COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68460 MICHAEL A. BUEMI, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION OHIO INSULATION AND ACOUSTICS, : ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 268887 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Michael A. Buemi, Pro Se P.O. Box 602190 Cleveland, Ohio 44102-0190 For defendants-appellees: William F. Scully, Jr. REMINGER & REMINGER CO., LPA 113 St. Clair Avenue Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant-plaintiff, Michael A. Buemi, is appealing the final judgment in this case granting summary judgment to appellees- defendants Ohio Insulating and Acoustics, Inc., Max Friedler and Stephen Friedler. Defendants Barbara A. Thompson, William W. Milligan, John E. Jones and John D. Jacob (employees of the Unemployment Compensation Board of Review) were dismissed for lack of subject matter jurisdiction. Appellant did not serve Thompson, Milligan, Jones and Jacob with a notice of appeal. For the following reasons, we affirm. Ohio Insulating and Acoustics, Inc. is an Ohio corporation. Stephen Friedler was president and Max Friedler was vice-president of the corporation. In 1989, Ohio Insulating hired appellant as an independent contractor to install insulation. In the spring of 1990, appellant was retained as an employee. In July of 1990, appellant was injured on the job. Appellant returned to work around May of 1991. While at work, appellant became involved in arguments with employees of the builders. The arguments resulted in two builders banning appellant from working on their jobs. Stephen Friedler informed appellant that Ohio Insulation had no other jobs where they could use appellant. Stephen Friedler allegedly told appellant he would recall appellant when he acquired more jobs with other builders. Appellant applied for unemployment compensation. The administrator initially determined appellant was discharged for just cause and was ineligible to receive benefits. Upon a motion -3- for reconsideration, benefits were allowed. Ohio Insulation appealed to the Board of Review. After a hearing, the Board determined appellant was discharged for just cause. The Board disallowed appellant's application for further appeal. Appellant did not appeal this decision to the Court of Common Pleas within thirty days. The Ohio Bureau of Employment Services required appellant to repay benefits paid to appellant in the amount of $6,256.00. Appellant's complaint alleged that Ohio Insulation, Max Friedler and Stephen Friedler failed to pay into worker's compensation and failed to pay into the unemployment compensation fund until August of 1990. Appellant asserted these three defendants should be fined under R.C. 4141.99. Allegedly, these defendants also falsely reported appellant's employment period as May 1991 to December 1991. Appellant claimed wrongful discharge and negligence in failure to inform him he was terminated. Appellant prayed for monetary damages against all the defendants. He asked to be awarded unemployment compensation. I. Appellant's first and third assignments of error are interrelated. They state: I. THE COURT OF COMMON PLEAS FAILED TO ADDRESS OR ENTERTAIN ANY MOTIONS FILED BY THE PLAINTIFF- APPELLANT. II. FOUR DEFENDANTS WERE DISMISSED WITHOUT AN ORDER BEING ISSUED. -4- Appellant asserts the trial court did not rule upon his motion for prejudgment attachment, motion to proceed in forma pauperis, opposition motion to defendants' motion to dismiss, subpoena for production of documents and motion for order compelling discovery. The trial court denied the motion for prejudgment attachment in its order dated August 8, 1994. In this same order, the court granted the motion to dismiss filed by defendants Thompson, Milligan, Jones and Jacob, thus ruling on appellant's opposition motion. The trial court's failure to rule upon appellant's motion to proceed in forma pauperis was harmless error. Appellant proceeded with his action. See Section 1915, U.S. Code, Title 28. Appellant's subpoena under Civ.R. 45 was improper because Civ.R. 45 applies to production of documents by non-parties. Civ.R. 34 and 37 set out the proper procedure for production of documents by a party. The trial court's failure to rule on appellant's motion to compel discovery was harmless error. See Civ.R. 61. Appellant contends appellees failed to provide a list of insulating jobs done by appellant for appellees, a list of all current and former employees and information on the payments appellees made into unemployment compensation. Even if appellant was supplied with this information and assuming the information supported appellant's position, appellees would still be entitled to summary judgment. The reasons why summary judgment was proper will be discussed in more detail below. Accordingly, this assignment of error is overruled. -5- II. Appellant's second assignment of error states: DEFENDANTS CLAIM THAT PLAINTIFF HAS FAILED TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED. Defendants were granted summary judgment, not a motion to dismiss pursuant to Civ.R. 12(B)(6). Accordingly, this assignment of error is overruled. III. Appellant's fourth assignment of error states: DEFENDANTS SOLD EQUIPTMENT (SIC) AND COMPANY PROPERTY TO KEEP IT OUT OF THE COURTS REACH. The trial court correctly denied appellant's motion for prejudgment attachment. Appellant's motion failed to set forth facts showing appellees were about to dispose of the property with the intent to defraud creditors. See R.C. 2715.03(B), 2715.01, Kalmbach Feeds, Inc. v. Lust (1987), 36 Ohio App.3d 186. Additionally, appellant did not fulfill the procedural requirements of R.C. 2715.041. Appellant now contends appellees have fraudulently sold certain property. There is no evidence in the trial court record of such sales. This court cannot consider matters outside the record. State v. Ishmail (1978), 54 Ohio St.2d 402. Additionally, this assignment of error is moot because appellees were properly granted summary judgment. Accordingly, this assignment of error is overruled. -6- IV. Appellant's fifth assignment of error and tenth assignment of error are interrelated. They state: V. DEFENDANTS FAILED TO PAY INTO THE WORKERS (SIC) COMPENSATION FUND AND UNEMPLOYMENT COMPENSATION FUND. X. PLAINTIFF-APPELLANT HAS THE RIGHT TO SEE THE IMPOSITION OF FINES AGAINST THE DEFENDANTS FOR WRONGFUL ACTS. Appellant does not have standing to sue his employer for violations of R.C. 4141.01 to 