J-S21003-19

                                  2019 PA Super 200

    DOUGLAS MATENKOSKI AND SHIU                       IN THE SUPERIOR COURT
    MATENKOSKI                                           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.3 In 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


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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



____________________________________________


6Decisions 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




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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. 


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