R.C. Bowman, Inc. v. Bowman, R., III

J-S35035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
R.C. BOWMAN, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD C. BOWMAN, III :
:
Appellant : No. 417 MDA 2021
Appeal from the Order Entered March 2, 2021
In the Court of Common Pleas of Clinton County Civil Division at No(s):
1690-2019
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JANUARY 14, 2022
Richard C. Bowman, III (Bowman III) appeals from the order entered in
the Court of Common Pleas of Clinton County (trial court) granting R.C.
Bowman, Inc.’s (R.C. Bowman) post-trial motion for contempt for his failure
to comply with the verdict issued in replevin to return certain property within
30 days of the order. We affirm in part and vacate in part.
The background facts of this matter are contentious and we recite only
those necessary for this appeal from our independent review of the record and
the trial court’s December 4, 2020 and March 2, 2021 opinions.
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* Retired Senior Judge assigned to the Superior Court.
J-S35035-21
I.
R.C. Bowman, Inc. was incorporated on April 19, 1999, with Richard C.
Bowman, Jr., Robert K. Bowman (Rob Bowman), and Bowman III each having
a one-third interest in said corporation. Rob Bowman and Bowman III are
twin brothers and Richard C. Bowman, Jr. is their father. Bowman III was
president, shareholder and employee of the corporation since its founding until
a February 8, 2019 shareholders’ meeting he failed to attend despite notice.
At the meeting, because he received no nominations as a director or officer,
he was removed as president. He remained an employee until his March 25,
2019 termination and continues to be a one-third shareholder.
It is undisputed that shortly after his removal as president, Bowman III
took several items from his R.C. Bowman office without permission (Property).
The Property included:
a. Corporate checks 15001 through 15024;
b. 2011 Chevrolet Crew Cub pickup truck;
c. Desk and couch;
d. Two chairs;
e. iPad;
f. Corporate safe;
g. Corporate vehicle titles, spare keys, and key box for vehicles;
h. Computer with two screens; and
i. Military medals.
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(Joint Statement of Undisputed Facts, at Paragraph 19).1
On April 8, 2019, Bowman III established a new corporation, Richard C.
Bowman, III, Inc. Since May 13, 2019, Richard C. Bowman, III, Inc., trading
as Bowman Excavating, Paving and Concrete, has conducted a business in
direct competition with R.C. Bowman, Inc.
On November 18, 2019, Bowman III filed a complaint against R.C.
Bowman seeking to compel R.C. Bowman to produce the books and records
for his inspection as shareholder at docket number 1576-2019. On December
12, 2019, R.C. Bowman filed a complaint setting forth five counts against
Bowman III in this case at docket number 1690-2019: Count I:
misappropriation of trade secrets pursuant to Pennsylvania’s Uniform Trade
Secrets Act (PUTSA);2 Count II: Breach of fiduciary duty; Count III: Equitable
relief; Count IV: Conversion; and Count V: Replevin. In the replevin count,
R.C. Bowman sought the return of the Property. (See Complaint, 12/12/19,
at 5) (pagination provided). In the replevin count, the one that is involved in
this appeal, R.C. Bowman sought an order directing return of the Property. It
did not seek damages.
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1 It is undisputed that the military medals were not owned by R.C. Bowman
or part of the action. (See Statement of Undisputed Facts, at Paragraph 28).
2 12 Pa.C.S. §§ 5301-5308.
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The trial court consolidated the two actions and a two-day non-jury trial
commenced on October 15, 2020. The limited material facts underlying the
replevin action were undisputed. Specifically, Bowman III agreed that he
removed the Property without authorization and that it belonged to R.C.
Bowman. (See Joint Statement of Undisputed Facts, at Paragraph 19); (RR
41a-44a). “[N]o evidence of damages was presented to [the] [c]ourt. Th[e]
[c]ourt received no testimony as to cost of any of the [Property] nor the
damages due R.C. Bowman, Inc.” (Trial Court Opinion, 12/04/20, at 24);
(see id. at 25) (“[A]bsolutely no evidence of money damages was offered by
R.C. Bowman, Inc., at trial.”).
