J-S21003-19

2019 PA Super 200

DOUGLAS MATENKOSKI AND SHIU 

MATENKOSKI

IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellees

v.

JOSEPH GREER AND VICTORIA GREER

Appellants No. 2607 EDA 2018

Appeal from the Order Entered August 7, 2018

In the Court of Common Pleas of Chester County

Civil Division at No: 2016-00619

BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

OPINION BY STABILE, J.: FILED JUNE 25, 2019

In this nuisance action, Appellants, Joseph Greer and Victoria Greer, 

appeal from a decision1 granting a preliminary injunction against them and in 

favor of their neighbors, Appellees Douglas and Shiu Matenkoski, and 

declining Appellants’ counterclaim for injunctive relief. Pursuant to Pa.R.A.P. 

311(a)(4)(ii), we exercise jurisdiction over this appeal to the extent it 

concerns the grant of injunctive relief to Appellees, but we quash this appeal 

to the extent it concerns the denial of injunctive relief to Appellants. On the 

merits, we affirm the grant of the preliminary injunction to Appellees. 

The evidence demonstrates that Appellants violated local zoning 

ordinances by operating a noisy and malodorous automobile repair business 

____________________________________________

1 Although the trial court called its determination a “verdict,” the correct term 

in a civil bench trial is a “decision.” Pa.R.C.P. 1038(b), (c). We will refer to 

the trial court’s determination as a “decision.”
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on nights and weekends on their residential property. Through this conduct, 

Appellants intentionally interfered with Appellees’ quiet enjoyment of their 

residence. 

Since 1990, Appellees have lived in an R-2 Residential District in East 

Nottingham Township. In 2011, Appellants moved into the residence next 

door to Appellees. Appellants constructed a two-car garage one foot from

Appellees’ property line next to an existing two-car garage on Appellants’ land. 

Appellants started a business restoring and repairing automobiles on 

weeknights and weekends. The repair and restoration work was very noisy. 

Appellants also left vehicles idling in front of their garages, creating additional 

noise and noxious fumes. Appellees frequently complained to Appellants and

township officials about the noise and fumes. Appellees used handheld 

cameras to make audiovisual recordings of Appellants’ repair work. In 

response, Appellant Joseph Greer cursed at Appellees, made obscene 

gestures, and used a handheld camera to record Appellees’ activities.

In 2016, five years after Appellants began their repair business, 

Appellees filed a civil action against Appellants alleging nuisance, intentional 

infliction of emotional distress, and trespass. Appellants filed six 

counterclaims, including invasion of privacy (intrusion upon seclusion), private 

nuisance, intentional infliction of emotional distress, violation of the 

Pennsylvania Wiretapping and Electronic Surveillance Control Act (18 

Pa.C.S.A. §§ 5701-5728) (“Wiretap Act”), injunction and trespass.
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On August 7, 2018, following a three-day bench trial, the trial court 

granted a preliminary injunction2 prohibiting Appellants “from carrying on 

automobile repairs and restorations in this R-2 residential district both as a 

violation of the East Nottingham Township Zoning Ordinance and as a 

nuisance.” Decision, 8/7/18, at 1. The court further prohibited Appellants 

from [using] grinders, sanders, compressors, spray paint tools, 

solvents, or other tools or items associated with the repair of 

automobiles or other vehicles unless those vehicles are titled in 

their name and used as their personal vehicles. In such 

circumstances, [Appellants] may work on their personal titled 

vehicles between the hours of 8 a.m. and 6 p.m. 

Id. The court held in favor of Appellees in their actions for nuisance and

intentional infliction of emotional distress but declined to award damages. Id. 

at 2. Finally, the court ruled against Appellees on their claim of trespass and 

against Appellants on their counterclaims for injunctive relief and damages. 

Id. 

