HomeMy WebLinkAbout09-02-15 .-�.�
c� ;� �
� �, .� �
-... o rn �.,
OM �' �`-,, -� �J; .-,� �.,
�_r ' � -v ,��
-� �� �::�
LITLILAKIS ,-; �, ._.�
Jason P.Kutulakis,Esqwre �,3
Attomey I.D.#804ll - :, , '"r% ;-, `:`i
Brandon S.O'Donnell,Esquire � _.-- �•�
Attomey I.D.#316575 ' c�;>
2 West High Street �°`� �� ('Yl
�__
Carlisle,PA 17013 �� �;7 �
(71'n 249-0900 tp `�'7
. IN THE COURT OF COMMON PLEAS OF
. CUMBERLAND COUNTY, PENNSYLVANIA
IN RE. ESTATE OF . ORPHAN'S COURT DIVISION
JOHN G. MOHL ,
. NO. 2014-00723
RESPONDENT' MOTION FOR RE ON IDE ATION EN BAN
F TUD E PT. EY'S ORDER OF O RT FROM A TGiT T 201
AND NOW, this 2"d day of September, 2015, comes the Respondent, Josua Mohl, Executor
for the Estate of John G. Mohl, by and through his counsel, Jason P. Kutulakis, Esquire and
Brandon S. O'Donnell, Esquire, of ABOM & KUTULAKIS, L.L.P., and respectfully files the
Motion for Reconsideration en banc of Judge Placey's Order of Court from August 13, 2015
averring the following:
1. On May 27, 2015, Peririoner, Beverly Daum, filed a Petirion for Contempt alleging that
Respondent was in contempt of Orders of Court dated August 22, 2014 October 9, 2014 in
the above referenced matter.
2. The August 22, 2014 Order of Court was entered to both the above Orphan's Court
Docket, as well as, a Civil Docket, Docket No. 2013-0520 (an acrion for Parrition of Real
Property).
�
3. The August 22, 2014 Order of Court states in pertinent part, "...the parties are prohibited
from disposing unilaterally of any asset at issue in this civil case and are directed to preserve
assets at issue from further deterioration." See paragraph 5 of August 22, 2014 Order of
Court attached as Exhibit A).
4. The October 9, 2014 Order of Court was also entered to the above Orphan's Court Docket,
as well as, a Civil Docket,Docket No. 2013-0520 (an action for Parrition of Real Property).
5. The October 9, 2014 Order of Court states in pertinent part, "..the personal property claims
are to be handled through the estate. Defendant is directed to submit the previously
identified informal claim in a formal claim in the estate matter. No items identified in the
formal claim shall be disposed of absent agreement of the parties or further Order of
Court." (See October 9, 2014 Order of Court attached as Exhibit B).
6. On August 13, 2015, the Honorable Judge Placey entered an Order finding Respondent in
Contempt of the Court's Orders for violating"the spirit and intent of the Court Order." See
August'13, 2015 Order of Court attached as Exhibit C).
7. Respondent requests reconsideration en banc of Judge Placey's Order dated August 13, 2015
for the following reasons:
a. To sustain a finding of civil contempt, it must be shown that (1) fhe contemnor had
notice of the specific order or decree; (2) the act constituting the violation was
voluntary; (3) the contemnor acted with wrongful intent. Lachat v. Hinchcliffe, 769
A.2d 481, 89 (Pa. Super. 2001).
b. Additionally, a person may not be held in contempt of court for failing to obey an
order that is too vague or that cannot be enforced. Id.
c. It is well established in Pennsylvania, "to be punished for contempt, a party must not
only have violated a court order, but that order must have been `defirute, clear, and
specific — leaving no doubt or uncertainty in the mind of the contemnor of the
prohibited conduct."' Id. at 488-89 (internal citations omitted).
d. In the instant case,Judge Placey's August 22, 2014 Order of Court is vague in that it
is indefuute,unclear and not specific.
e. For instance as presented in Respondent's Answer to the Petition and on the
Hearing for Contempt, Respondent believed the Order was directed to the asset at
issue in the civil Partition case, the real property. Additionally, Petitioner at no time
prior to that Order counterclaimed for personal property in the Partirion acrion.
Furthermore, Petitioner had allowed a leak in the home to deteriorate the ceiling of
the kitchen and failed to have the home repaired for months.
f. All "inferences and ambiguities" in an underlying order must be construed in favor
of the alleged contemnor. Id. at 490.
g. Respondent understood the August 22, 2014 Order was entered to protect him from
Peririoner further destroying the real property since exclusive possession was granted
to Peririoner and Respondent was not allowed on the premise to make repairs or
adininister f�es.
h. Moreover, to punish a person for contempt, a "plausible reading" of an order is not
enough. Id.
i. Furthermore, Peririoner had not filed a formal claim with the estate for items in the
possession of the decedent at his death. In reality, a formal claim was not filed until
Apri12015.
j. At the Contempt Hearing, the Honorable Judge Placey explored ownership of the
property in question, a task more appropriately heard at a Hearing on the clauns
against the Estate not a Petition for Contempt of a Court Order.
k. Respondent did not willfully violate the Court Order as ownership of the property in
the possession of decedent was not at issue in the Orders from August 2014 and
October 2014 since a formal claim had not been filed until Apri12015.