On December 4, 2020, after thorough briefing by the parties, the trial
court entered a verdict granting R.C. Bowman’s action in replevin.3 (See
Opinion, 12/04/19, at 24). The court ordered that Bowman III was to return
the Property and directed that “said return of property shall be arranged
through counsel and shall be completed within thirty (30) days of the date of
this Order.” (Verdict, 12/14/20, at 3) (pagination provided). It did not set
forth any other conditions or grant any damages.
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3 The court’s verdict also granted R.C. Bowman’s claims for misappropriation
of trade secrets as to a customer list and conversion. It denied the remainder
of R.C. Bowman’s claims and Bowman III’s action to inspect the corporation’s
records. Bowman III appealed those decisions at docket numbers 415 MDA
2021 and 416 MDA 2021. They are not the subject of this appeal.
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On the evening of December 24, 2020, Bowman III returned some of
the Property. On December 28, 2020, R.C. Bowman filed a post-trial motion
alleging Bowman III returned the Property “during torrential rains” and that
the items were “substantially damaged or destroyed.” (Post-Trial Motion by
R.C. Bowman, Inc., 12/28/20, at Paragraph 6). The corporation conceded
that “[s]ince the destruction of the personal property of R.C. Bowman Inc.
occurred at a time when that property has been unlawfully taken and retained
by Richard C. Bowman, III[,] … the proper claim for relief would be a new
action for damages to personal property.” (Id. at Paragraph 7). The court
scheduled argument and a hearing for February 23, 2021.
On January 28, 2021, Bowman III filed a response in which he requested
discovery and argued that a motion for contempt was an improper subject of
a post-trial motion because the alleged damage was not discovered until after
trial and, as conceded by R.C. Bowman, the damage to the Property created
a new cause of action; thus, it was required to file a complaint providing
Bowman III with notice of the allegations against him. (Response to Post-
Trial Motions of R.C. Bowman, 1/28/21, at Paragraphs 3, 7, 10-12). On
February 17, 2021, Bowman III inspected the Property.
After a hearing, the trial court explained the circumstances regarding
the return of the Property and costs incurred by R.C. Bowman as follows:
The return [of the Property] occurred on December 24, 2020,
Christmas Eve, in the pouring rain with the items exposed to the
weather. The two (2) chairs, the Corporate checks, and some of
the vehicle titles were not returned. Although the computer was
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returned, the hard drive was removed from the computer. R.C.
Bowman, Inc. has complained through testimony from Robert K.
Bowman that the following items were damaged: 2011 Chevrolet
Crew Cab Pickup Truck, the couch, and the desk. R.C. Bowman,
Inc. also alleged that Richard C. Bowman, III returned the
Corporate safe, but the combination was not forwarded and R.C.
Bowman, Inc. had to engage a locksmith to assist with the
opening of the safe and the installation of a new combination for
the safe.
… [R.C. Bowman] claimed the following damages:
A. Locksmith cost - $85.00;
B. Cost for duplicate titles concerning the titles that were not
returned - $300.00;
C. Cost to replace couch which was damaged - $5,000.00;
D. Cost to replace chair[s] not returned - $3,000.00;
E. Truck repair - $5,079.76; and
F. Cost to refinish desk top - $235.07.
Total - $13,699.83.
This [c]ourt would note that Richard C. Bowman, III
objected to the Exhibits that established the damages listed above
[based on hearsay.] …
These objections were sustained by this [c]ourt. However,
this [c]ourt must note that no objection was raised to the
testimony of Robert K. Bowman, who testified to said amounts. …
(Trial Court Opinion and Order, 3/02/21, at 3-4); (See N.T. Hearing, 2/23/21,
at 21-30).
Counsel for Bowman III cross-examined Rob Bowman about the
foregoing. On cross-examination, Rob Bowman stated that the damage to the
nine-year-old pickup truck was not caused by the rain, but at some time while
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in Bowman III’s possession. He conceded that he was not certain when the
scratches and other body damage occurred; whether prior to Bowman III’s
termination and removal of the Property or thereafter. He admitted that the
couch and desk had been in R.C. Bowman’s possession for approximately 18
years, that the desk could have been damaged before Bowman III removed it
and he had no actual knowledge of what happened to the couch or if
something was sprayed on it. (See N.T. Hearing, at 31-42).
