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HomeMy WebLinkAbout98-4145 equity (2)BOROUGH OF CARLISLE, PLAINTIFF IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ROBERT H. BARRETT, DEFENDANT 98-4145 EQUITY TERM IN RE: SANCTIONS FOR FAILURE TO COMPLY WITH AN ORDER DIRECTING DISCOVERY BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., November ,1999:- On July 22, 1998, plaintiff, the Borough of Carlisle, filed this complaint in equity against defendant Robert H. Barrett. Alleging that Barrett is the owner of eleven properties, eight improved, in the historic district of the Borough of Carlisle, the Borough sought the following equitable relief: A. That an agent be appointed to manage Barrett's eleven properties within the historic district in order to bring the properties into compliance with the code and historic district regulations; and B. That an injunction issue against Barrett prohibiting him from performing any repairs or alterations to any of his properties without first receiving certificates of appropriateness and building permits for such work; and C. That the Borough be awarded its reasonable attorneys fees in this action, and all previous actions, between the parties; and D. Such other equitable relief as the Court deems appropriate under the circumstances. (Emphasis added.) The genesis of this longstanding dispute between plaintiff and defendant is 98-4145 EQUITY TERM defendant's refusal to comply with the provisions of the Carlisle Historic District ordinance in bringing his property into compliance with the Borough's BOCA Code. Defendant has unsuccessfully challenged the regulations set forth in the Historic District ordinance. Barrett v. Borough of Carlisle, 707 ^.2 250 (Pa. Commw. 1998), petition for allowance of appeal denied 555 Pa. 714 (1998). Plaintiff has averred in its complaint, inter alia, that (1) defendant was found guilty of code violations in 1993, (2) he was found guilty of code violations in 1994, which judgment was affirmed by the Commonwealth Court of Pennsylvania,' (3) one of his properties was condemned by the Borough in December, 1994, which was affirmed in this court with his appeal to the Commonwealth Court being dismissed,2 (4) he was found guilty of code violations in 1995, (5) on October 5, 1995 and September 9, 1996, he was found in contempt of the condemnation order, (6) on February 14, 1996, he was found guilty of code violations, (7) on July 24, 1997, he was found guilty of twenty code violations, and (8) on May 15, 1998, he was found guilty of one hundred and fifty-eight code violations. In its complaint, the Borough avers that Barrett is an absentee owner and has undertaken a coordinated plan to blight the Borough's Historic District. It avers that 655 ^.2d 678 (Pa. Commw. 1995). ~Pa. Commw. __(208, 209 C.D. 1995, March 31, 1995). -2- 98-4145 EQUITY TERM Barrett has continued to refuse to repair and maintain the properties he owns in the Historic District, and to comply with the Borough's ordinances, and that he has vowed not to comply with the ordinances because he refuses to recognize their validity and applicability to his properties. The Borough avers that it believes that Barrett's buildings can be salvaged and restored to comply with the BOCA Code and Historic District regulations without causing undue economic hardship. It further avers that Barrett intends to allow his properties to fall into such disrepair that no economic value will remain in them so that demolition can be affected, thus having a deleterious effect on the surrounding properties in the Historic District. The Borough concludes by averring that "The statutory and administrative remedies available to the Borough have been inadequate to insure enforcement of its code and historic district regulations." Barrett filed preliminary objections to the complaint which were dismissed on February 9, 1999. The court concluded that plaintiff, pursuant to the Borough of Kennet Square v. Lal, 165 Pa. Commw. 573 (1994), had stated a complaint upon which relief could be granted. Defendant filed an answer to the complaint on December 22, 1998. On January 8, 1999, defendant filed a notice of removal to the United States District Court for the Middle District of Pennsylvania. Plaintiff filed a motion to remand which was granted by an order of the District Court dated March 18, 1999. On April 29, 1999, plaintiff filed a motion to allow issuance of a subpoena to the Pennsylvania Historical and Museum Commission. That motion was denied on April 23, 1999. On -3- 98-4145 EQUITY TERM May 11, 1999, defendant filed a second notice of removal to the United States District Court for the Middle District of Pennsylvania. Plaintiff filed a motion for remand and on May 13, 1999, the District Court remanded the case to this court and further ordered its Clerk of Court to refuse to accept for filing any further notices of removal of the case. The Borough of Carlisle sought discovery in the form of answers to interrogatories, the production of documents, and the inspection of the eight improved properties subject to this dispute. Defendant refused to allow the inspection of the properties and failed to comply with much of the discovery requested. On June 3, 1999, following a hearing on plaintiff's motion to compel compliance with its request for discovery, the following order was entered: I. OBJECTIONS OF DEFENDANT TO PLAINTIFF'S INTERROGATORIES 1. Interrogatory No. 1. The objection IS SUSTAINED because the information sought is not relevant. 