With regard to the preliminary injunction, the court stated:

The [c]ourt credits [Appellees’] testimony and evidence 

introduced while finding [Appellants’] testimony not to be credible 

. . . [Appellant] Joseph Greer, and to a lesser extent Victoria 

Greer, have used foul and demeaning language and conduct, 

obscene hand gestures and engaged in other conduct not only 

intended to create a nuisance but to inflict emotional distress on 

[Appellees], and in particular upon Shiu Matenkoski. [Appellant]

Joseph Greer clearly is engaging in the business of automobile 

repair and sales from his personal residence, having sold 

seventeen (17) vehicles over the last four (4) years, at least seven 

____________________________________________

2 Appellants state erroneously that the trial court entered a permanent 

injunction. The decision reflects that the court entered a preliminary 

injunction. 
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(7) of which were not titled to either [Appellant]. The work on 

these vehicles takes place on [Appellants’] R-2 residential district 

property, mainly outside of any structure, and cannot be 

considered a major or non-impact home occupation or permitted 

automobile sales/service use under the East Nottingham 

Ordinances. Repairs and work on these vehicles occur at 

unreasonable hours, often at times past 10 p.m. There are times 

when [Appellants] play loud music, especially during the 

weekends, while other individuals, not related to the Greer family, 

either work on vehicles located on [Appellants’] property or 

support the automobile repair business activity occurring thereon. 

[Appellant] Joseph Greer often idles his work vehicle for hours in 

the morning creating a malodorous condition in [Appellees’]

residence, for no valid reason. [Appellants’] use of solvents, 

paints or other chemicals associated with automobile restoration 

and repair further contribute to the malodorous conditions 

suffered by [Appellees] while on their property. The odors and 

noise from [Appellants’] property constitute a continuing nuisance 

to [Appellees], thus also entitling them to injunctive relief. 

[Appellees] have lived in their residence for twenty-nine (29) 

years. The record reflects that the conditions [Appellees] now 

complain about began with the purchase of [Appellants’] property 

in 2010 and have generally increased since that time.

Decision, 8/17/18, at 1 n.2. 

On September 5, 2018, without filing post-trial motions or reducing the 

decision to judgment, Appellants appealed to this Court. Both Appellants and 

the trial court complied with Pa.R.A.P. 1925(b). In its Rule 1925 opinion, the 

court elaborated on its decision to issue preliminary injunctive relief as follows:

[Appellants] complain that the injunction issued is overly broad as 

set forth in paragraphs A and B of their Concise Statement. The 

[c]ourt does not agree. [Appellants] are only prohibited from 

using tools associated with the repair of automobiles or other 

vehicles unless those vehicles are titled in their name or used as 

their personal vehicles. This restriction was placed upon 

[Appellants] because it is clear from the record that [Appellants], 

and in particular, Joseph Greer, was engaged in the business of 

repairing and selling automobiles and automobile parts, with 

[Appellants] confirming that he sold seventeen (17) vehicles over 
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the last four (4) years from his residence and at least seven (7) 

of them were not titled in [Appellants’] names. [Appellees] were 

afforded no enforcement protection from this obvious commercial 

activity in a residential area from East Nottingham Township after 

registering complaints. See Trial Ex. P4; 53 P.S. § 10617. 

[Appellees] did not receive any help from local police. Although 

the [c]ourt made no specific finding in its verdict, it is noted that 

a friend of [Appellant] Joseph Greer was at all times relevant 

herein, a Pennsylvania State Trooper who would assist 

[Appellants] in repairing automobiles and also used [Appellants’]

property to fix his own automobile.3In order to get relief from 

[Appellants’] egregious conduct, [Appellees] resorted to taking

videos of the [Appellants’] abuses, which included audio 

recordings of the excessive auto repair noises coming from the 

property, and their filing a civil lawsuit. [Appellants’] activities 

would occur very late into the evenings, often past 10 p.m. The 

reason for enjoining the work hours on personal vehicles between 

the hours of [6 p.m. to 8 a.m.] is because of the appearance and 

testimony of [Appellant], Joseph Greer, who appears to be the 

type of person who will not accept restriction on his conduct and 

believes in “his” exclusive rights as an American. When 

[Appellees] would attempt to discuss with Mr. Greer the excessive 

noise and odor issues, Mr. Greer would curse at them, extend his

middle finger to them, or defiantly state “this is America and I can 

do what I want with my property.” He would then put up a large 

American flag to attempt to visually block out the commercial 

activity occurring on his driveway that could be viewed by the

[Appellees]. It should be noted that [Appellee], Shiu Matenkoski, 

was born in Taiwan, speaks broken English, and it was she who 

primarily complained to [Appellants] regarding their activities.

[Appellees] have lived in their residence for 29 years. It is unclear 

to the trial court why Mrs. Matenkoski needed to be reminded 

what country she has been living in for over 30 years. [Appellees]

have only experienced the noise, fumes and auto repair business 

intrusions into their property since [Appellants] purchased their 

property in 2010. [Appellant] Joseph Greer appears xenophobic.