At the conclusion of the hearing, the court entered an order finding
Bowman III in contempt of its December 4, 2020 order. (See Trial Ct. Op.,
3/02/21, at 3-4). It directed that he could purge himself of the contempt by:
(a) Returning the hard drive of the computer;
(b) Returning the two (2) chairs; and
(c) Paying R.C. Bowman, Inc.:
(1) $85.00 - locksmith cost[;]
(2) $235.07 – refinish desktop;
(3) $300.00 – duplicate title cost; and
(4) $5,079.76 – truck repair cost.
$5,669.83 Total.
The court further ordered that Bowman III’s failure to purge himself of
contempt would result in the scheduling of a proceeding to impose sanctions.
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(See id. at 4, 7-8). Bowman III timely appealed and filed a court-ordered
statement of errors complained of on appeal.4 See Pa.R.A.P. 1925.
On appeal, Bowman III argues that the trial court erred or abused its
discretion in: (1) holding the evidentiary hearing; (2) finding him in
contempt; and (3) awarding damages that were punitive, unreasonable,
arbitrary and excessive.5
II.
A.
Bowman III first argues that “the relief sought by R.C. Bowman was not
the proper subject of a post-trial motion” because it “did not seek relief from
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4 On May 11, 2021, this Court issued a rule to show cause order directing
Bowman III to show cause why the appeal should not be quashed as taken
from an interlocutory order where it directed him to purge himself within 30
days or the court would schedule a proceeding to impose sanctions. See
Lachat v. Hinchcliffe, 769 A.2d 481, 488 (Pa. Super. 2001) (“Until sanctions
are actually imposed by the trial court, an order declaring a party to be in
contempt is interlocutory and not appealable.”) (citation omitted). In his
response, Bowman III argued that despite the order’s language stating that
sanctions would be imposed for further non-compliance, they already had
been since it directed him to pay $5,699.83 for damages suffered because of
his failure to comply with the December 4, 2020 order. (See Response to
Rule to Show Cause Order, 5/17/21, at 2-3). We agree. See Hinchcliffe,
supra at 488 (finding contempt order directing appellant “to make remedial
payment” for costs incurred due to contemnor’s actions imposed sanctions
and was final and appealable). Thus, we will consider the merits of this appeal.
5 “[A]ppellate review of a finding of contempt is limited to deciding whether
the trial court abused its discretion.” Hinchcliffe, supra at 487 (citation
omitted).
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the trial court concerning the conduct of the trial or the trial decision.” (Id.
at 20).
Pursuant to Rule 227.1 of the Pennsylvania Rules of Civil Procedure,
after a trial, a party may file a motion seeking post-trial relief. See Pa.R.C.P.
227.1(a). The purpose for Rule 227.1 is “to provide the trial court with the
opportunity to correct errors in its ruling and avert the need for appellate
review.” Warfield v. Shermer, 910 A.2d 734, 737 (Pa. Super. 2006), appeal
denied, 921 A.2d 497 (Pa. 2007) (citation omitted). Toward that end, the
court may order a new trial, direct the entry of judgment in favor of a party,
remove a nonsuit, “affirm, modify or change the decision” or enter any other
appropriate order. Pa.R.C.P. 227.1(a).6
In this case, R.C. Bowman’s post-trial motions asserted, in pertinent
part, that the “court included, in its Opinion and Order, a decision in favor of
R.C. Bowman, Inc., in replevin [and] R.C. Bowman, Inc. seeks Post Trial Relief
with regard to that decision, limited to subsequent damage to that
personal property.” (Post Trial Motions by R.C. Bowman, at Paragraph 3)
(emphasis added). As can be seen, those motions are not asserting trial court
error that would justify any of the remedies identified in Rule 227.1(b). While
____________________________________________
6 Although not raised by Bowman III, we note that “[a] motion for post-trial
relief may not be filed to matters governed exclusively by the rules of petition
practice.” Rule 227.1, Note. Pursuant to the Crawford County Local Rules of
Civil Procedure, an action for civil contempt is brought pursuant to petition
practice. See CRAWFORD CTY CT RCP Rule 206.1(a).
