction. Moreover, the 

Order has the effect of an injunction.” Id. Appellant further claimed he “did 

not agree to multiple terms in the Order, which means that the trial court 

erred in entering it as an order ‘by agreement of the parties.’” Id. at 3.

Like the trial court, Ms. Prensky contends the order “is a consent order 

which is not appealable and not properly before this Court.” Appellee’s Brief

at 14. Ms. Prensky relies on case law which defines a consent order as “an 
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agreement by the parties, sanctioned by the court, rather than a judgment.” 

Id. at 11 (citing Laird v. Clearfield & Mahoning Ry. Co., 916 A.2d 1091

(Pa. 2007), and Velocity Magnetics, Inc. v. Marzano, 421 WDA 2022 (Pa. 

Super. Oct. 7, 2022) (unpublished memorandum2)). An appeal from a 

consent order is permitted only if (1) the consent order explicitly permits it,

or (2) the record reveals the parties anticipated appeal. See Laird, supra

(permitting appeal after entry of stipulated order where transcript revealed 

appellants’ desire to preserve appeal). Ms. Prensky stresses the May 3, 2022,

order is not appealable because it does not contain any provision anticipating 

an appeal. Appellee’s Brief at 12.

The content of the May 3, 2022, order informs our disposition. The 

order states:

AND NOW, this 3rd day of May, 2002, the following order is 

being entered in the above captioned matter, by agreement of 

the parties to this action, in conformance with the agreements 

reached in [c]ourt on December 28, 2021, before the 

undersigned, for which a transcript entitled “Terms of 

Agreement” exists memorializing these agreements. A 

copy of the Terms of Agreement is attached hereto as 

Exhibit A.

Trespass of Animals

1. It is stipulated to by Ms. Prensky that her animals 

have trespassed onto [Appellant’s] property with the 

last known trespass of animals having occurred on 

October 18, 2021.

____________________________________________

2 Non-precedential Superior Court decisions may be cited as persuasive 

authority pursuant to Pa.R.A.P. 126(b)(2).
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2. It is stipulated to by Ms. Prensky that as a result of 

her animals trespassing onto [Appellant’s] property, 

she has installed a 4-foot high netted poultry fencing 

above the existing wooden fencing along the property 

line between her property and [Appellant’s] property, 

to prevent the trespass of animals from Ms. Prensky’s 

property onto [Appellant’s] property.

3. It is hereby ORDERED that Ms. Prensky will extend the 

4-foot high netted poultry fencing, as it existed on 

December 28, 2021, to extend to the front of her 

property so that the 4-foot high netted poultry fencing 

exists over the entire shared property line between 

her property and [Appellant’s] property.

4. It is hereby ORDERED that so long as Ms. Prensky 

maintains poultry, or any kind of animals that can fly, 

Ms. Prensky will maintain at least a 4-foot netted 

poultry fencing about the existing wooden fencing 

along the entire shared property line between her 

property and [Appellant’s] property.

5. It is stipulated to by Ms. Prensky that Ms. Prensky has 

installed and is currently using sixteen (16) video 

surveillance cameras that continuously record activity 

occurring around the shared property line between 

her and [Appellant’s] properties.

6. It is hereby ORDERED that, for as long as this 

litigation is ongoing or until further order of this 

[c]ourt, whichever occurs first, Ms. Prensky will 

maintain the sixteen (16) video surveillance cameras.

7. It is hereby ORDERED that, for as long as this 

litigation is ongoing or until further order of this 

[c]ourt, whichever occurs first, Ms. Prensky will focus 

a camera on her rear property line that would be able 

to detect any of her animals that could escape her 

property and trespass onto [Appellant’s] property.

8. It is hereby ORDERED that in the event [Appellant] 

witnesses and/or becomes aware of a perceived 

trespass of animal(s) from Ms. Prensky’s property, 

[Appellant] will notify Ms. Prensky, within a 
J-A02034-23

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reasonable period of time, and that, upon this 

notification, Ms. Prensky will immediately retrieve the 

animal from [Appellant’s] property.

9. It is hereby ORDERED that in the event that Ms. 

Prensky witnesses and/or becomes aware of a 

perceived trespass of animal(s) from Ms. Prensky’s 

property onto [Appellant’s] property, Ms. Prensky will 

notify [Appellant], within a reasonable time, and that, 

upon this notification, Ms. Prensky will immediately 

retrieve the animal from [Appellant’s] property.