Along with engaging in his automobile repair and sales business, 

____________________________________________

3 Through this text, the trial court noted its concern that the police abdicated 

its duty to protect Appellees from Appellants’ lengthy pattern of misconduct. 

We share the trial court’s concern, and we find it troubling that East 

Nottingham Township provided no enforcement protection to Appellees for 

Appellants’ violation of its ordinances.
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he would idle his work truck excessively for hours starting at 5

a.m., set off car alarms at inconvenient hours, and shine laser 

beams into the [Appellees’] residence at night. In addition, 

[Appellants], along with their auto enthusiast male friends, would 

party and listen to music in [Appellants’] detached garage and 

then walk around the side of the garage, observable from 

[Appellees’] residence, and urinate on the ground. The hours of 

8 a.m. to 6 p.m. allows [Appellants] sufficient time on weekends 

to work on their personal automobiles, if necessary, especially 

since Mr. Greer works during the day during the week.

Trial Court Opinion, 12/28/18, at 1-3.

Appellants raise the following questions in their appellate brief:

I. Did the trial court err as a matter of law in granting an injunction 

against Appellants, on the grounds that:

A. The injunction is overly broad in encompassing 

legal activity not contemplated as nuisances or 

violations of local ordinances, vague for not narrowly 

defining enjoined activities, and unreasonably 

restrictive as to time;

B. Appellees violated Pennsylvania’s [Wiretap Act], 

thus having unclean hands and not warranting 

equitable relief;

C. The basis for the injunction was Appellants’ alleged 

violation of an East Nottingham Township Zoning 

Ordinance prohibiting the operation of business, yet 

as a matter of law Appellants were not involved in any 

business; and 

D. The injunction is overly broad in enjoining activities 

as nuisances where such activities could not legally 

constitute the basis for a finding of a private nuisance.

II. Did the trial court err as a matter of law in not finding for 

Appellant[s] on their claim that Appellees violated the Wiretapping 

and Electronic Surveillance Control Act, granting Appellant 

injunctive relief and denying Appellees equitable relief, where 

Appellees captured audio recordings of Appellant and his guests, 
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without his permission, while Appellant was in his attached and 

detached garages and otherwise in the curtilage of his home?

III. Did the trial court err as a matter of law in not granting 

injunctive relief for Appellant[s] to abate Appellees’ continued 

violations of the Wiretapping and Electronic Surveillance Control 

Act?

Appellants’ Brief at 6-8. Phrased more concisely, Appellants object to the 

preliminary injunction against them on three grounds: (1) their business is 

legal under local zoning ordinances; (2) the injunction is overbroad; and (3) 

Appellees have violated the Wiretap Act and have come into court with unclean 

hands. Finally, Appellants object to the denial of injunctive relief in their own 

counterclaim against Appellees under the Wiretap Act. In each argument, 

Appellants object to the award of injunctive relief to Appellees or the denial of 

preliminary injunctive relief to themselves. None of Appellants’ arguments 

concerns the trial court’s rulings on damages.

At the outset, we consider sua sponte whether we have jurisdiction over 

this appeal. Turner Const. v. Plumbers Local 690, 130 A.3d 47, 63 (Pa.

Super. 2015) (“[W]e can raise the issue of jurisdiction sua sponte”). The trial 

court’s decision is not appealable as a final order under Pa.R.A.P. 3414 because 

it has never been reduced to judgment. Crystal Lake Camps v. Alford, 923 

____________________________________________

4 Pa.R.A.P. 341 provides that a final order is an order that “disposes of all 

claims and of all parties” or is entered by the trial court as a final order “as to 

one or more but fewer than all of the claims and parties only upon an express 

determination that an immediate appeal would facilitate resolution of the 

entire case.” Pa.R.A.P. 341(b), (c). 
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A.2d 482, 488 (Pa. Super. 2007) (decision in non-jury trial did not become 

final for purposes of appeal until properly reduced to and entered as formal 

judgment under Pa.R.C.P. 227.4). 

This decision is, however, an appealable interlocutory order under 

Pa.R.A.P. 311, which provides in relevant part:

An appeal may be taken as of right and without reference to 

Pa.R.A.P. 341(c) from . . .

(4) An order that grants or denies, modifies or refuses 

to modify, continues or refuses to continue, or 

dissolves or refuses to dissolve an injunction unless 

the order was entered . . .