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the subsection allows a court to enter “any other appropriate order,” such
order would be filed to correct errors in the court’s ruling or decisions made
at trial. See Shermer, supra at 737. Because the post-trial motions on their
face, alleged grounds and sought damages not contemplated by Rule 227.1,
we agree with Bowman III that they were not the proper subject of a post-
trial motion.7
Nonetheless, we note that, “[w]ith respect to civil contempt,[8] it is
axiomatic that courts have always possessed the inherent power to enforce
their orders and decrees by imposing sanctions for failure to comply with said
orders.” Wood v. Geisenhemer-Shaulis, 827 A.2d 1204, 1207 (citation,
bracket and internal quotation marks omitted). Although the motion to
compel was filed improperly, if we vacate and remand, the practical effect
would be the filing of the same petition for contempt. In the interest of judicial
economy, where the December 4, 2020 order was entered after a full trial,
Bowman III responded to the motion, he conducted an inspection of the
alleged damages and his counsel appeared at the hearing and thoroughly
____________________________________________
7 R.C. Bowman fails to address how its motion was properly filed as part of a
post-trial motion and as stated previously, it admitted that it should have been
brought as a separate action since R.C. Bowman is making claims for damages
that allegedly occurred after trial. (See R.C. Bowman’s Brief, at 10-13);
(Complaint, at Paragraph 5).
8It is undisputed that the contempt proceeding in this case was civil in nature.
(See Trial Ct. Op., 3/02/21, at 4-5).
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cross-examined Rob Bowman, we will consider this appeal’s merits. See
Diamond v. Diamond, 792 A.2d 597, 601 (Pa. Super. 2002) (“Ordinarily,
due process requires a five-step procedure prior to a finding of civil contempt.
However, when the contempt proceedings are predicated on a violation of a
court order that followed a full hearing, due process requires no more than
notice of the violations alleged and an opportunity for explanation and
defense.”) (citation and internal quotation marks omitted).
B.
“The order that forms the basis for the contempt process in civil
proceedings must be definitely and strictly construed.” Geisenhemer-
Shaulis, supra at 1207 (citations omitted).
In proceedings for civil contempt of court, the general rule
is that the burden of proof rests with the complaining party to
demonstrate, by preponderance of the evidence, that the
defendant is in noncompliance with a court order. However, a
mere showing of noncompliance with a court order, or even
misconduct, is never sufficient alone to prove civil contempt.
To be punished for contempt, a party must not only have
violated a court order, but that order must have been definite,
clear, and specific-leaving no doubt or uncertainty in the mind of
the contemnor of the prohibited conduct.
Because the order forming the basis for civil contempt must
be strictly construed, any ambiguities or omissions in the order
must be construed in favor of the defendant. In such cases, a
contradictory order or an order whose specific terms have not
been violated will not serve as the basis for a finding of contempt.
To sustain a finding of civil contempt, the complainant must
prove certain distinct elements: (1) that the contemnor had
notice of the specific order or decree which he is alleged to have
disobeyed; (2) that the act constituting the contemnor’s violation
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was volitional; and (3) that the contemnor acted with wrongful
intent. 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.
Lachat v. Hinchcliffe, 769 A.2d 481, 488 (Pa. Super. 2001) (citations,
quotation marks and some emphasis omitted).
In this case, the trial court found Bowman III in contempt because he:
[O]bviously was aware of the December 4, 2020 Order because
Richard C. Bowman, III returned some of the items required by
this [c]ourt to R.C. Bowman, Inc. Richard C. Bowman, III had
previously stipulated that those were owned by R.C. Bowman,
Inc., and that Richard C. Bowman, III had taken these items from
the property of R.C. Bowman, Inc. Richard C. Bowman, III did
not return other items and returned some items damaged.
Richard C. Bowman, III at the proceeding on February 22, 2021
offered no defense to the allegations of R.C. Bowman, Inc. It is
clear that Richard C. Bowman, III has violated this [c]ourt [o]rder.
….
(Trial Ct. Op., 3/02/21, at 5-6).