2. Interrogatory No. 2. The objection IS SUSTAINED except that defendant shall state his annual salary and any other income for the years 1996, 1997, 1998 and 1999 to date. 3. Interrogatory No. 5. The objection IS OVERRULED. Defendant shall answer this interrogatory in its entirety. 4. Interrogatory No. 7. Because defendant has identified only himself as an expert who will be called to testify, and he has answered the interrogatory with respect to himself, the objection IS SUSTAINED. 5. Interrogatory No. 10. The objection IS SUSTAINED because the information sought is not relevant. 6. Interrogatory No. 14. The objection IS OVERRULED. shall answer this interrogatory in its entirety. 7. Interrogatory No. 15. The objection IS OVERRULED. shall answer this interrogatory in its entirety. 8. Interrogatory No. 16. sought is not relevant. 9. Interrogatory No. 17. Defendant Defendant The objection IS SUSTAINED as the information The objection IS SUSTAINED as the information -4- 98-4145 EQUITY TERM sought is not relevant. 10. All interrogatories that defendant is ordered to answer as set forth above shall be answered within twenty (20) days of this date. II. PLAINTIFF'S MOTION TO COMPEL DEFENDANT TO COMPLY WITH PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS 1. Request No. 2. IS DISMISSED as overbroad. 2. Request No 6. The motion IS GRANTED, Defendant shall provide plaintiff with such documents. 3. Request No. 7. The motion IS GRANTED. Defendant shall provide plaintiff with such documents. 4. Request No. 8. IS DISMISSED as not relevant. 5. Request No. 9. IS DISMISSED as defendant was issued any such permits by plaintiff who has knowledge of them. 6. Request No. 10. IS DISMISSED as overbroad. 7. Request No. 11. The motion IS GRANTED, Defendant shall provide such documents to plaintiff. 8. All documents that defendant is ordered to produce as set forth above shall be produced within twenty (20) days of this date. III. REQUEST FOR INSPECTION OF IMPROVED PROPERTIES OF DEFENDANT AT 25 NORTH BEDFORD STREET, 35 SOUTH BEDFORD STREET, 37 SOUTH BEDFORD STREET, 122 EAST LIBERTY AVENUE, 134 EAST HIGH STREET, 136 EAST HIGH STREET, '138 EAST HIGH STREET AND 29 SOUTH EAST STREET 1. The request for the inspection of the aforesaid improved properties, which is opposed by defendant, IS GRANTED. 2. A group of up to six people may enter said properties, those people being one borough representative, the borough solicitor, a photographer who may be a borough representative, a real estate appraiser, a structural engineer and a contractor. 3. The entry of each property shall be for the purpose of inspecting, measuring, photographing, videotaping, testing, sampling, or analyzing the said properties and all fixtures and for code violations. 4. Each inspection may last for up to three hours. 5. The inspection schedule shall be as follows: a. The inspection of 25 North Bedford Street shall commence at 9:00 a.m., Monday, June 21, 1999. b. The inspection of 35 South Bedford Street shall commence at 1:00 p.m., Monday, June 21, 1999. c. The inspection of 37 South Bedford Street shall commence at -5- 98-4145 EQUITY TERM 9:00 a.m., Tuesday, June 22, 1999. d. The inspection of 122 East Liberty Avenue shall commence at 1:00 p.m., Tuesday, June 22, 1999. e. The inspection of 134 East High Street shall commence at 9:00 a.m., Wednesday, June 23, 1999. f. The inspection of 136 East High Street shall commence at 1:00 p.m., Wednesday, June 23, 1999. g. The inspection of 138 East High Street shall commence at 9:00 a.m., Thursday, June 24, 1999. h. The inspection of 29 South East Street shall commence at 1:00 p.m., Thursday, June 24, 1999. 6. Defendant shall provide complete access to these properties by the inspectors and shall not interfere with said inspections. 7. This inspection schedule may only be altered upon agreement of both parties for their convenience. (Footnote omitted.) Defendant filed a petition to vacate the discovery order of June 3, 1999. On June 17, 1999, an order was entered that "[t]he petition to vacate the discovery order dated June 3, 1999, is denied." On June 21, 1999, defendant filed an interlocutory appeal to the Commonwealth Court of Pennsylvania from the order of June 3, 1999. The appeal was docketed in the Commonwealth Court at No. 1662 C.D. 1999. On June 23, 1999, this court filed an opinion in support of the order of June 3, 1999. On June 28, 1999, defendant filed a second interlocutory appeal to the Commonwealth Court of Pennsylvania from the order of June 17, 1999, that denied his petition to vacate