(ii) After a trial but before entry of the final order. 

Such order is immediately appealable, however, if the 

order enjoins conduct previously permitted or 

mandated or permits or mandates conduct not 

previously mandated or permitted, and is effective 

before entry of the final order.

Pa.R.A.P. 311(a)(4). While Rule 311(a)(4) provides that preliminary 

injunctions entered after trial but before a final order generally are not 

appealable, it has several important exceptions, one of which is relevant here: 

an order is immediately appealable when it “enjoins conduct previously 

permitted” and is “effective before entry of the final order.” Pa.R.A.P. 

311(a)(4)(ii). 

The present decision fits within this exception to the extent the trial 

court granted preliminary injunctive relief to Appellees. Prior to this decision, 

there was no order in this case enjoining Appellants’ conduct. Thus, the trial 

court enjoined conduct “previously permitted,” namely Appellants’ operation 
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of an automobile repair and restoration business on their residential property. 

Id. In addition, the decision was “effective before entry of the final order,” 

id., because it was effective immediately.

5 Accordingly, we exercise 

jurisdiction over this appeal to the extent it concerns the trial court’s grant of 

preliminary injunctive relief to Appellees. As a practical matter, this means 

we will review Appellants’ first three issues on the merits.

On the other hand, the denial of Appellants’ counterclaim for injunctive 

relief does not fit within Rule 311(a)(4)(ii), because (1) denial of relief took 

place “after . . . trial but before entry of the final order”; (2) the court did not 

enjoin conduct of Appellees that was previously permitted or mandated; and 

(3) the court did not permit or mandate conduct of Appellees that was not 

previously mandated or permitted. Id. Therefore, we quash this appeal to 

the extent it concerns the trial court’s denial of injunctive relief to Appellants, 

and we will not review their fourth and final argument objecting to the denial 

of their counterclaim for injunctive relief.

We review orders granting preliminary injunctions for abuse of 

discretion. Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, 

Inc., 828 A.2d 995, 1000 (Pa. 2003). “We do not inquire into the merits of 

the controversy, but only examine the record to determine if there were any 

____________________________________________

5 Appellants did not file post-trial motions, as such motions are not a 

prerequisite for a Rule 311 appeal. Nevyas v. Morgan, 921 A.2d 8, 13 (Pa. 

Super. 2007). 
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apparently reasonable grounds for the action of the court below.” Id. “Only 

if it is plain that no grounds exist to support the decree or that the rule of law 

relied upon was palpably erroneous or misapplied will we interfere with the 

decision of the [trial court].” Id. The trial court has “apparently reasonable” 

grounds to grant a preliminary injunction when the moving party meets six 

prerequisites: (1) an injunction is necessary to prevent immediate and 

irreparable harm that cannot be adequately compensated by damages; (2) 

greater injury would result from refusing an injunction than from granting it, 

and, concomitantly, issuance of an injunction will not substantially harm other 

interested parties in the proceedings; (3) a preliminary injunction will properly 

restore the parties to their status as it existed immediately prior to the alleged 

wrongful conduct; (4) the moving party is likely to prevail on the merits; (5) 

the injunction is reasonably suited to abate the offending activity; and (6) an 

injunction will not harm the public interest. Id. at 1001.

Appellants first argue that their business is legal under local zoning 

ordinances. The legal framework for the trial court’s ruling incorporates the 

Pennsylvania Municipalities Planning Code (“MPC”) and the East Nottingham 

Township Zoning Code (“Township Code”). The MPC provides that 

zoning ordinances shall permit no-impact home-based businesses 

in all residential zones of the municipality as a use permitted by 

right, except that such permission shall not supersede any deed 

restriction, covenant or agreement restricting the use of land nor 

any master deed, bylaw or other document applicable to a 

common interest ownership community. 
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53 P.S. § 10603(l). In accord with Section 10603(l), the Township Code 

defines “home occupation, no-impact” as a “use that is customarily accessory 

to, and carried on within, a dwelling unit by one or more residents of such 

dwelling unit in accordance with the standards of this Chapter.” East 

Nottingham Zoning Ordinance § 27-202. The same ordinance requires that 

such use “be clearly secondary to the principal residential use” and “meet the 

standards for a ‘no-impact home business’ contained in the [MPC].” Id. In 

turn, the MPC defines “no-impact home-based business” as

a business or commercial activity administered or conducted as 

an accessory use which is clearly secondary to the use as a 

residential dwelling and which involves no customer, client or 

patient traffic, whether vehicular or pedestrian, pickup, delivery 

or removal functions to or from the premises, in excess of those 

normally associated with residential use. The business or 

commercial activity must satisfy the following requirements:

(1) The business activity shall be compatible with the 

residential use of the property and surrounding residential 

uses.