10. It is hereby ORDERED that if Ms. Prensky witnesses 

and/or becomes aware of a perceived trespass, or if 

[Appellant] witnesses and/or becomes aware of a 

perceived trespass and notifies Ms. Prensky of the 

same, provided the notification is timely made, Ms. 

Prensky will review the video surveillance from her 

cameras to determine if animal(s) escaped from her 

property onto [Appellant’s] property and if an 

animal(s) did escape from Ms. Prensky’s property, she 

will take immediate measures to prevent any such 

escape from occurring in the future.

11. It is hereby ORDERED that in the event that Ms. 

Prensky’s video surveillance cameras capture video of 

her animals escaping from her property onto 

[Appellant’s] property, Ms. Prensky shall preserve this 

video surveillance footage.

12. It is hereby ORDERED that Ms. Prensky shall take all 

reasonable efforts necessary to prevent any further 

trespass of her animals onto [Appellant’s] property.

Runoff of Water and Animal Excrement

13. It is stipulated to by Ms. Prensky that water runoff 

originating from her property has flowed onto 

[Appellant’s] property.

14. It is stipulated to by Ms. Prensky that unknown 

quantities of animal excrement [are] contained in the 
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water runoff that is originating from her property and 

flowing onto [Appellant’s] property.

15. It is hereby ORDERED that Ms. Prensky shall 

immediately develop and implement a Storm Water 

Management Plan designed to divert water runoff 

from Ms. Prensky’s property onto [Appellant’s] 

property.

3

16. It is hereby ORDERED that Ms. Prensky shall 

immediately take reasonable measures to implement 

the Manure Management Plan that was developed 

with the assistance of Donna Zang.

____________________________________________

3 The trial court points out the “very obvious typographical error” in this 

paragraph. See Trial Court Opinion, 7/20/22, at 8 (stating “All parties and 

the [trial c]ourt are keenly aware of the steps [Ms. Prensky] has taken and is 

taking to prevent any further runoff from escaping her property and entering 

[Appellant]’s property.”). The trial court explained:

[Ms. Prensky] hired both a manure management consultant and an 

agricultural engineer, and is in contact with the Butler County 

Conservation District in order to develop and implement a plan to 

prevent this runoff. [Her] efforts in this regard have been discussed 

repeatedly and thoroughly between the parties and the [trial c]ourt, 

and [Appellant]’s and his counsel’s use of this typographical error to 

suggest this [c]ourt is presently Ordering [Ms. Prensky] to divert 

runoff and manure onto [Appellant]’s property is specious, 

disingenuous, and is being proffered by defense counsel with the 

knowledge that no good faith basis exists for such an assertion. 

Although [Appellant] did not request that the [trial c]ourt modify or 

amend the ... Order of Court to correct this error, the [trial c]ourt 

will, of course, take any steps necessary to rectify said typographical 

error.

Id. at 8-9. At oral argument, Ms. Prensky’s counsel expressed her agreement 

with the trial court; she previously stated that athe trial court “has committed 

to rectifying the error.” See Appellee’s Brief at 9. This Court is likewise in 

agreement with the trial court’s correction of the typographical error following 

our disposition and transmittal of the certified record to the trial court.
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17. It is understood by [Appellant], from representations 

made by Ms. Prensky, that certain elements of the 

Storm Water Management Plan to be developed 

and/or the Manure Management Plan may not be able 

to be implemented until the Spring of 2022.

18. It is hereby ORDERED that Ms. Prensky shall 

document each and every effort, action and/or step 

she is taking to conform to her obligations and 

agreements set forth in this Order under the heading 

“Runoff of Water and Animal Excrement” until such 

time that the Storm Water Management Plan and the 

Manure Management Plan are fully implemented.

19. [Appellant] and Ms. Prensky reserve their rights to 

appear before this Court to seek enforcement and/or 

medication [sic] of this Order, and/or any additional 

relief.

20. This [c]ourt will retain jurisdiction over this 

matter during the pendency of this litigation or 

until such time as a final order is entered. 

Counsel for the parties to the within matter shall 

appear before this [c]ourt on the 22nd of June, 2022, 

at 1:00 PM for a Status Conference in this matter. 