1. Therefore, Respondent could not be held in Contempt of the August 22, 2014 Order
of Court as determined in Judge Placey's August 13, 2015 Order finding the
Respondent in Contempt
m. Additionally,Respondent is not in contempt of the October 9,2014 Order.
n. As adduced at the Contempt Hearing, the aucrion of the items in decedent's
possession at his death was held on October 5, 2014.
o. The Court issued an Order on October 9, 2014, four days after the auction.
p. Since the issuance of the October 9, 2014 Order, Respondent has not disposed of
any assets for which Peritioner made a claim.
q. Therefore, Respondent cannot be in contempt of the October 9, 2014 Order of
Court.
WHEREFORE, the Respondent respectfully requests that this Honorable Court
reconsider en banc Judge Placey's Order dated August 13, 2015; provide a written opinion
explaining and clarifying the Order from August 13, 2015, including the inclusions of any guns in
the Order on the Petition for Contempt; and order all claims for ownership of any property be
handled at the Hearing on the claims made against the Estate with both parties' preserving all
property until the final disposirion is heard by the Court.
Respectfully submitted,
ABONr&KuTuz.�xrs,L.L.P.
D11TE "I � ��� � ' � �
�randon S. O'Donnell,Esquire
Supreme Court ID No. 316575
Jason P. Kutulakis,Esquire
Supreme Court ID No. 80411
2 West High Street
Carlisle, PA 17013
(717) 249-0900
Attorney.r for I�e.rpondent
VERIFICATION
PURSUANT TO Pa.R.C.P. 1024(cl
Brandon S. O'Donnell, Esquire, states that he is the attorney for the party filing the foregoing
document; that he makes this affidavit as an attorney, because the party he represents lacks sufficient
knowledge or informarion upon which to make a verification and/or because he has greater personal
knowledge of the information and belief than that of the party for whom he makes this affidavit;
and/or because the party for whom he makes this affidavit is outside the jurisdicrion of the court, and
verification of none of them can be obtained within the time allowed for the filing of the document;
and that he has sufficient knowledge or information and belief, based upon his investigarion of the
matters averred or denied in the foregoing document; and that this statement is made subject to the
penalries of 18 Pa.C.S. 4904,relating to unsworn falsification of authoriries.
Date: 9/2/15 ``-� - -
Brandon S. O'Donnell,Esquire
. , . , . - � , � -
JOHN G. MOHL, . IN THE COURT OF COMMON PLEAS OF
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
. THE NINTH JUDICIAL DISTRICT
v ' .
. CIVIL ACTION - LRW
BEVERLY ANN DAUM, . 2013-0520 CIVIL TERM
Defendant .
*********�*******************
IN RE: . IN THE COURT OF COMMON PLEAS OF
. CUMBERLAND COUNTY, PENNSYLVANIA
ESTATE OF . THE NINTH JUDICIAL DISTRICT
. ORPHANS ' COURT DIVISION
JOHN G. MOHL . 21-14-723
IN RE: MOTION FOP. EXCLUSIVE POSSESSION
ORDER OF COURT
�
AND NOW, this 22nd day of August, 2014, following
argument on the motion, the following protective order is entered
designed to preserve the assets at issue in the civil case and
the estate and provide reasonable access to the executor:
1 . Beverly Ann Daum is granted exclusive
temporary possession of the real property pending further Order
of Court subject to reasonable access by the executor of the
estate of John Mohl.
2 . Reasonable access to the property shall
require notice by the executor to the Defendant. The first
notice period shali require not iess tnan 48 hours notice, and
subsequent notice periods shall not be less than 3 hours in
advance of executor' s intention to inspect the property.
3 . Access to the property is given to the
executor for the purposes of inventory only. The notice of the
intention to exercise access to the property shall include
information as to who is coming onto the property.
4 . If Defendant is concerned of the person or �
number of persons coming to the property she may employ the m
SX �'
services of a state certified constable to preserve the peace. W �
�
5 . In addition to the above access parameters,
the parties are prohibited from disposing unilaterally of any
asset at issue in this civil case and are directed to preserve
assets at issue from further deterioration.
6 . No further relief is granted at this time .
• B ,
Thoma . Placey C. P .J.
Linda .Clotfelter, Esquire c-� ,,,,,, _
4076 Market Street c �' ��
Suite 100 �� '`' -'-�_,_
Camp H i 11, PA 17 011 i� � r�r.-
_ cn.t" ��-,;
- ^C.2� � p°;-='
Brandon S . O 'Donne 11, Esquire <Q ��'
�Jason P. Kutulaki s, Esquire z� � c"':
2 West High Street y`� c.� M1_:iF.�
Carlisle, PA 17013 �� -
__; ,,..
-, �:�, .