(2) The business shall employ no employees other than family 

members residing in the dwelling.

(3) There shall be no display or sale of retail goods and no 

stockpiling or inventory of a substantial nature.

(4) There shall be no outside appearance of a business use, 

including, but not limited to, parking, signs or lights.

(5) The business activity may not use any equipment or 

process which creates noise, vibration, glare, fumes, odors

or electrical or electronic interference, including interference with 

radio or television reception, which is detectable in the 

neighborhood.
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(6) The business activity may not generate any solid waste or 

sewage discharge in volume or type which is not normally 

associated with residential use in the neighborhood.

(7) The business activity shall be conducted only within the 

dwelling and may not occupy more than 25% of the habitable 

floor area.

(8) The business may not involve any illegal activity.

53 P.S. § 10107(a) (emphasis added). 

The trial court found that Appellants’ automobile repair and restoration 

business was not a “no-impact home based business” because it was 

“obvious[ly] commercial” as well as noisy and malodorous. Decision, at 2; 

Trial Ct. Op., at 2. The record supports these findings. As the trial court 

detailed, Appellants sold seventeen vehicles in a four-year period, at least 

seven of which were not titled to either Appellant, from the business they 

operated on their residential property. The business was extremely noisy and 

generated noxious odors, making it wholly incompatible with the property’s 

residential status and surrounding residential uses. When Appellees 

complained to Appellants, Appellant Joseph Greer responded boorishly by 

cursing, blocking Appellants’ view with an American flag, and proclaiming that 

“this is America and I can do what I want with my property.” Greer is correct 

to the extent this certainly is America. What Greer fails to grasp is that in 

America, and in particular, for our present purposes here in Pennsylvania, his 

fellow citizens have the same rights that he does. Freedom does not give him 

an excuse to trample on his neighbors’ rights and brush aside their objections 
J-S21003-19

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with his middle finger. Such conduct is an insult to the flag that he uses to 

block Appellees’ view of his driveway.

We conclude that Appellants’ business violated the Township Code’s 

definition of “home occupation, no-impact” by running afoul of subsections 

(1), (5) and (7) of Section 10107(a) of the MPC. Preliminary injunctive relief 

was necessary to prevent Appellants from continuing to violate a Township 

zoning ordinance. Township of Little Britain v. Lancaster County Turf 

Prod., Inc., 604 A.2d 1225, 1228-29 (Pa. Cmwlth. 1992)6 (reinstating 

preliminary injunction in favor of township against property owner due to 

owner’s violation of zoning ordinance); see also DiMattia v. Zoning Hearing 

Board of East Whiteland Township, 168 A.3d 393, 398 (Pa. Cmwlth. 2017) 

(zoning board properly prohibited property owners from using residential 

property to build and maintain race cars, because such use was not clearly 

incidental to and customarily found in connection with the primary residential 

use of the property; race car work was regular daily activity more analogous 

to vehicle repair shop in its intensity than to homeowner working on his own 

vehicle in his garage or mere storage of vehicles); Page v. Zoning Hearing 

Board of Walker Township, 471 A.2d 1348, 1350 (Pa. Cmwlth. 1984) 

(homeowner could not conduct small motor vehicle repair business in 

____________________________________________

6 Decisions of the Commonwealth Court are not binding upon this Court but 

may serve as persuasive authority. Carmen Enterprises, Inc. v. 

Murpenter LLC, 185 A.3d 380, 393 n.2 (Pa. Super. 2018). 
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detached garage in residential dwelling; such businesses are not within 

category of pursuits customarily conducted on residential premises).

Next, Appellants argue that the preliminary injunction’s directives about 

the tools that Appellants cannot use and the time Appellants cannot work on 

repairing or restoring automobiles (6 p.m. to 8 a.m.) are overbroad. We 

disagree. 