Within ten (10) days prior to this status conference, 

Ms. Prensky shall file a status report with this [c]ourt, 

setting forth all actions she has undertaken to comply 

with this ORDER.

BY THE COURT

Order, 5/3/22, at 1-4 (emphasis and footnote added).

LEGAL ANALYSIS

The May 3, 2022, order contains language which indicates it was not 

intended to be final. In addition to scheduling a status conference, the order 

references “ongoing litigation,” “further order of court,” and provides that the 
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trial court “will retain jurisdiction over this matter during the pendency of this 

litigation or until such time as a final order is entered.” Order, 5/3/22, at 2, 

4. As stated above, Appellant claims his appeal is proper pursuant to Pa.R.A.P. 

311(a)(4) (appeal may be taken as of right from an order “that grants or 

denies, modifies or refuses to modify, continues or refuses to continue, or 

dissolves or refuses to dissolve an injunction ...”).

Appellant filed a petition for a preliminary injunction on September 14, 

2021. While a party may appeal from an order involving an injunction under

Pa.R.A.P. 311(a)(4), the record belies Appellant’s claim that the May 3, 2022,

order “entered an injunction.” Response, 7/22/22, at 1. To the contrary, the 

record supports the trial court’s statement that the parties entered an 

agreement “in lieu of a hearing on [Appellant’s] request for a preliminary 

injunction.” Trial Court Opinion, 7/20/22, at 4.

We have explained:

the law of this Commonwealth requires that a petitioner seeking 

a preliminary injunction must establish every one of the following 

prerequisites:

First, a party seeking a preliminary injunction must show that an 

injunction is necessary to prevent immediate and irreparable harm 

that cannot be adequately compensated by damages. Second, 

the party must show that greater injury would result from refusing 

an injunction than from granting it, and, concomitantly, that 

issuance of an injunction will not substantially harm other 

interested parties in the proceedings. Third, the party must show 

that a preliminary injunction will properly restore the parties to 

their status as it existed immediately prior to the alleged wrongful 

conduct. Fourth, the party seeking an injunction must show that 

the activity it seeks to restrain is actionable, that its right to relief 

is clear, and that the wrong is manifest, or, in other words, must 
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show that it is likely to prevail on the merits. Fifth, the party must 

show that the injunction it seeks is reasonably suited to abate the 

offending activity. Sixth, and finally, the party seeking an 

injunction must show that a preliminary injunction will not 

adversely affect the public interest.

Overland Enter., Inc. v. Gladstone Partners, LP, 950 A.2d 1015, 1020 

(Pa. Super. 2008) (citation omitted).

In this case, there was no hearing or trial. See Trial Court Opinion, 

7/20/22, at 2 (“at the time set for the [December 28, 2021] hearing on the 

preliminary injunction, and prior to any testimony, the parties entered into 

the basic terms of an agreement, and entered an outline of these terms on 

the record.” (citation omitted)). Appellant never presented evidence 

regarding the six prerequisites for a preliminary objection. See Overland

Enter., Inc., supra. Thus, Rule 311(a)(4) is not applicable because the 

record does not support Appellant’s claim that the May 3, 2022, order entered 

an injunction.

Appellant also argues the trial court “erred or abused its discretion by 

entering a ‘consent’ order that was not in fact consented to.” Appellant’s Brief 

at 20; see also Appellant’s Reply Brief at 1-12. Appellant claims his appeal 

is proper because he was not in agreement with the trial court entering the 

May 3, 2022, order. See Response, 7/22/22, at 3. Both the trial court and 

Ms. Prensky argue the order is not appealable because it was entered upon 

consent of the parties. See Trial Court Opinion, 7/20/22, at 3-4; Appellee’s 

Brief at 10-14.
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It is well-settled that “a party who consents to, or acquiesces in, a 

judgment or order cannot appeal therefrom.” Brown v. Commonwealth,

Dep't of Health, 434 A.2d 1179, 1181 (Pa. 1981) (citation omitted); see

also Karkaria, 592 A.2d at 71 (a party “who has acquiesced in an order or 

judgment will not later be heard to challenge it” (citation omitted)). 