the discovery order issued on June 3, 1999. That appeal was docketed in the Commonwealth Court at No. 1662 C.D. 1999. On July 19, 1999, the Commonwealth Court at 1661 and 1662 C.D. 1999, quashed defendant's appeals as interlocutory. Plaintiff filed a motion to hold defendant in civil contempt for failing to comply with the inspection schedule set forth in the order of June 3, 1999. Following hearings, on -6- 98-4145 EQUITY TERM July 7, 1999, the following order was entered: [I] adjudicate you in civil contempt of court for violating this Court's inspection order of June 3, 1999. You are committed to the Cumberland County Prison until you purge yourself of contempt. You may purge yourself of contempt by advising me at any time that you will comply with the inspections as required by the order of June 3, 1999, and at that point I will then immediately set a new inspection schedule, and I will then have a sheriff take you to the first scheduled inspection, and if you comply with that inspection order, you may remain out of prison for as long as you continue to purge yourself of contempt by allowing all further inspections as scheduled. Defendant is to stand committed in civil contempt until the conditions of purge are met or he obtains a supersedeas from an Appellate Court. After defendant spent forty-one days in prison in defiance of the order to allow plaintiff to inspect his properties, he was released on August 17, 1999, on the following order: [d]efendant, Robert H. Barrett, having advised this court by letter received this date that he 'agrees to comply with the inspections as required by the Order of June 03, 1999,' a copy of which is attached hereto, and upon relation that the Carlisle Borough Solicitor is out of town until August 23, 1999, and that the gathering of the six people authorized by the order of June 3, 1999, to make said inspections cannot be quickly assembled, it is ORDERED: 1. The Carlisle Borough Solicitor shall provide this court with dates during which the inspections of the eight properties as provided for in the order of June 3, 1999, can be conducted at the rate of two inspections a day, one in the morning and one in the afternoon. 2. Following receipt of said dates an additional order will be entered scheduling the inspections at which time defendant will be held in compliance pursuant to the order of June 3, 1999, and his current agreement in writing that he will now comply with the inspections. 3. Defendant is temporarily released from commitment under this court's order of July 7, 1999, adjudicating him in civil contempt for violating the inspection order of June 3, 1999, conditioned upon his compliance with the new scheduling order to be entered. -7- 98-4145 EQUITY TERM On August 23, 1999, a new inspection schedule was ordered with the first inspection to commence at 9:00 a.m., Monday, August 30, 1999. Defendant appeared in court on August 30, 1999, with a motion to prohibit the inspections until plaintiff posted a bond to cover any injuries that might occur while its representatives were on his properties. The motion was denied and the inspections scheduled for that day and all subsequent dates per the order of August 23, 1999, were conducted. Defendant, however, continued to refuse to comply with that part of the discovery order of June 3, 1999, requiring him to answer interrogatories and produce certain documents. Plaintiff filed a petition to hold him in civil contempt. Following hearings, on October 7, 1999, the following order was entered: [p]ursuant to Pennsylvania Rule of Civil Procedure 4019(c)(4), I adjudicate you in civil contempt for failing to comply with the order of June 3, 1999. You may purge yourself of contempt by complying with the order by 1:15 p.m. on Wednesday, October 13, 1999. You are ordered to appear in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania at 1:15 p.m., Wednesday, October 13, 1999, to determine if you have complied with this order. If you have not complied, you will be committed to the Cumberland County Prison at that time until you purge yourself of contempt. At that hearing the Borough of Carlisle shall produce evidence of its counsel fees for obtaining this order of compliance, including its counsel fees incurred in obtaining the order of compliance dated June 3, 1999. Counsel fees will be awarded as part of defendant's conditions of purge of this order of civil contempt. He shall be then ordered to pay such counsel fees in full, not later than December 1, 1999 .... Defendant did not comply with the order as directed by October 13, 1999, and has been incarcerated in the Cumberland County Prison since that date for failing to answer interrogatories and produce documents under the sanction imposed by this -8- 98-4145 EQUITY TERM court pursuant to Pa. Rule of Civil Procedure 4019(c)(4).3 Having previously spent forty-one days in prison until he complied with that part of the order of June 3, 1999, for the inspection of the subject properties, and now going back to prison on October 13, 1999, for failure to comply with part of the same order directing him to answer interrogatories and produce documents, it is obvious that defendant's stubbornness is significantly delaying litigation of this case which was commenced on July 22, 1998. Pa. Rule of Civil Procedure 4019(c)(3), allows the following sanction for refusal to comply with a discovery order: [a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience. (Emphasis added.) In applying this sanction, the Superior Court of Pennsylvania stated in Stewart v. Rossi, 681 A.2d 214 (Pa. Super. 