Where the essential prerequisites of an injunction are satisfied, the court 

must narrowly tailor its remedy to abate the injury. John G. Bryant Co., 

Inc. v. Sling Testing & Repair, Inc., 369 A.2d 1164, 1167 (Pa. 1977). An 

injunction “should be as definite, clear, and precise in its terms as possible, 

so that there may be no reason or excuse for misunderstanding or disobeying 

it.” George F. Mayer and Sons v. Com, Dpt. Of Environmental 

Resources, Philadelphia Strike Force, 334 A.2d 313, 315 (Pa. Cmwlth. 

1975). “When practicable,” an injunction “should plainly indicate to the 

defendant all of the acts which he is restrained from doing, without calling 

upon him for inferences or conclusions about which persons may well differ.” 

Id. 

Here, the court enjoined Appellants from using “grinders, sanders, 

compressors, solvents, spray paint tools or other tools or items associated 

with the repair of automobiles or other vehicles unless those vehicles are titled 

in their name and used as their personal vehicles.” Decision, at 1. Appellants 

complain that “tools or items associated with the repair of automobiles of other 
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vehicles” is too broad because it covers tools that are not noisy and noisy tools 

that Appellants use for legal purposes other than for automotive work. We 

see no reason to revise this language, because any tools are permissible 

under the preliminary injunction so long as Appellants limit their use to the 

hours of 8 a.m. to 6 p.m. and to vehicles titled in Appellants’ name that serve 

as Appellants’ personal vehicles.

Equally reasonable is the injunction’s time restriction enjoining work 

between 6 p.m. and 8 a.m. Appellant Greer works on vehicles at unreasonable 

hours, often past 10:00 p.m. He also often idles his van and other vehicles 

early in the morning. The noise and odors continue deep into the night and 

substantially interfere with Appellees’ use of their own property. Merely 

because Greer found it convenient to work on automobiles on nights and 

weekends does not entitle him to disregard Appellees’ right to peaceful 

enjoyment of their residence. As we said above, his excuse that “it’s a free 

country” does not entitle him to disregard the rights of his fellow citizens. 

For these reasons, the time and manner restrictions in the preliminary 

injunction were well within the court’s discretion because they are rationally 

tailored to curb Appellants’ infringement of Appellees’ rights. 

Third, invoking the doctrine of unclean hands, Appellants argue that 

Appellees cannot obtain injunctive relief because they recorded Appellants’ 

oral communications in violation of the Wiretap Act. We find no merit in this 
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argument because Appellants did not have a reasonable expectation in the 

communications that Appellees recorded.

A party who comes into a court of equity “must come with clean hands. 

The doctrine of unclean hands requires that one seeking equity act fairly and 

without fraud or deceit as to the controversy at issue.” Morgan v. Morgan, 

193 A.3d 999, 1005 (Pa. Super. 2018). The doctrine “is derived from the 

unwillingness of a court to give relief to a suitor who has so conducted himself 

as to shock the moral sensibilities of the judge[.]” Id. “A court may deprive 

a party of equitable relief where, to the detriment of the other party, the party 

applying for such relief is guilty of bad conduct relating to the matter at issue.” 

Id. The court has “wide range” to “refuse to aid the unclean litigant,” but “in 

exercising this discretion, the equity court is free to refuse to apply the 

[unclean hands] doctrine if consideration of the record as a whole convinces 

the court that [its] application . . . will cause an inequitable result.” Id.

The Wiretap Act provides in pertinent part:

Any person whose wire, electronic or oral communication is 

intercepted, disclosed or used in violation of this chapter shall 

have a civil cause of action against any person who intercepts, 

discloses or uses or procures any other person to intercept, 

disclose or use, such communication; and shall be entitled to 

recover from any such person ...

18 Pa.C.S.A. § 5725(a). The Act further defines an “oral communication” as

[a]ny oral communication uttered by a person possessing an 

expectation that such communication is not subject to interception 

under circumstances justifying such expectation. The term does 

not include any electronic communication.
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18 Pa.C.S. § 5702. To establish a prima facie case under the Wiretap Act for 

interception of an oral communication, a claimant must demonstrate that: (1) 

he engaged in a communication; (2) he possessed an expectation that the 

communication would not be intercepted; (3) his expectation was justifiable 

under the circumstances; and (4) the defendant attempted to, or did 

successfully, intercept the communication, or encouraged another to do so. 