C.
We first consider Bowman III’s argument that the court abused its
discretion in holding him in contempt because the December 4, 2020 order
“was silent on the condition the property was to be returned” and “R.C.
Bowman did not offer any evidence to demonstrate when the [P]roperty was
damaged.” (Bowman III’s Brief, at 25, 26).
The December 4, 2020 court order directed that Bowman III “must
return” the Property. (Order, at 3) (pagination provided). It stated further
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that “[s]aid return of property shall be arranged through counsel[9] and shall
be completed within thirty (30) days of the date of this [o]rder.” (Id.).
We agree with Bowman III that there is no language in the court’s order
as to the condition of the Property to be returned, whether it was to be as it
was prior to Bowman III’s termination, as it existed at the time of trial or any
other qualifying language. While it is logical to infer that the court’s intent
was that the Property be returned in the same condition that it was when
Bowman III removed it, the court omitted any such qualifier from its order.
Hence, strictly construing any omissions in the order in favor Bowman III, we
cannot find that he was in contempt of the court’s order for returning the
Property in the condition he did. See Hinchcliffe, supra at 488.
We also note that Rob Bowman admitted that R.C. Bowman was moving
for contempt due to the damage that occurred to the Property not only at the
time it was returned in the rain. For example, he testified that the truck was
damaged as if something sharp struck the doors and someone had sat on the
roof. Its hood was scratched as if something had been thrown across it. The
couch was stained by something being sprayed on it. (See N.T. Hearing, at
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9 Rob Bowman testified that the Property was returned without any notice.
(See N.T. Hearing, at 25-27). However, the court does not mention this fact
as a basis for its decision, and R.C. Bowman did not assert this as a ground
for seeking a contempt finding or make any argument about it either at the
hearing or in its brief to this Court. We do not make factual findings and will
not develop an argument on behalf of a party. See In re R.D., 44 A.3d 657,
674 (Pa. Super. 2012).
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19, 21-30). However, to the extent that the damages could have been raised
at trial, they are waived. “The failure of a party to present sufficient evidence
before or during trial to support a decision in that party’s favor cannot be
cured by a motion filed pursuant to Rule 227.1. … where the new evidence
cannot be characterized as after-discovered evidence[.]” Claudio v. Dean
Mach. Co., 831 A.2d 140, 145 (Pa. 2003) (citations omitted).
Here, as noted by Bowman III, R.C. Bowman had the right to inspect
the Property during discovery for the underlying litigation pursuant to Rule
4009.31 and failed to do so. (See Bowman III’s Brief, at 23-24); Pa.R.C.P.
4009.31. At the conclusion of trial, the court expressly found that R.C.
Bowman provided no evidence of damages or costs and, therefore, it denied
any monetary award. (See Trial Ct. Op., 12/04/20, at 24-25; Order, at 3).
Because any damages that might have occurred prior to trial were required to
be presented at the trial and R.C. Bowman failed to do so, they are waived,
and the only damages R.C. Bowman could seek were those incurred post-
trial. We agree that since any pre-trial damages were waived, the court should
not have considered such evidence at the hearing.
In fact, even if such evidence were properly considered, Rob Bowman
was unable to definitively say if the damage happened during Bowman III’s
unlawful possession, whether pre- or post-trial. He testified that R.C. Bowman
possessed the couch and desk for 18 years and the truck for nine before
Bowman III removed them when he left the company. Although he saw the
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pertinent Property when he walked by it while it was in R.C. Bowman’s
possession, he was unable to say whether the damage occurred before or after
it was in Bowman III’s unlawful possession. (See N.T. Hearing, at 31-38).
Based on all the foregoing, R.C. Bowman failed to prove that Bowman
III was in contempt of the court’s December 4, 2020 order because that order
did not speak to the condition of the Property to be returned. Additionally,
even assuming arguendo that the order did so, and the trial court properly
considered waived evidence, Rob Bowman was unable to testify that the
damage actually occurred while it was in Bowman III’s possession. See
Hinchcliffe, supra at 488.
D.