Appellant concedes:

The parties appeared before the trial court on December 28, 2021, 

for the scheduled hearing on [Appellant’s] petition for a 

preliminary injunction. Prior to the commencement of the 

scheduled hearing—and in lieu of the hearing—the parties reached 

an agreement as to certain specific stipulations for resolving their 

dispute, and the parties used the scheduled hearing as an 

opportunity to recite and memorialize the terms of their 

agreement on the record before the court.

Appellant’s Brief at 14.

Appellant agrees he and Ms. Prensky “testified under oath that they 

would sign a consent order incorporating those terms.” Id. He states that

when “the parties exchanged drafts ... they reached an impasse as to the 

contents of the stipulated order.” Id. at 15. Appellant confirms that because 

they were “unable to agree, the parties each submitted motions proposing 

alternative orders to the trial court, that would capture the stipulations that 

were placed on the record on December 28, 2021.” Id. Notably, Appellant 

does not address the trial court’s statement that

during an off-the-record telephonic Status Conference, counsel 

for the parties suggested that each party submit to the 

[c]ourt a proposed Order of Court, and, after presenting 

their respective proposed Orders, the [c]ourt would 
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determine which Order to utilize as the consented-to Order 

of Court. The [c]ourt agreed ....

 

Trial Court Opinion, 7/20/22, at 3 (bold and underline emphasis added).

Ms. Prensky also states, “[Appellant’s] counsel proposed that the 

parties file cross-motions presenting their proposed orders to the [t]rial 

[c]ourt for decision.” See Appellee’s Brief at 6 (citing R. 298a (Appellant’s 

Motion to Approve Proposed Order Following Proceedings on December 28, 

2021, at 2 (Appellant averring, “Upon recognizing that a few key terms could 

not be agreed upon, counsel participated in a status conference with the 

[c]ourt on March 16, 2022, in which counsel presented issues of concern.”;

“Upon recognizing that the parties were at an irreconcilable impasse, counsel 

agreed to prepare opposing motions seeking approval of the orders sought to 

be entered by either side”)) and Appellant’s Brief, Exhibit B-4 (Trial Court 

Opinion at 4)).

Critically, Appellant does not refute the trial court’s statement that at 

the March 16, 2022 status conference, counsel suggested the parties submit 

proposed orders for the court’s disposition. Likewise, Appellant does not deny

Ms. Prensky’s statement that “[Appellant’s] counsel proposed that the parties 

file cross-motions presenting their proposed orders to the [t]rial [c]ourt for 

decision.” Appellee’s Brief at 6. Although Appellant acknowledged the March 

16, 2022, status conference in his “Motion to Approve Proposed Order 

Following Proceedings on December 28, 2021,” before the trial court, he does 

not mention the March 16, 2022, status conference in his brief. See
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Appellant’s Brief (Statement of the Case) at 14-15 (recounting “the parties’ 

appearance on December 28, 2021, for the scheduled hearing,” where “in lieu 

of the hearing ... the parties reached an agreement ...” followed by Appellant’s 

discussion of the parties submitting proposed “alternative orders ... presented 

to the trial court on May 3, 2022.”). Appellant claims Ms. Prensky “does not 

cite anything in the record showing [Appellant] ever agreed that the trial court 

could insert additional terms into the parties’ settlement agreement or 

otherwise vary the parties’ agreement.” Appellant’s Reply Brief at 4. 

However, Appellant does not refute or address the statements of the trial court 

and Ms. Prensky that counsel suggested the trial court resolve the parties’ 

dispute concerning Ms. Prensky’s retrieval of birds from Appellant’s property.

According to the trial court, the March 16, 2022, status conference 

occurred “during an off-the-record[,] telephonic” exchange. Trial Court 

Opinion, 7/20/22, at 3. Prior to the status conference, Appellant’s counsel 

stated — on the record — that the parties had reached an agreement, and “if 

there is any ambiguity, certainly we have the record that creates sort 

of the context to interpret whatever we go into.” N.T., 12/28/21, at 2-

3 (emphasis added). Counsel made this comment during the following 

discussion:

THE COURT: It is my understanding that the parties have 

reached, through their Counsel, have reached an agreement in 

this matter ... the general terms of which will be taken by Counsel 

back and formed, placed into an Order of Court that both Counsel 

will agree to and then I will sign that Order.
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So this is, I think what we are doing here at this point in 

time is just a general outlining of what the order will contain. Is 

that correct Counsel?