1996): We note initially that dismissal of a complaint as a discovery sanction is authorized under Pa.R.Civ. P. 4019. Pride Contracting, Inc. v. Biehn Construction, Inc., 381 Pa. Super. 155, 553 ^.2d 82 (1989); see also Lawrence v. General Medicine Ass'n, Ltd., 412 Pa. Super. 163,602 A.2d 1360 (1992) (judgment of non pros entered against plaintiff for violation of discovery rules); Miller Oral Surgery, Inc. v. Dine/lo, 416 Pa. Super. 310, 611 A.2d 232 (1992) (default judgment entered against defendant for discovery violation). Furthermore, the sanction to be imposed for a discovery violation is left to the sound discretion of the trial court. Miller Oral Surgery, Inc. v. Dine/lo, supra. However, since dismissal is the most severe sanction, it should be imposed only in extreme circumstances, and a trial court is required to balance the equities carefully and dismiss only where the violation of the 3 Defendant was also ordered to pay counsel fees to plaintiff in the amount of $981. -9- 98-4145 EQUITY TERM discovery rules is willful and the opposing party has been prejudiced, Pride Contracting, Inc. v. Biehn Construction, Inc., supra. Under these cases, the following factors are to be weighed: the nature and severity of the discovery violation, the defaulting party's willfulness or bad faith, prejudice to the opposing party, the ability to cure prejudice, and the importance of the precluded evidence in light of the failure to comply. (Emphasis added.) The most severe sanction as allowed under Pa. Rule of Civil Procedure 4019(c)(3) has been upheld for the failure to comply with a court order directing discovery. Pride Contracting, Inc. v. Biehn Construction, Inc., 381 Pa. Super. 155 (1989). Since the discovery order was entered following a hearing to compel on June 3, 1999, requiring defendant to answer certain interrogatories and produce certain documents, the nature and severity of his conduct has been egregious. He has completely failed to comply with the order for no legitimate reason. That failure has been willful, in bad faith, and has continued despite defendant's imprisonment for civil contempt since October 13, 1999. Defendant's bad faith is further evidenced by his filing two interlocutory appeals in the Commonwealth Court and two frivolous notices of removal to the United States District Court. As to the importance of the discovery sought in light of defendant's failure to comply with the order to compel, the interrogatories in question are? 4 The order to compel only required defendant to answer some of plaintiffs interrogatories. Defendant's objections to the interrogatories were sustained as to Interrogatory 1, part of Interrogatory No. 2, and Interrogatories 7, 10, 16 and 17. -10- 98-4145 EQUITY TERM (1) Defendant was directed to answer part of Interrogatory No. 2 by stating his annual salary and any other income for the years 1996, 1997, 1998 and 1999 to date. This information is important for plaintiff to meet any defense that defendant might raise with respect to any prior or current financial inability to bring his properties into compliance with the Borough's codes. (2) Defendant was required to answer Interrogatory No. 5 which asked "Give the carrier name, policy number, and policy limits for each and every policy insuring each of the parcels of real estate owned by you in the Borough of Carlisle; also state the nature of coverages under each." Plaintiff is seeking an order that an agent be appointed to manage Barrett's properties and to bring those properties into compliance with the BOCA Code and Historic District regulations. Knowledge as to the status of insurance coverage on each property is important as it relates to any relief that may be warranted. (3) Defendant was directed to answer Interrogatory No. 14 which asked: For each parcel of real estate situate in the Borough of Carlisle in which you have an ownership interest, state: (A) whether such parcel is vacant or improved with a structure or structures and identify the type(s) of structure; (B) the deed reference of your deed; (C) the date of acquisition; (D) the purchase price; (E) whether or not it is encumbered by debt and identify the creditor, current unpaid balance owing, required monthly payment and record reference; (F) whether the structure is occupied and by whom, and if not, the last date it was occupied during the ownership and by whom; (G) the reason the structure is not occupied; (H) the total sum you have spent for