Agnew v. Dupler, 717 A.2d 519, 523 (Pa. 1998). Agnew explained that

in determining what constitutes an ‘oral communication’ under the 

Wiretap Act, the proper inquiries are whether the speaker had a 

specific expectation that the contents of the discussion would not 

be intercepted, and whether that expectation was justifiable under 

the existing circumstances. In determining whether the 

expectation of non-interception was justified under the 

circumstances of a particular case, it is necessary for a reviewing 

court to examine the expectation in accordance with the principles 

surrounding the right to privacy, for one cannot have an 

expectation of non-interception absent a finding of a reasonable 

expectation of privacy. To determine the existence of an 

expectation of privacy in one’s activities, a reviewing court must 

first examine whether the person exhibited an expectation of 

privacy; and second, whether that expectation is one that society 

is prepared to recognize as reasonable.

Id. In Agnew, a police officer alleged that her chief violated the Wiretap Act 

by monitoring her squadroom conversations with another officer through an 

intercom system. Our Supreme Court held that these conversations were not 

“oral communications” under the Wiretap Act, because the officer did not 

possess a reasonable expectation of privacy in the conversations: the

squadroom door was open, all conversations could be heard without 

amplification in the chief’s office, the chief had the light on in his office, and 
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the intercom lines on squadroom telephones could have been open at any 

time. Id. at 524.

More recently, in Pennsylvania State Police v. Grove, 161 A.3d 877 

(Pa. 2017), the Supreme Court addressed whether police officers violated the 

Wiretap Act when they captured oral communications at the scene of a motor 

vehicle accident through the use of cameras (“MVRs”) mounted in police

vehicles. Proper analysis, the Court explained, “must begin with a showing 

that ‘oral communications’ are involved in the first instance; we need not 

reach the second question regarding notice if the individuals recorded could 

not have had a justifiable expectation the communications would not be 

intercepted.” Id. at 901. Where conversations take place within earshot of 

others, the conversations are not “oral communications” under the Wiretap 

Act, because the individuals in the conversations “could have had no 

reasonable expectation of privacy, or any justifiable expectation that their 

statements and images were not being captured on MVRs, or by any number 

of cellphones for that matter.” Id. at 902. The Court held that the Wiretap 

Act did not preclude disclosure of the MVRs’ contents:

Trooper Thomas’s MVR included communications between the 

troopers themselves (who cannot possibly have had an 

expectation their conversations were not subject to interception), 

and between the troopers and the witnesses and drivers. Our 

review of the record demonstrates these other speakers also could 

not have had a justifiable expectation their conversations would 

not be intercepted, and accordingly, the MVRs do not contain any 

“oral communications” protected under the Wiretap Act. The 

conversations occurred in broad daylight at the scene of an 

accident on a public roadway, to which state police officers 
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responded. The conversations took place within earshot and easy 

view of bystanders or passersby . . . It is clear the individuals at 

the scene could have had no reasonable expectation of privacy, or 

any justifiable expectation that their statements and images were 

not being captured on MVRs, or by any number of cellphones for 

that matter.

Id. at 902.

Based on these authorities, we hold that Appellees’ recordings of 

Appellants in the present case did not capture any “oral communications”

under the Wiretap Act, because Appellants lacked a justifiable expectation 

their conversations would not be intercepted. The visual component of the 

recordings was entirely proper. Appellees did not film Appellants’ personal

areas, such as their bedrooms or bathrooms. Appellees placed their camera 

on the windowsill in their house and directed it outside at the driveway and 

the side of the detached garage where Appellants worked on vehicles. The

audio component of the recordings was proper as well. The purpose of the 

audio recordings was to document the noise generated by Appellants’ 

commercial automobile activities, not for capturing statements of persons on 

Appellants’ property. When the camera captured statements, it was because 

Appellant Joseph Greer was cursing, yelling and/or gesturing at Appellees 

while fully aware that he was being recorded. Appellants had no reasonable 
J-S21003-19

- 20 -

expectation of privacy in these public outbursts—especially when they were 

directed at or towards Appellees. Appellants’ unclean hands argument fails.7

In summary, the trial court properly exercised its discretion by granting 

a preliminary injunction to Appellees. 

Decision affirmed to the extent it granted preliminary injunction to 

Appellees. Appeal otherwise quashed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/25/19

____________________________________________

7 We also observe that Appellants’ claim of unclean hands is unconvincing 

because Appellant Joseph Greer himself used cameras to record Appellees.