[MS. PRENSKY’S COUNSEL]: Yes, Your Honor, so long as it’s on 

the record that it’s going to be consistent with what we discussed 

here today on the transcript.

THE COURT: What subsequently follows.

[APPELLANT’S COUNSEL]: Yes. That was also in our thought, 

if there is any ambiguity, certainly we have the record that 

creates sort of the context to interpret whatever we go 

into.

N.T., 12/28/21, at 2-3 (emphasis added). The parties then affirmed the terms 

their agreement under oath on the record. Id. at 3-15. The proceedings

concluded with the trial court stating, “Thank you very much. Get me the 

Agreement, I will sign it, have the terms of the Agreement made an Order of 

Court and go from there. Thank you.” Id. at 16.

Thereafter, the parties could not resolve the details concerning Ms. 

Prensky’s retrieval of her birds in the event they escaped onto Appellant’s 

property.

4

 The impasse led to the parties’ preparation and submission of

proposed orders to the trial court. Again, the trial court recounted the parties 

agreeing at an off-the-record status conference that the trial court would 

“determine which Order to utilize as the consented-to Order of Court.” Trial 

Court Opinion, 7/20/22, at 3. The trial court’s statement is supported by Ms. 

____________________________________________

4 Appellant refused to permit Ms. Prensky to retrieve her birds from his 

property, while Ms. Prensky “wanted to ensure the safe return of her birds.” 

Trial Court Opinion, 7/20/22, at 3. 
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Prensky’s April 22, 2022, motion to approve proposed order, in which, inter 

alia, she averred:

Upon recognizing that a few key terms could not be 

agreed upon, counsel participated in a status conference 

with the [trial c]ourt on March 16, 2022, in which counsel 

presented the issues of concern [and] the court provided 

direction.

Immediately following the conference, [Ms. Prensky’s 

counsel] made changes to the proposed order to reflect the 

[c]ourt’s direction and forwarded the same to [Appellant’s 

counsel] for approval by his client.

[Appellant’s counsel], after some time, informed [Ms. 

Prensky’s counsel] that his client simply would not agree to allow 

[Ms.] Prensky to retrieve trespassing animals who crossed over 

the fence but were still on the strip of property belonging to [Ms.] 

Prensky.

Motion to Approve Proposed Order Following Proceedings on December 28, 

2021, 4/22/22, at 2, ¶¶ 6-8 (emphasis added).

When the parties appeared before the trial court on May 3, 2022 to

advocate for their respective proposed orders, Appellant’s counsel stated:

When we appeared on the 28th of December, it was to bring 

finality to this. We believe that we did. We believe the 

terms of the agreement that were put on the record before 

Your Honor did. It spoke to the water runoff, it spoke to 

the excrement run off, and it spoke to the trespass. It was 

only after we left here, Your Honor, that there was this new 

concept of—

THE COURT: And we addressed that on the telephone, 

on the conference call.

[APPELLANT’S COUNSEL]: The concept of, not the notification, 

it’s the concept that a request through Your Honor, which we 

would oppose and object to any order that would say that Ms. 
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Prensky, if she’s either notified or if she sees an animal, that it 

gives her the right to come on the property. That goes beyond 

any sort of relief that was sought in this case.

THE COURT: How do you expect her to get this animal back 

if it goes on his property and he calls her and says, come and get 

your – your animal’s on my property. What are we supposed to 

do?

[APPELLANT’S COUNSEL]: We expect her animals not to come 

on our property.

THE COURT: Well in an ideal world, so do I. But we don’t live 

in an ideal world. We live in a realistic world.

[MS. PRENSKY’S COUNSEL]: And if I may address that point, 

Your Honor, my client adamantly does not want the animals on –

THE COURT: I understand that.

N.T., 5/3/22, at 4-5.

The trial court added that the parties should cooperate and use 

“common courtesy.” Id. at 6. Appellant’s counsel reiterated that although 

the parties appeared before the court on December 28, 2021, the parties “still 

don’t have an order ... Here we are now in May[.]” Id. The trial court replied 

that “the plans are supposed to go forward.” Id. The court advised it would

“sign an order to that effect,” id., and entered the May 3, 2022, order.