Bowman III next claims that “there was no evidence presented … and
the trial court failed to make a finding[] that [his] act in not returning the hard
drive and two office chairs was volitional and done with wrongful intent.” (Id.
at 26).10
Although we are cognizant that a violation of an order alone is
insufficient to prove contempt, “[t]his Court has previously acknowledged that
intent can be difficult to prove directly because it is a subjective frame of
mind.” Commonwealth v. Faulk, 928 A.2d 1061, 1070 (Pa. Super. 2007),
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10 R.C. Bowman’s post-trial motion did not seek relief on the basis that R.C.
Bowman failed to return some of the Property, only that when it was returned,
it was damaged. (See Post Trial Motions of R.C. Bowman, at Paragraph 6).
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appeal denied, 944 A.2d 756 (Pa. 2008) (citation and internal quotation marks
omitted). “Civil contempt may be proved by circumstantial evidence and
logical inference from other facts. Wrongful intent can be inferred from
circumstantial evidence.” Waggle v. Woodland Hills Assoc., Inc., 213 A.3d
397, 404 (Pa. Cmwlth. 2019) (citations, internal quotation marks and footnote
omitted).11
It is undisputed that Bowman III was aware of the court’s order.
Further, at the February 22, 2021 hearing, Rob Bowman testified that the
corporate checks, some titles, two chairs, the computer hard drive and the
key box were not returned. (See N.T. Hearing, 2/22/21, at 19). This violated
the plain language of the order directing Bowman III to return the Property
and Bowman III did not provide any evidence or testimony to dispute Rob
Bowman’s representations.12
While we agree that Rob Bowman provided no express evidence that
Bowman III acted volitionally and with the wrongful intent necessary to
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11 “This Court is not bound by decisions of the Commonwealth Court.
However, such decisions provide persuasive authority, and we may turn to
our colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010), appeal
denied, 12 A.3d 371 (Pa. 2010).
12 We are aware that the order directed return of the computer without
expressly stating that it be returned with the hard drive and the corporate
safe with its combination. However, returning a computer without a hard
drive and a safe without a known combination is akin to not returning them
at all because they are unusable.
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support civil contempt when he failed to return items of R.C. Bowman’s
Property, such could be proven based on circumstantial evidence available to
the court. See Woodland Hills Assoc., Inc., supra at 404. The trial court
was fully aware of the contentious nature of this litigation and the
circumstances surrounding Bowman III’s termination, having sat as the
arbiter at the non-jury trial. The court’s December 4, 2020 order expressly
directed Bowman III to return the Property and he chose to return only some
of it, in violation of that order. In consideration of the circumstances within
the court’s knowledge, we find that it properly exercised its discretion when it
concluded that Bowman III acted volitionally and with wrongful intent when
he failed to return all the Property. Bowman III’s argument to the contrary
lacks merit.
E.
In his final argument, Bowman III claims that the trial court abused its
discretion in awarding punitive, unreasonable, arbitrary and excessive
damages. (See Bowman III’s Brief, at 27-28). Because of the damages we
have already disallowed, the only remaining damages at issue are for $385.00
representing $85.00 for the cost incurred in obtaining a locksmith and $300.00
in duplicate title costs. Bowman III contends that the locksmith and
replacement titles were unreasonable because R.C. Bowman did not ask him
for the combination or the location of the titles after he failed to provide them.
(See id. at 28). While those costs were incurred, there was no evidence
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offered that a demand was made on Bowman III for the combination of the
safe or the titles to the vehicle. Absent such evidence, Bowman III could not
be held liable in contempt for those costs.
Accordingly, for the reasons set forth above, we affirm that portion of
the trial court’s March 2, 2021 order finding that Bowman III was in contempt
for not returning two chairs and the computer hard drive to R.C. Bowman
within 30 days of its December 4, 2020 order. However, we vacate that
portion of that order directing Bowman III to pay $235.07 to refinish the
desktop and $5,079.76 in truck repair costs, as well its directing Bowman III
to pay $85.00 in locksmith costs and $300.00 in duplicate title costs.
Order affirmed in part and vacated in part. Case remanded. Jurisdiction
relinquished.
Judge Olson joins the memorandum.
Judge Kunselman files a concurring/dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2022
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