:mae
. . . Ti"i�3V �.'!.,',�}'��s'Z���'�� i.:.�"..L.�_ii�`.f_) .
In T�stimor,y wi•,�:reo;`, � f�GiF U.r:�O::�;i fi";/PlaliC�
anc!tl�e seal of said Ca r at G�,;i;sle, ra.
This �a day of 2:��_
, �} - _G�Piuthonotary
`t�.L!�,LL!'r'` � a
�
!/ ` �e`� ��
JOHN G. MOHL, . IN THE COURT OF COMMON PLEAS OF
Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
. THE NINTH JUDICIAL DISTRICT
v • �
. CIVIL ACTION - LAW
BEVERLY A. DAUM, . 2013-0520 CIVIL TERM
Defendant .
***�********************
IN RE: . IN THE COURT OF COMMON PLEAS OF
. CUMBERLAND COUNTY, PENNSYLVANIA
ESTATE OF . THE NINTH JUDICIAL DISTRICT
. ORPHANS ' COURT DIVISION
JOHN G. MOHL . 21-14-723
IN RE: PRETRIAL MOTIONS
ORDER OF COURT
AND NOW, this 9th .day of October, 2014,
prior .to testimony in the partition action, the personal property
claims are to be handled through the estate. Defendant is
directed to submit the previously .identified informal claim in a
formal elaim in the estate matter. No items identified in the
formal claim shall be disposed of absent agreement of the parties
or further Order of Court.
By the Court, -
Thomas A. Placey C.P .J,
Linda Clotfelter, Esquire
4076 Market Street
Suite 100 � ,,,,, c::-
Camp Hi11, PA 17011 c C' `�
�3 .c- :
1'R� O �^-•
Jason��'Kutulakis, Esquire Z� � vE '
��.'andon S . O' Donnell, Esquire �r ��
� 2 West High Street �z O �t"
Carlisle, PA 17013 =�
Dr�-, �° c.�-�-
2p � T---r
:mae Dc -- `-,
�
� .. _ '�~,
1���I� � ,�.. y�
EXHIBIT -< c.�rr =�-
►� -.•.
� „ �
IN RE: ESTATE OF JOHN G. MOHL �'
� �
�.
t�ouatp oi @Cum6criarra
IN THE COURT OF COMMON PLEAS
�, - �.. OF THE NINTH JUDICIAL DISTRICT
o c„ r� ..
� -�-� m �:-�� f' 21-14-723
�
� � E ' �
►.�. 4.- c� �- - IN RE: PETITION FOR CONTEMPT OF COURT
�� t _ _
�� : ..
c; `.:' � L� �-� ��_` ORDER OF COURT
�v Ci J �. C"7 � LLy
�; � ��AND �4/, this 13t" day of August 2015, upon consideration of the Petition for
� � � �
Cont€ri�pt of Court, the Response thereto, and a hearing on the Petition, it is found that
Respondent violated the spirit and intent of the Court Order and is therefore found in
contempt of court. The following remedies are given as a result of this contempt finding:
1. Petitioner is awarded as sole owner the identified property that was given
to the auctioneer. Specifically, Petitioner is found to have been the owner
of:
a. An oak clawfoot table,
b. An oak wash stand,
c. A pair of framed bluebird prints, and
d. An oak library table.
2. Respondent shall reimburse Petitioner the price paid by Petitioner for the
✓S�
retrieval of the above property to her within 30 days of this Order.
3. Respondent shall retrieve the cherub lamp from the auctioneer and return
the lamp to Petitioner within 3� days of this Order. EXHIBIT
�
� �
4. The ownership of any firearms that may be in dispute shall be settled in
dollar amounts through the estate process unless a claim is made for a
specific firearm that is prior to the disposal of the large firearm collection.
5. The ownership of the refinished east lake chair with needle point is part of
the estate and not the property of Petitioner.
All remaining claims shall be submitted to the Orphan's Court for accounting in
accordance with the Orphan's Court's rules and procedures.
zE _ _-- T .- - ..
- ,
i
Thomas A. PI cey C.P.J.
Distribution:
Jason P. Kutulakis, Esq.
Mark A. Mateya, Esq.
CERTIFICATE OF SERVICE
AND NOW, this 2nd day of September, 2015, I, Sally Evans, of Abom & Kutulakis, L.L.P,
hereby cerrify that I did serve a true and correct copy of the foregoing Motion for Reconsiderarion
of the August 13,2015 Order of Court by depositing, or causing to be deposited, same in the United
States Mail,postage prepaid addressed to the following:
Mark A. Mateya, Esquire
55 West Church Avenue
Carlisle,PA 17013
Attorney for Petitioner
��
�
!�il�
Sally Evans