compilation statement lists the landfill as its sole asset (D-53).
I find defendants' failure to produce an appraiser's valuation of the landfill property to be a serious infirmity in their case. I find it so partly because the landfill property is encumbered by a two million dollar mortgage
to Providence Builders, Inc.
(N.T. I. 52; D-53A). The mortgage apparently was created, in part, to finance an agreement whereby Moyer's Landfill, Inc. undertook to purchase from Providence Builders, Inc. a property named Troop Farm for three million dollars (D-63).
This agreement has proved to be a somewhat spectral transaction. No money has been paid under the agreement; however, the seller, Providence Builders, Inc. has neither voided the agreement, nor declared a default, nor filed any legal action pursuant to the terms of the agreement (N.T. III. 70; D-63). Mr. Moyer testified that the Troop Farm purchase agreement and the two million dollar mortgage attending it were undertaken, in part, in order to provide Providence Builders, Inc. and Mr. Nielson with some assurance that they would be compensated for soil removed from Troop Farm by Landfill (N.T. II. 48). However, Mr. Moyer also testified that he did not know how much soil has been removed (N.T. II. 48), and that he has made no attempt to determine the amount or value of the soil (N.T. II. 84). It appears that Mr. Moyer might have considered, and might still consider, seeking to void the Troop Farm purchase agreement and to modify, at the least, his mortgage with Providence Builders, Inc. to reflect the actual amount which the landfill enterprise is in arrears to Troop Farm. Were these undertakings successful, then the landfill property itself might become a basis to raise needed funds to comply with the court's remedial decrees.
C. Howard and Catherine Moyer
With regard to Howard and Catherine Moyer, I find that the following infirmities in the defendants' evidence, in addition to infirmities already mentioned, compel the conclusion that they have not proven financial incapacity.
Mr. Moyer is the sole shareholder of Hy-Vue Farms, Inc. ("Hy-Vue Farms"). Mr. Falconiero, Hy-Vue Farms' accountant, prepared a compilation statement of the enterprise which was submitted into evidence, but no audited financial statement was produced. (N.T. I. 48-49, 60; D-56). Nor was an appraiser's valuation of Hy-Vue Farms' real property submitted. Mr. Moyer has placed Hy-Vue Farms' real property on the market, and in place of an appraiser's valuation of that property he submitted his asking price, $ 219,000. In the absence of an audit, I have no reliable means of determining what further funds Mr. Moyer could have raised, and could raise still, by liquidating other assets of this ill-starred concern. These various uncertainties regarding the worth of the concern are particularly significant inasmuch as one potential source of funds for compliance by Mr. Moyer is a note for $ 1.5 million dollars payable by Hy-Vue Farms to him. (N.T. I. 47; D-56).
In the absence of an appraiser's valuation, I, likewise, have no reliable basis on which to determine the value of the Moyers' Luzerne County property which they purchased in 1971 for $ 21,500 and which is now under agreement of sale for the purchase price of $ 20,000 to a long-standing friend of Mr. Moyer (N.T. III. 43).
In light of the evidence adduced at the hearings on this matter, and defendants' failure to make out their defense of financial impossibility in opposition to plaintiffs' petitions for contempt, I find the defendants to be in contempt of my orders of June 10 and August 27, 1981, and I have decided upon the following sanctions. By an order accompanying this memorandum, I have ordered defendants to pay a fine of $ 10,000. Seven thousand five hundred ($ 7,500) dollars of that fine will be earmarked for paying the cost of conducting a full financial audit of Moyer's Landfill, Inc., Grange Environmental Corporation, and Hy-Vue Farms, Inc. and for the cost of appraising the values of all real properties belonging to Howard and/or Catherine Moyer. Two thousand five hundred ($ 2,500) dollars of the fine will be earmarked for paying reasonable costs and attorney's fees incurred by private plaintiffs in prosecuting this contempt proceeding.
1. For the reasons set forth in the accompanying memorandum, defendants Moyer's Landfill, Inc., Grange Environmental Corporation, Howard Moyer, Jr. and Catherine Moyer ("defendants") are hereby found to be in contempt of my orders of June 10, 1981 and August 27, 1981.
2. As sanction for contempt, defendants are hereby ORDERED to pay to the court a fine of $ 10,000.
3. Until a further order from this court directs otherwise, the fine will be kept in an account by the Clerk of Court.
4. Seven thousand five hundred ($ 7,500) dollars of the fine, or any smaller portion as may prove sufficient, will be earmarked for the purpose of paying the cost of conducting a full financial audit of Moyer's Landfill, Inc., Grange Environmental Corporation and Hy-Vue Farms, Inc. and for the cost of appraising the values of all real properties belonging to Howard and/or Catherine Moyer.
5. Two thousand five hundred ($ 2,500) dollars of the fine or any smaller portion as may prove sufficient will be earmarked for paying reasonable costs and attorney's fees incurred by private plaintiffs in prosecuting this contempt proceeding.
6. Counsel for private plaintiffs shall submit a petition for costs and attorney's fees within twenty days of this order.