As noted, the trial court views Appellant’s appeal from the order as “an 

improper appeal from a consent Order of Court.” Trial Court Opinion, 7/20/22, 

at 4. The court reasoned:

[I]n lieu of a hearing on [Appellant’s] request for a preliminary 

injunction, the parties entered into an agreement. The parties

outlined the terms of the agreement on the record, with the intent 

to reduce the agreement to writing in a consent Order of Court.

The parties began negotiations, and agreed upon the majority of
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the terms, but ... reached an impasse with regard to [Ms. 

Prensky’s] retrieval of her birds should a trespass occur. Instead 

of requesting the [c]ourt to hold a hearing on this matter, 

the parties each agreed to submit a proposed Order of

Court to the undersigned, to present these proposed Orders 

to the [c]ourt, and to leave the decision to the [c]ourt as 

to which Order of Court would be adopted as the consent 

Order. Each of the proposed Orders of Court included the phrase, 

“. . . the following Order is being entered in the above captioned 

matter, by agreement of the parties to this action. . . .” Neither

of the parties objected to the inclusion of said language at any 

time during these proceedings. As such, the [c]ourt considers the 

May 3, 2022, Order of Court to be a consent Order of Court.

In Laird v. Clearfield & Mahoning Ry. Co., 916 A.2d 

1091, 1094 (Pa. 2007), the parties entered into a stipulated Order 

in lieu of trial, whereby the Defendant stipulated to having 

breached the parties’ contract, but preserved “the right to raise 

this issue again should, following appellate review, further trial be 

necessary.” (Id. at 1093). From this language in the Order, as 

well as the parties’ discussions with the [c]ourt, it was clear that 

all parties and the [c]ourt recognized that the Defendant intended 

to appeal certain pre-trial rulings, and that, if successful on 

appeal, the Defendant would be afforded the opportunity to 

relitigate the breach of contract claim. As expected, following the 

entry of the stipulated Order, the Defendant appealed a number 

of the [c]ourt’s pre-trial rulings that dismissed certain claims and 

defendants. The Superior Court sua sponte held that the 

stipulated agreement amounted to a consent decree, and, as 

consent decrees are not reviewable on appeal, dismissed the

Defendant’s appeal. The Pennsylvania Supreme Court granted 

review to determine whether the stipulated order constituted such 

a consent decree. In its final holding, the Court agreed with the 

dissent that consent decrees are not reviewable on appeal. 

However, the Court declined to make a determination as to 

whether the Order before it constituted such a consent decree, 

concluding the record did not provide sufficient factual information 

to make such an assumption. Instead, the Court ruled that 

“where, as here, (1) the trial court’s order is entered in lieu of trial 

pursuant to a stipulated agreement which contemplates 

appellate review, and (2) the issue being appealed is not 

disposed of in the stipulated order, appellate review is not 

precluded.” Id. at 1094.
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Presently, for the reasons stated above, the [c]ourt views 

the May 3, 2022, Order of Court as a consent Order of Court, being 

as such, any appellate review is precluded. However, even if the 

May 3, 2022, Order of Court is not a consent Order of Court, 

[Appellant] yet fails to satisfy the requirements of Laird. 

The May 3, 2022, Order of Court was entered in lieu of a hearing. 

Neither of the parties preserved the right to appeal the May 3, 

2022, Order of Court, nor was appellate review discussed at any 

time during these proceedings. Consequently, [Appellant] has 

failed to satisfy the first prong of the Laird rule. Additionally, the 

issue being appealed from is disposed of in the May 3, 2022, Order 

of Court, as it is the May 3, 2022, Order of Court itself from which 

the appeal is being taken. Thus, [Appellant] has failed to satisfy 

the second prong of the Laird rule. As such, the [c]ourt 

respectfully submits that [Appellant’s] appeal of the May 3, 2022, 

Order of Court is improper and not subject to review.

Trial Court Opinion, 7/20/22, at 4-6 (underlining in original, bold emphasis 

added, footnotes omitted).

Consistent with the trial court’s reasoning and our review of the record 

and prevailing law, we conclude the May 3, 2022, order is not appealable. 

Accordingly, we quash the appeal.

Appeal quashed. Jurisdiction relinquished.

5

____________________________________________

5 As discussed above, the trial court’s correction of the typographical error in 

¶15 of the order is proper following this Court’s disposition and transmittal of 

the certified record to the Butler County Court of Common Pleas.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/2023