4141.46. R.C. 4141.27 provides that the Attorney General may bring such an action, but no private cause of action is provided. Additionally, appellant has not shown how the alleged past failure to pay into unemployment compensation prejudiced him. Appellant's unemployment benefits were denied because appellant was found to be discharged for just cause and were not denied because of the employer's failure to pay into the fund. Appellant did not submit any evidence that appellees failed to pay into worker's compensation, or any evidence of how his benefits were affected. A party opposing a motion for summary judgment cannot rest on the allegations of his pleadings, but must, by affidavit or otherwise, set forth specific facts showing there is a genuine issue for trial. Civ.R. 56 (E), see Wing v. Anchor Media (1991), 59 Ohio St.3d 108. Accordingly, this assignment of error is overruled. V. -7- Appellant's sixth assignment of error states: DEFENDANTS FAILED TO RESPOND TO A REQUEST FOR PRODUCTION OF DOCUMENTS. The record shows that appellees did respond to appellant's request for production of documents by supplying documents for two of the requests and objecting to the three remaining requests. Even if appellees erroneously failed to supply the documents requested, the error is harmless. See Civ.R. 61. As discussed above, even if appellant obtained the requested documents and the information was favorable to appellant, appellees would still be entitled to summary judgment. Accordingly, this assignment of error is overruled. VI. Appellant's seventh assignment of error states: DEFENDANTS FAILED TO COMPLY WITH A SUBPEONA (SIC) FOR PRODUCTION OF DOCUMENTS. As discussed above, a Civ.R. 45 subpoena was not the proper method to obtain documents from a party. See Civ.R. 45(A)(1). Accordingly, this assignment of error is overruled. VII. Appellant's eighth assignment of error states: DEFENDANTS (SIC) COUNSEL VIOLATED MANY CANNONS AND ETHICS OF THE BAR ASSOCIATION. Appellant has offered no facts to support these allegations. Neither has appellant stated how defense counsel's actions prejudiced appellant or affected the outcome of this case. -8- Accordingly, this assignment of error is overruled. VIII. Appellant's ninth assignment and eleventh assignment of error will be discussed together. They state: IX. PLAINTIFF-APPELLANT WAS NEVER FORMALLY TERMINATED FROM EMPLOYMENT. XI. PLAINTIFF-APPELLANT HAD AN ORAL CONTRACT/AGREEMENT WITH DEFENDANTS DURING HIS EMPLOYMENT. Appellant asserts that appellees offered him employment and guaranteed him plenty of work and jobs; and appellant accepted. Appellant believes that under this contract, appellant had a duty to supply him with employment and breached the duty by laying him off. Appellees also breached the oral contract by never informing appellant he was terminated and would not be recalled. Unless an employer and employee agree otherwise, an employment contract may be terminated at any time at the pleasure of either party, for any reason not contrary to law. Mers. v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100. There was no evidence here the parties agreed appellant would be employed indefinitely or for a certain time frame, or that the parties agreed to any other restrictions on their ability to terminate the employment relationship. Thus, appellees had no duty to continue appellant's employment. Even if Stephen Friedler's statements could be construed as a promise to recall appellant, appellant presented no proof, by affidavit or otherwise, that Stephen Friedler made these -9- statements. Furthermore, there was no evidence Ohio Insulation ever obtained jobs with other builders. Appellant did receive notice of termination, subject to recall. Appellant cannot complain he was not notified of his termination. Accordingly, this assignment of error is overruled. X. Appellant's twelfth assignment of error states: THE TRIAL COURTS (SIC) HANDLING OVERALL OF THIS ACTION WAS VERY BIAS (SIC) TOWARDS THE PLAINTIFF-APPELLANT. The record does not reflect that the court was biased against appellant. As discussed above, the trial court either ruled on appellant's motions or its failure to rule was not prejudicial to appellant. Appellant claims his eighth amendment rights against cruel and unusual punishment were violated. This right only applies to criminal proceedings where a defendant is sentenced or "punished." The fact that appellant's case was disposed of on summary judgment does not mean appellant was denied his constitutional rights of due process or access to the courts. See Houk v. Ross (1973), 34 Ohio St.2d 77, State ex rel. Cuyahoga County Hospital v. Ohio Bureau of Worker's Compensation (1986), 27 Ohio St.3d 25. Summary judgment is a procedural device designed to terminate litigation and avoid a formal trial when there is nothing to try. Altvater v. Claycraft Co. (1991), 71 Ohio App.3d 264, 267. -10- Summary judgment is proper if: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) construing the evidence in favor of the non- moving party, reasonable minds can come to but one conclusion, and that conclusion is adverse to the non-movant. Civ.R. 56(C), Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. As discussed above, appellees are entitled to judgment as a matter of law on appellant's claim for fines for nonpayment of unemployment contributions, and inaccurate reporting to unemployment because appellant has no standing to sue under R.C. 4141.27. Appellant presented no evidence concerning appellees' alleged failure to pay into worker's compensation. There are no genuine issues of fact as to appellant's status as an at-will employee. Thus, appellee was entitled to judgment as a matter of law on appellant's claim for breach of contract and wrongful termination. Appellant's claim for unemployment compensation is barred by collateral estoppel. See Pullar v. Upjohn Health Care Services, Inc. (1984), 21 Ohio App.3d 288. Appellees Max Friedler and Stephen Friedler are also entitled to summary judgment because appellant presented no facts which would allow appellant to pierce the corporate veil. See Alside Supply Co. v. Wager (1993), 89 Ohio App.3d 539 The trial court properly granted summary judgment in favor of appellees. The court's decision was not biased against appellant. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -11- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, P.J., and BLACKMON, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .