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THOMAS v. E. C. MUTTER CONSTRUCTION COMPANY (03/13/62)

March 13, 1962

THOMAS
v.
E. C. MUTTER CONSTRUCTION COMPANY, INC., APPELLANT.



Appeals, Nos. 438 and 469, Jan. T., 1961, from order of Court of Common Pleas of Luzerne County, Oct. T., 1959, No. 13, in case of Enoch H. Thomas, Jr., as receiver of Skyline Construction Company v. E. C. Mutter Construction Company, Inc. Order reversed.

COUNSEL

E. C. Marianelli, for appellant.

George B. Ritchie, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Jones

[ 405 Pa. Page 511]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

Two questions are herein presented: (1) may a writ of ne exeat issue against an executive officer of a corporation to enforce satisfaction of a money decree entered by the court only against the corporation? (2) if the writ may so issue, was its issuance and continuance justified in the instant factual situation?

Enoch H. Thomas, Jr. (Thomas), court-appointed receiver of Skyline Construction Company, instituted an equity action*fn1 in the Court of Common Pleas of Luzerne County against E. C. Mutter Construction Co., Inc. (Mutter Company), a Rhode Island corporation which maintains a Wilkes-Barre, Pa., office where, as a duly registered foreign corporation, it does business. The decree entered in this action directed entry of a $27,602 judgment for Thomas against Mutter Company.

On July 13, 1961, Thomas petitioned the court below "to direct issuance of a writ of ne exeat",*fn2 recommending $27,602 bail. This petition set forth entry of the decree against Mutter Company, that E. C. Mutter (Mutter) was the "principal or possibly sole stockholder" of Mutter Company, that Thomas believed that "Defendant"*fn3 was "prepared to quit the jurisdiction for the purpose of defrauding [Thomas] of his rights" and that Thomas' belief was based "upon information received from various Realtors and from personal investigation of 'For Sale' signs placed upon [Mutter Company's]

[ 405 Pa. Page 512]

    place of business." Ex parte, the court directed the issuance of the writ against Mutter, not Mutter Company, and fixed $27,602 bail. Mutter Company - not Mutter - answered the petition averring, inter alia, that Mutter Company had no intention of departing from the court's jurisdiction.

In support of Thomas' claim that either Mutter or Mutter Company, or both, were preparing to leave the jurisdiction no hearing was held nor testimony taken. Nevertheless, on July 19, 1961, after Mutter Company's answer was filed, the court directed the issuance of a writ of ne exeat to the sheriff, or other law officer, of Luzerne County, "directing him to arrest [Mutter], President of [Mutter Company], and all other executive officers of the said corporation, and place him, them and each of them in the County Jail, unless and until he, they and each of them shall enter into a bond with good and sufficient sureties in the sum of $30,000... conditioned that [Mutter Company] through its executive officers shall satisfy and perform the final decree"*fn4 (emphasis supplied) or until such executive officers, before leaving the jurisdiction, shall inventory and turn over to a trustee or receiver all assets of Mutter Company.

Two days later, Mutter Company moved to quash the writ. The court refused to quash the writ; from that order both Mutter and Mutter ...


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