maintenance, repair, improvement or betterment, or demolition of such property since the date -11- 98-4145 EQUITY TERM of your purchase; and (I) if you removed, or caused to be removed, any structure on the parcel, state when the structure(s) were removed and the reason for removal. Given the nature of the relief sought, all of this information goes to matters which would be expected to be raised in the trial and for which plaintiff should be properly prepared. (4) Defendant was directed to answer Interrogatory No. 15 which asked: For each property identified in the foregoing Interrogatory, state the following: (A) identify any work you performed on each property in the nature of maintenance, repairs, improvements, betterment or demolition; (B) for each work identified in the preceding subsection, state whether or not you applied for any building permits to perform such work; and (C) for each work identified in the preceding subsection, whether or not you obtained any building permits to perform such work. This information goes directly to the central issue regarding the case which is defendant's alleged long continued failure to comply with the Borough's codes. With regard to the order to produce documents, the documents in question are? (1) Defendant was ordered in Request No. 6 to produce "All written rental records, inclusive of income and expense statements for each of the properties owned by Defendant in the Borough of Carlisle." With respect to any relief that may be warranted it is essential to plaintiff to know the full rental status of each property. (2) Defendant was ordered in Request No. 7 to produce "All records reflecting all s The order to compel only required defendant to produce some of the documents sought by plaintiff. Defendant's objections to the request for documents were sustained as to requests No. 2, 8, 9 and 10. -12- 98-4145 EQUITY TERM income, of any nature whatsoever, and all expenses related to each of the properties owned by you in the Borough of Carlisle during your period of ownership." This information properly supplements information regarding defendant's financial status to meet any issue regarding defendant's past or current financial ability to comply with the Borough's codes. (3) Defendant was ordered in Request No. 11 to produce "Copies of the declaration pages of each policy of insurance applicable to each parcel of real estate owned by you in the Borough of Carlisle." This information properly supplements and verifies the required information regarding insurance in Interrogatory No. 5. For the aforesaid reasons we find that the importance of the precluded evidence is considerable in light of defendant's failure to comply with the discovery order. In Stewart v. Rossi, supra, the Superior Court of Pennsylvania stated that prejudice for the purposes of a discovery violation is said to result any time there is a substantial diminution of a party's ability to properly present its case. We find that there is a substantial diminution in plaintiff's ability to properly present its case. The operative term here is "properly present its case." The imprisonment of defendant for civil contempt has not altered his stubborn refusal to continue his delaying tactics in bringing this case to trial. Balancing the equities we are satisfied that unless defendant forthwith complies with the discovery order his conduct calls for the imposition of the most severe sanction of default under Rule 4019(c)(3). At this juncture, neither notice nor an additional hearing is a -13- 98-4145 EQUITY TERM necessary prerequisite to the imposition of this sanction. Pride Contracting, Inc. v. Biehn Construction, Inc., supra. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this f~-~ day of November, 1999, IT IS ORDERED: (1) If defendant fails to respond completely to the interrogatories and production of documents required by this court's order of June 3, 1999, not later than Wednesday, December 1, 1999, the following relief will be ordered: (a) a default judgment will be entered in favor of plaintiff and against defendant; (b) an agent will be appointed to manage defendant's eleven properties within the Historic District of the Borough of Carlisle in order to bring those properties into compliance with the Code and Historic District regulations; (c) an injunction will be issued prohibiting defendant from performing any repairs or alterations to any of his properties without first receiving certificates of appropriateness and building permits for such work; (d) the Borough will be awarded reasonable attorney fees in this action; (e) a further hearing will be conducted for the issuance of additional equitable relief necessary to effectuate the aforesaid provisions. (2) Defendant is released from his commitment to the Cumberland County Prison pursuant to the orders of October 7 and 13, 1999. -14- 98-4145 EQUITY TERM Edward Schorpp, Esquire For Plaintiff Robert Barrett, Pro se 1101 Claremont Road Cumberland County Prison Carlisle, PA 17013 :saa BYEd t~~gar B. Bayley, J. -15-