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[U] Yoho v. Asbestos Removal Control, Inc.

Superior Court of Pennsylvania

November 15, 2013

JAMES YOHO, Appellant
v.
ASBESTOS REMOVAL CONTROL, INC., Appellee JAMES YOHO, Appellant
v.
ASBESTOS REMOVAL CONTROL, INC., Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered September 20, 2012 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2011-13259

Appeal from the Order Entered September 13, 2012 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2011-13259

BEFORE: BOWES, OTT, and FITZGERALD, [*] JJ.

MEMORANDUM

BOWES, J.

James Yoho appeals pro se from two orders denying his fourth and fifth contempt petitions filed in this action.[1] After consideration of the facts and law, we reverse and remand.

On October 26, 2011, the present civil action was instituted when the Prothonotary of Luzerne County entered judgment in the amount of $3, 497 in favor of Appellant and against Asbestos Removal Control, Inc., Appellee. Judgment was entered based upon an award by a magisterial district judge that was not appealed by Appellee. Appellant, who has proceeded pro se throughout these proceedings, then filed a document entitled, "Verified Statement of and Praecipe to Serve Defendant at Last Known Mailing Address, " which contained the following averments. Appellee's record address was on South Third Street, Shamokin, which was its registered address with the Bureau of Corporations of the Pennsylvania Department of State as well as where Appellant achieved personal service during the proceedings before the magisterial district judge.

The Luzerne County prothonotary attempted to serve Appellee notice of the present case at that address, but the notice was returned as undeliverable and unable to forward. Appellant disseminated interrogatories in aid of execution at the South Third Street address, with the same result. Appellant believed that Appellee "intentionally disabled its ability to receive mail sent to its address of record." Verified Statement of and Praecipe to Serve Defendant at Last Known Mailing Address, 11/10/11, at ¶ 4. Appellant asked that the prothonotary be permitted to resend notice at an address where Appellee would receive actual notice. Specifically, Appellant averred that the address of Donna Deitrick, Appellee's sole owner and officer, was 123 Miller Lane, Shamokin, which Appellant knew "[b]y several means" to be "Ms. Deitrick's residence of long standing." Id. at ¶ 6. He also mailed a discovery request to that address, and it was not returned. Appellant thus asked that notice of this lawsuit be sent to Ms. Deitrick, as Appellee's sole owner and corporate officer, at the noted address.

The next document of record is a December 8, 2011 motion to compel discovery. Appellant averred that the present action was one to enforce a money judgment. On November 1, 2011, he served interrogatories and a request for production of documents to Ms. Deitrick at her residence, but those documents were not answered. On December 9, 2011, the court granted that motion and ordered Appellee to respond to the interrogatories and request for production and informed Ms. Deitrick that "as sole owner and operator of the Defendant corporation, she will be held responsible for effecting said compliance." Order of Court, 12/9/11, at 1.

On January 26, 2012, Appellant filed his first petition for contempt. While Ms. Deitrick had answered the interrogatories and request for production on behalf of Appellee, she failed to verify or execute those documents. The answers that Ms. Deitrick gave to the interrogatories indicated that Appellee had no assets other than an ownership interest in 27 North Carbon Street, Shamokin, and in 237 South Third Street, Shamokin. A rule was issued for Appellee to show cause why the contempt should not be granted, and it was returnable on February 27, 2012.

Before the first contempt matter was entertained, on February 15, 2012, Appellant filed a second motion to compel based upon Appellee's failure to answer a second request for documents and its improper response to Appellant's request for inspection. Specifically, Appellant had disseminated a request to inspect the real property that Appellee owned and to inspect its business records. Ms. Deitrick wrote answers to the request for inspection. Without offering a reason, she stated that she would not permit Appellant to view the properties in question. With respect to the business records, Ms. Deitrick, who signed a sworn verification that her answers to the request to inspect were true, indicated, "no records received [sic] or kept, due to no business [sic]." Requests for Inspection; Exhibit 2 to Motion to Compel, 2/15/12, at ¶ 3. A hearing was scheduled on Appellant's second motion to compel for March 12, 2012.

On February 27, 2012, the trial court granted the first petition for contempt, ordered that Appellee properly verify the first set of interrogatories and request for production, and imposed a fee of $500 against Appellee and in favor of Appellant to reimburse Appellant for his costs and expenses within thirty days of the order's entry. Appellant then issued numerous subpoenas to produce evidence in aid of execution. The subpoenas were directed to non-parties to this action to ascertain if Appellee had any bank accounts or other assets with them.

On March 12, 2012, the trial court granted Appellant's second motion to compel and ordered Appellee to answer the second request for production of documents and to amend its response to Appellant's request for inspection to either consent to a viewing of the real estate owned by it, or to raise a proper objection to that action. That same day, Appellant filed a verification that Ms. Deitrick was refusing to accept mail from him at her 123 Miller Lane address, and that mail sent to her residence was returned to the post office, indicating that the addressee had refused delivery.

On March 30, 2012, Appellant filed a second petition for contempt, receiving a rule returnable on May 7, 2012. Therein, he averred that Appellee was in violation of the February 27, 2012 order in that it had not answered Appellant's second request for production of documents, had failed to alter its answer to his request for inspection, and did not pay the entire $500 fine. Appellant additionally asked that contempt be issued based upon Ms. Deitrick's refusal to accept mail from him regarding this action. Appellant averred that Ms. Deitrick had sent Appellant four checks. The first one indicated in the memo line that it was sent on behalf of Appellee and was in the amount of $100; it was dated November 15, ...


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